Yardley, In Interest of

• Decision Date: 07 March 1967
• Docket Number: No. 52350,52350
• Citation: 149 N.W.2d 162,260 Iowa 259
• Parties: In the Interest of Donald YARDLEY, Jr., et al., Minors. Celestine T. CROSS, Petitioner-Appellee, v. Wanda YARDLEY, Appellant, Donald Yardley, Sr., Appellee.
• Court: Iowa Supreme Court

Page 162

149 N.W.2d 162

260 Iowa 259

In the Interest of Donald YARDLEY, Jr., et al., Minors.

Celestine T. CROSS, Petitioner-Appellee, v. Wanda YARDLEY, Appellant, Donald Yardley, Sr., Appellee.

No. 52350.

Supreme Court of Iowa.

March 7, 1967.

Gene W. Glenn, Ottumwa, for appellant.

Samuel O. Erhardt, Ottumwa, for petitioner-appellee.

Herbert F. Box, Ottumwa, for appellee.

GARFIELD, Chief Justice.

This is a juvenile proceeding under chapter 232, Code, 1966 (chapter 215 Laws 61st G.A.1965), asking that six children of Wanda Yardley be declared 'neglected', within the meaning of Code section 232.2 subd. 15 (section 3 of the Act) and the parent-child relationship between the children and their parents terminated. Following a hearing the relief was granted as to all the children except the youngest and their mother, age 34, has appealed.

In view of the brevity of the printed record the shorthand reporter's transcript of the hearing consisting of 179 pages has been certified to us and carefully considered. (See rule 341 Rules of Civil Procedure.)

The action was instituted by filing a petition on January 4, 1966 by a child welfare worker for the Wapello County Department of Social Welfare in Ottumwa. Counsel for the mother appeared in resistance to the petition. Counsel for the father of the five oldest children, Wanda's divorced husband, also appeared and took part in the hearing (on January 31 and February 4) but consented that the relief sought be granted.

Wanda obtained the divorce from Donald Yardley, Sr., September 10, 1963 because he was living with another woman, his present wife. Wanda was granted custody of Donald, Jr., born June 21, 1951, Pamela, born May 31, 1954 and Sandra, born July 26, 1961. Donald, Sr., was awarded custody of Theresa, born January 6, 1956 and Joseph, born January 30, 1959. Wanda's youngest was not born until June 20, 1965.

Wanda never married again. Father of her youngest is a man from Milwaukee whom she met in a tavern in Ottumwa and knew only three weeks. He has furnished no support for the child and apparently does not know it exists. The home in which Wanda and four of her children lived is owned by her father who has a separate room of his own there.

Theresa and Joseph were unhappy at their father's, returned to their mother's in September, 1964 and lived there much of the subsequent time. Donald, Sr., and his present wife have a young child of their own and his wife has three older children who live with them. Donald drives a moving van and is gone from home most of the time. Wanda's principal income consists of payments from Aid to Dependent Children (A.D.C.).

The case was referred to the child welfare branch of the Department of Social Welfare in April, 1964 following complaints the children were being neglected. Petitioner told Wanda it was claimed she was leaving the children alone while she went to taverns and that she was having a man in her home. This Wanda denied. The house was found to be cluttered and untidy, the kitchen had unwashed dishes piled up, beds were unmade and without sheets or proper bedding. In 18 to 25 visits to the home by the time of the hearing petitioner found it in much the same condition as at first. Other social welfare workers confirmed this.

In March, 1965 petitioner received a complaint that Wanda had thrown a shoe at the child Theresa and ruptured a blood vessel in her eye. Wanda admitted this but insisted she intended no injury. In April (1965) Wanda was found to be 7 1/2 months pregnant with the child born out of wedlock. She insisted on keeping the child who was born in Ottumwa, rather than consent to its adoption.

When about to be confined in childbirth Wanda obtained a 17-year-old girl, Helen Guard, to come to the home and care for the children. Helen had dropped out of school when halfway through the tenth grade. She stayed in the home about a month, cared for the children, prepared their meals and kept house. Helen became 18 on October 25 and Wanda's father consented that she come there then to make her home. She was still having there at the time of the hearing. Some of Wanda's troubles stem from Helen's presence in the home.

Helen admitted as a witness a divorced man named Buck stayed with her in the back bedroom all of about three or four nights. The children who usually slept in that bed were required to give it up on these occasions. Wanda was at home and, according to Helen, did not object to such conduct. Another man who was 'stewed up' came to see Helen and spent the night in the home although she said they were not 'together' on this occasion. There is evidence Helen also entertained him in the bedroom at least once. Both men were friends of Wanda with whom she frequently danced at taverns or so-called clubs.

