State v. Stemmler, 47563
| Decision Date | 07 February 1950 |
| Docket Number | No. 47563,47563 |
| Citation | 41 N.W.2d 21,241 Iowa 417 |
| Parties | STATE v. STEMMLER. HILLCREST BABY FOLD, Inc. v. KELLY et al. |
| Court | Iowa Supreme Court |
Sharp & Roggensack, of Elkader, for appellants.
Walter W. Paisley, of Dubuque, for appellees.
F. H. Becker, County Attorney, Dubuque County, Dubuque, for the State.
This action arose in the Dubuque county juvenile court on the petition of Hillcrest Baby Fold, which is a duly authorized child placing agency in Dubuque, against Herbert G. and Mary Joyce Kelly, husband and wife, with whom the agency had placed a child on probation on February 18, 1948. The petition asked that such parties relinquish and surrender such child to the agency. The petition was filed in the original juvenile proceeding in which the child became a ward of the juvenile court, and was resisted by the Kellys.
Herbert G. Kelly was a minister in charge of a church at Elkader, Iowa, in Clayton county. The placement was made as provided by law, section 238.40, Code of 1946, I.C.A. Margaret M. Rickard was a welfare worker at Hillcrest who was succeeded by Mary Richards in May, 1948. The child in question, Mary Jo Stemmler, but called 'Susan' by the Kellys, was a ward of the juvenile court and had originally been placed with Hillcrest by order of the Dubuque county juvenile court. Hillcrest was authorized by such order to place the child for adoption.
In accordance with the statute a contract was executed, and since it is important in the discussion of the case we set out the material parts of the contract.
'Agreement, made and entered into this 18th day of February, 1948, between the Hillcrest Baby Fold of Dubuque, Iowa, party of the first part, and Herbert G. Kelly and Mary Joyce Kelly, husband and wife, of Clayton county, and State of Iowa, parties of the second part, and subject to the approval of the Department of Social Welfare, Division of Child Welfare of Iowa.
'Witnesseth: That the party of the first part, at the request of the parties of the second part, has placed in the case, custody and control of the parties of the second part, at their home in Elkader, Clayton County, Iowa, for a probationary period of one year, the child, Mary Jo, who was born on the 22d day of January A.D., 1946, and who is an inmate of, and under the care, custody and control of said undersigned parties of the second part hereby covenant and agree to perform:
'To notify the Hillcrest Baby Fold promptly of any change of address of the second parties, and in no case leave with, or surrender the child to, a third party, or to remove it from the state without the written consent of the pary of the first part.
'That the first party shall have at all reasonable times access to the child so placed in the home of the second parties and to the home in which the said child is living, and the second parties agree to relinquish and surrender the said child whenever, in the opinion of the first party, or State Board of Control, such relinquishment is to the best interst of the child.
'It is further agreed that the parties of the second part reserve the right to return the said child to the party of the first part any time within one year from the date of this agreement, for due and just cause.
The above was duly signed by the Hillcrest Baby Fold of Dubuque, Iowa, by Margaret M. Rickard, and also by Herbert G. Kelly and Mary Joyce Kelly.
Prior to the filing of the petition for removal the Kellys were apprised of the intention of Hillcrest to withdraw the child, and the reason assigned at the time was the pregnancy of Mrs. Kelly. At that time little Susan was about 2 1/2 years old. Thereafter, on February 10, 1949, the application to remove was filed, entitled, State of Iowa, plaintiff, v. Delores (a.k.a. Mary Jo) Stemmler, defendant. The resistance of Kelly and wife was filed February 23, 1949.
The issues before the juvenile court were whether or not it was for the best interest and welfare of the child that it remain with the Kellys, and whether or not the agreement entered into between the Kellys and Hillcrest Baby Fold should be given full force and effect and the child returned to Hillcrest Baby Fold in accordance with the terms of said agreement. The court decided that the Kellys surrender the child to Hillcrest Baby Fold as being for the best interest and welfare of said child, and in accordance with the terms of the placement contract.
The case was tried as an equity proceeding. The record is long and contains many irrelevant matters. The record is too long to undertake to set out a complete review of the testimony. Both parties agreed, however, that the main issue was the best interest of the child. The decision of removal was eventually largely based on the contract heretofore set out. The return of the child, however, was temporarily suspended until after the birth of the Kellys' child. From this ruling of the district court Herbert G. Kelly and Mary Joyce Kelly appeal.
I. The first proposition argued by appellants, the Kellys, is that the judgment of the court is not consistent with the allegations of the application, nor is it embraced by any issue before the court; that the judgment is based upon an entirely different theory than that raised by the pleadings. We are not convinced that the court erred in this respect. The contract was fully set out in the original application of the Hillcrest Baby Fold and recovery of the custody prayed thereunder; the petition reciting that the best interest and ultimate welfare of the child, as well as that of the Kellys, require that the child be relinquished and returned to the Hillcrest Baby Fold. The effect of the contract was in issue.
The cause came on for hearing on February 24, 1949. A large number of witnesses were examined. Among them was Mary Richards, a welfare worker, who testified as to the circumstances attending the original placement of the child, and as to interviews with the Kelly family thereafter; that she had received information from a welfare worker where the child was located, and as to various reports as to the fitness of the Kellys to take charge of the child; that she called on the doctor (Hommel) who had attended the family and received a very discouraging opinion as to the fitness of Mrs. Kelly to manage the child. Afterwards he modified or denied these statements. Much of the testimony was largely hearsay, and it appears that there was introduced testimony of some comment of not much importance concerning the correction of the child in church. There was later offered in evidence a partially completed medical report by the doctor relating to Mr. and Mrs. Kelly.
On one interview of the social worker with the Kelly family, at Mr. Kelly's solicitation, a general talk was had, especially about some superficial matters and some criticism received by the Kellys which Mrs. Kelly had resented. At such interview they had talked about whether the agency's position would be to remove Susan from the home; that she could not tell what would be the agency's position but that on her suggestion that maybe Susan would have to be removed Mrs. Kelly said: 'The quicker, the better; to make a clean break.'
Later, about December 1, Mary Richards informed the family that it would be the policy of the agency to remove Susan; that she had also mentioned to the family what Dr. Hommel had told her regarding Mrs. Kelly's instability. Much more was testified to as to the interviews, and there was testimony later as to the welfare worker from Elkader, a Mrs. Lillian Stromgren. As a result of the interviews and observations the welfare workers were agreed that the home was not a suitable place for the child and it should be removed to Hillcrest.
Dr. Emmons of Clinton testified in...
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