Welcher, In Interest of, No. 3--58892

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Heard by MOORE; REYNOLDSON
• Citation: 243 N.W.2d 841
• Decision Date: 30 June 1976
• Docket Number: No. 3--58892
• Parties: In the Interest of Derrick Dean WELCHER, a child. Appeal of LeAnn WELCHER.

Page 841

243 N.W.2d 841 In the Interest of Derrick Dean WELCHER, a child.
Appeal of LeAnn WELCHER. No. 3--58892. Supreme Court of Iowa. June 30, 1976.

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Gordon Liles, Hutcheson & Liles, Fort Madison, for appellant.

Michael M. Phelan, Johnson, Phelan & Tucker, Fort Madison, for appellee child.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Sp. Asst. Atty. Gen., and Stephen P. O'Meara, Asst. Atty. Gen., for appellee State of Iowa.

Heard by MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Derrick Welcher, born August 20, 1972 was adjudicated a neglected and dependent child by order entered February 18, 1975. See § 232.2(14)(b), (d), The Code, 1975, amended Acts 66 G.A., Ch. 142 § 2(13)(f), (h). He was removed from the custody of his 25-year-old mother, LeAnn, and placed in a foster home. Her appeal was dismissed as untimely filed. June 4, 1975 LeAnn filed a petition for review which eventually was heard October 17, 1975. The magistrate, functioning as juvenile court, refused to return Derrick to LeAnn's custody, continued the matter for an indefinite period not to exceed one year during which the child would continue to be in the custody of the county department of social welfare, imposed stringent conditions to be met by the mother, and provided for further investigations and examinations. We reverse and remand with directions.

This case first came to the attention of welfare authorities following two drug overdose suicide attempts by LeAnn coupled with a hearsay report of child abuse. A 'friend', Marilyn Ackerly, reported that on January 21, 1975 she saw LeAnn 'hit' Derrick repeatedly in the mouth until it bled. The same report alleged the mother had kicked the child in the face two days before. But Martha Hatfield, social worker, saw Derrick the next day, January 22, 1975, and saw no abrasions. No testimony indicating any physical abuse was offered at either hearing. The child was dirty and the record reflects that although his mother loved him, her emotional problems led her to neglect his physical needs.

By the time the first hearing date arrived LeAnn's counsel, the attorney appointed for Derrick, and the county attorney were agreed the case should be continued or dismissed. Trial court overruled these motions and objections, adjudicated Derrick's status as neglected and dependent, invoked the protective supervision of Lee County Department of Social Welfare, placed him in a foster home, and ordered LeAnn to undergo a complete psychiatric examination by Dr. Pineda of Burlington, Iowa. Robert Galloway, eighth judicial district probation officer, was directed to make a background investigation. Galloway's investigation revealed LeAnn had an unfortunate and sordid childhood, a prior conviction and incarceration for insufficient fund checks, and bore two illegitimate children (the first when she was 16) before Derrick's birth. In the two prior instances she consented to severances of the parent-child relationships. No criminal activity was noted after 1970. The report filed by Galloway also contained

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second and third-hand hearsay observations and notations from her social welfare records. These were the subject of objections at the October hearing.

Probation officer Galloway testified he could find no evidence LeAnn had abused Derrick but 'perhaps' she had physically and 'maybe' emotionally neglected him. He was in substantial agreement with Dr. Pineda that Derrick should be returned to LeAnn with strict supervision and a positive program for improvement of LeAnn's child care ability and job training skills.

From March to October LeAnn received psychiatric treatment from Dr. Pineda. He testified her mental health had improved and recommended Derrick be returned to his mother who should have supervision and continued psychiatric treatment. It was his opinion that although LeAnn was impulsive and at times exercised poor judgment, she would not neglect Derrick to the point of failing to provide his daily needs.

Ms. Hatfield was LeAnn's social worker. Her first report filed January 29, 1975 contained the statement 'I feel Miss Welcher loves her child, however she has been so burdened with her own problems, that she has been unable to meet his needs both physically and emotionally.' She recommended temporary custody be given to the department with the objective of working with LeAnn and eventually returning Derrick following LeAnn's psychiatric treatment.

At the October hearing Mr. Hatfield testified LeAnn's home prior to January 1975 was 'adequate; at times, it was cluttered or messy, but not, you know, * * * alarmingly so.' She had last been in the home in March when she took Derrick there for visitation. The home was then 'clean and fine; it was neat.' LeAnn cooked a good meal for Derrick.

The original juvenile court order permitted LeAnn visitation with her son in the foster home. Ms. Hatfield promptly intervened and the visitations were then conducted in the welfare offices which were unsuitable for that purpose. LeAnn resented this, quarreled with Ms. Hatfield and at one point threatened her. A second threat occurred when Mr. Hatfield accused LeAnn of 'screwing around.' Although the court concluded Ms. Hatfield was afraid of LeAnn and thus no subsequent investigation was made of LeAnn's living conditions, Ms. Hatfield testified she had no fear of LeAnn when she drove her to Burlington for appointments with Dr. Pineda.

At some period shortly...