Wanda testified she did not approve Helen's entertaining men in the home or consent to it and did not know Buck spent the night there until she got up the next day. We infer from her testimony that her claimed lack of prior knowledge of his presence there is mainly based on the fact she did not see him and Helen together on the bed. Wanda also testified the man who was 'stewed up' should have been ordered out of the house.

Helen testified she was not pregnant 'for sure' but had not had a medical checkup.

Wanda's need of a baby-sitter was largely due to her frequenting taverns and clubs where liquor was sold and dancing permitted. She usually went to a tavern Friday or Saturday nights and sometimes one other evening during the week. She would leave home at 8:30 or 9:00 and return between 11:30 and one. Donald, Jr., testified his mother was usually in by one or 1:30. Her father would take her to a tavern or club many evenings and she would return home with someone she saw there or in a taxi. Wanda testified she formerly went to taverns more frequently and stayed later--until 2 a.m. When she bought her own drinks they were usually pop but if someone bought hard liquor for her she would drink it.

About every other Monday evening Wanda 'baby-sat' with six children while their mother went bowling. Sometimes Wanda stayed all night with this friend. On the Friday and Saturday nights following birth of her baby on Sunday Wanda went to a tavern and stayed, according to her, until 12 and one. There is evidence she was away from home all of Friday night. It was shown without objection that Helen Guard told the paternal grandparents of the five children on Saturday afternoon she was worried about Wanda--she was just off somewhere drinking.

Donald, Jr., 14 at trial time, smoked cigarettes regularly but testified he was trying to stop; his mother bought cigarettes for him and the man Wanda said should have been ordered out of the home gave Donald cigarettes once. Donald was in the seventh grade in school at the time of the hearing. He and two of the other children were in 'special education' part of the time. The last of June, 1965 Wanda told a social worker Donald had been a great deal of trouble lately and, so far as she was concerned, he could stay with his father.

Wanda's father provided little, if any, guidance for the children. He approved her frequenting taverns if she enjoyed it and someone stayed with the children. He did not know Wanda was pregnant with the last baby until six weeks before birth.

There is a good deal of evidence the children had enough food to eat, adequate clothes to wear and were kept fairly clean. What the children lacked was proper parental direction, moral guidance and good example. There was evidently a complete lack of religious training either in or out of the home.

Petitioner testified the local welfare office received constant complaints concerning the home and Wanda was highly emotional and immature. The office asked permanent removal of the children from the home and termination of parental rights.

There is other evidence of course but enough has been summarized to indicate what the record contains.

The trial court found the children were 'neglected' within the meaning of chapter 215, section 3, subd. 15 Laws, Sixty-first General Assembly (section 232.2, subd. 15, Code, 1966), in that the father had abandoned the two children placed in his custody, all the children were 'without proper parental care because of the faults or habits of (their) parents * * * or other custodian' and were 'living under conditions injurious to (their) mental * * * health or welfare.'

When the petition was filed on January 4, 1966, the court found it appeared the welfare of the children required their temporary custody be immediately assumed by the juvenile court and ordered them delivered to the county board of social welfare pending further order (see chapter 215 section 8, Code, 1966, section 232.7). The record indicates this was done.

In the final decree, dated April 20, 1966, the order for temporary custody was terminated as to the baby (then ten months old) and he was ordered returned to Wanda subject to strict supervision by the county department of social welfare. The cause was continued as to the baby to be reviewed in one year. As to the other five children the parent-child relationship was terminated and their custody transferred to the county social welfare department. (See chapter 215, section 34, subd. 3, par. b, Code section 232.33, subd. 3, par. b.)

I. As counsel for petitioner-appellee and for appellant (Wanda) concede, our review is de novo. Chapter 215, section 59, Code section 232.58; In re Morrison, 259 Iowa ---, 144 N.W.2d 97, 100 and citations.

Especially when considering the credibility of witnesses we give weight to the fact findings of the trial court but are not bound by them (rule 344(f), par. 7, Rules of Civil Procedure). In re Morrison and State ex rel. Wiley v. Richards, 253 Iowa 679, 113 N.W.2d 285, elaborate upon this proposition. It would seem peculiarly applicable in a matter of this kind.

'* * * the rule is well established in custody matters...