De Rocher, In Interest of, 54674

• Decision Date: 17 June 1971
• Docket Number: No. 54674,54674
• Citation: 187 N.W.2d 730
• Parties: In the Interest of Harold DE ROCHER and Hans De Rocher, Children.
• Court: Iowa Supreme Court

Page 730

187 N.W.2d 730

In the Interest of Harold DE ROCHER and Hans De Rocher, Children.

No. 54674.

Supreme Court of Iowa.

June 17, 1971.

Kurth & Bunger, Carroll, for Marie DeRocher, appellant.

Robert D. Nelson, Audubon, for appellee, State of Iowa.

Dale D. Levis, Audubon, for appellees, Harold DeRocher and Hans DeRocher.

LeGRAND, Justice.

This tormenting appeal requires us to pass on the fate of two young boys, Harold DeRocher and his brother, Hans, who are alleged to be dependent and neglected children within the meaning of section 232.2, The Code.

More than three years ago these charges were first brought by the juvenile probation officer of Audubon County. Harold was then 11, Hans, eight. After a hearing at which the boys and their mother, Marie DeRocher, appeared, the court found the children to be dependent and neglected and ordered that they be 'temporarily committed to the care and custody of the director of Social Services in Audubon County', who was instructed to find a suitable foster home for them.

Four months later Marie DeRocher filed an application asking that the children be returned to her care. A hearing on this application was not held for almost a year, and when it was, the mother's request was denied.

Several months later she filed another application for termination of the temporary commitment of her children. A hearing on this application resulted in an order which returned the children to her care under the continued control of the court as permitted by section 232.33, The Code. The case was referred to the juvenile court of Polk County, where Marie DeRocher then lived, for supervision and subsequent report to the juvenile court of Audubon County.

Still another hearing concerning these young boys was held on August 4, 1970, on the juvenile court's own motion. On that date the court found 'that it would be in the best interest of said Harold and Hans DeRocher to transfer (their) legal custody to the Audubon County Department of Social Services.' This is the order from which an appeal has been taken by the mother. The boys, represented by separate counsel, are listed as appellees.

Mrs. DeRocher raises two propositions relied on for reversal: (1) The order of August 4, 1970, is invalid because there was no finding that the children were neglected and dependent; (2) The evidence is insufficient to support a finding of neglect or dependency.

I. We dispose of the first proposition with only brief comment. Mrs. DeRocher complains because the order on the last hearing did not contain a specific finding of either dependency or neglect. It merely held the boys should be placed in the custody of the Department of Social Services. It must be remembered, however, that there had been a previous finding of dependency and neglect in the original order; that the juvenile court properly exercised a continuing supervision and retained jurisdiction under the provisions of section 232.36, The Code; and that the juvenile court may make new orders from time to time under such continuing jurisdiction without reaffirming in each instance the findings upon which the original commitment was made.

We believe the clear intention of chapter 232 is to provide for the exercise of continuing control, supervision and jurisdiction by the juvenile court over its minor subjects until the cause is dismissed or otherwise terminated. We hold there is no merit in the mother's first proposition.

II. Her second proposition challenging the sufficiency of the evidence to sustain a finding of dependency and neglect is a troublesome one. Before reviewing the evidence which we consider decisive, we state the general principles controlling our decision.

They are: (1) Our review is de novo; (2) a presumption exists that the best welfare of a minor child is served by parental custody; (3) this presumption is rebuttable; (4) the findings of the lower court are entitled to substantial weight but we are not bound by them; and (5) the provisions of chapter 232 are to be liberally construed to protect the welfare of the child. State ex rel. Gilman v. Bacon, 249 Iowa 1233, 1237, 91 N.W.2d 395, 398 (1958); State ex rel. Gering v. Bird, 250 Iowa 730, 735-737, 96 N.W.2d 100, 103, 104 (1959); State ex rel. Wiley v. Richards, 253 Iowa 679, 680, 113 N.W.2d 285, 286 (1962); State ex rel. Bruner v. Sanders, 256 Iowa 999, 1007, 129 N.W.2d 602, 607 (1964); Stubbs v. Hammond, 257 Iowa 1071, 1075-1077, 135 N.W.2d 540, 543 (1965); In re Interest of Morrison Children, 259 Iowa 301, 306, 144 N.W.2d 97, 100 (1966); In re Interest of Donald Yardley, Jr., 260 Iowa 259, 265-269, 149 N.W.2d 162, 166, 167 (1967); section 232.1, The Code. All parties concede these well established and frequently repeated rules. They disagree only about their application to the facts shown by this record.

That record shows Mrs. DeRocher has long had difficulty with these boys. There were early incidents of vandalism and petty theft. According to some witnesses they were permitted to 'run wild' and were without parental control or discipline. After their original placement in the foster home of Allen Ticknor in 1967 both their behavior and...