Thursday, September 07, 2006

Fresh Law

The Iowa Court of Appeals has new opinions posted.

Some of the more interesting cases:

IN THE INTEREST OF J.E involves a reversal of a termination order. The facts are roughly as follows:

In July of 2004, Jerimiah went to a neighbor and said his brother had left and he did not know how to contact his mother. The neighbor called the authorities. When they arrived, they found that the home had no electricity, and several other neighbors confirmed that Jerimiah spent long periods of time at their homes, was always hungry, and frequently there was no one at his home. Jerimiah also had a laceration on his neck, which he told an examining physician had happened when he ran into a rope he strung up. Jerimiah also had an old injury which he said was a dog bite, but the examining physician found it to be more consistent with a human bite. While the officer and social worker were there Robyn returned home. She reported she was absent from the home because she worked and had to do community service hours. Robyn agreed to allow the authorities to place Jeremiah outside the home pending DHS involvement, and supplied samples of her hair and urine for purposes of testing. A urine test was positive for opiates and she said a friend had given her a pain pill after she suffered a fall. Her hair tested negative for all substances. Subsequent tests showed her urine positive for codeine and morphine. Jerimiah was subsequently found to be a child in need of assistance under Iowa Code section 232.2(6)(c)(2) (2003), which states:
6. "Child in need of assistance" means an unmarried child:
. . .
c. Who has suffered or is imminently likely to suffer harmful effects as a result of either of the following:
. . .
(2) The failure of the child's parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child.

Services were started pursuant to the CHiNA, but Robyn did not attend all scheduled sessions. Reports indicated unhappiness with Robyn and Jerimiah's visits because she allowed him to play video games and did not interact with him. After an unsupervised visit in May 2005, Robyn returned Jerimiah early, leaving him in the care of a teenage foster child who also lived in the home. Jerimiah later told Robyn he had been sexually abused by this child, and was moved to a different foster home. In August 2005, while Jerimiah was with her, Robyn was arrested for shoplifting and taken to the police station. Jerimiah told a social worker that it was okay for his mother to steal food. Robyn's visits were again supervised.

In October 2005, the State filed a petition seeking termination of Robyn's parental rights to Jerimiah. The juvenile court terminated Robyn's parental rights pursuant to section 232.116(1)(f) (2005).3 The court noted:
Robyn has participated in services, and visits with Jerimiah; however, her in-home provider testified that Robyn has not been consistent with services, has a history of being unprepared for parent skill sessions, and does not have a strong bond with the child.

The court concluded Jerimiah needed permanency, and it was in his best interests to terminate Robyn's parental rights.

The majority of the appellate court disagreed. The Court found that while Robyn had deficiencies as a parent, these deficiencies were primarily due to the problems she faced in living at the poverty level and trying to provide care while simultaneously working and performing community service:
Robyn has deficiencies as a parent. She also lives at or below the poverty line. The family has insufficient money for food and basic services. She has
attempted to work at a minimum wage job and apparently has to perform community service which takes her away from her family. . . .

Clearly Jerimiah deserves more careful care when she is away from the home. Yet we recognize her problem in affording child care when her sole employment is a minimum wage job, and in addition she has been ordered to do community service hours which take her away from her children. We find it hard to believe that Jerimiah's interests are better served in removing him from his three older brothers, who have a substantial bond with him, and he with them. . . .

Robyn has participated in services. She has missed some sessions but has difficulty with transportation. Ideally she would have engaged in more intellectually stimulating exercises with Jerimiah during visits than allowing him to play video games for which she is being chided. The State's entry through child in need of assistance programs is not to create the perfect parent but to assure adequate care for its children. Jerimiah was found to be a child in need of assistance because he did not have reasonable supervision, yet no efforts were expended to that deficiency.

If reasonable efforts were made to provide Robyn child care for Jerimiah while she works, modifying her community service requirement to allow her to provide service that would not take her away from her children, giving her budgeting help, assistance in finding adequate housing and legal assistance to help her resolve her delinquent bills, there is little evidence Jerimiah would not be safe in her care if she had assistance with child care at times she was required to be absent from the home. We therefore question whether the State has proved the grounds for termination by clear and convincing evidence.

The Court also noted a problem inherent in the general push for permanency in the "best interest" context:
We are not willing to find that Jerimiah's best interests will be served by termination. Despite the State's argument that termination is necessary so he can get on with his life, he will get on with his life in whatever situation he finds himself.

Justice Miller dissented, pointing out that Jerimiah is a special needs child, mildly mentally retarded and suffers from attention deficit/hyperactivity disorder (AD/HD) as well as physical problems, including heart arrhythmia for which he takes medication, and is on a low-sugar, no-caffeine diet. With Robyn's several psychiatric problems, she continued her pattern of providing inadequate supervision of Jerimiah despite receiving services:
The paramount consideration in a termination of parental rights proceeding is the best interests of the child. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). In seeking out those best interests, we look to the child's long-range, as well as immediate, interests. Id. Robyn has not provided for Jerimiah's best interests in the past. She has left him unsupervised, in a home without electricity and with very little food. Despite receiving extensive and lengthy services, Robyn subsequently provided Jerimiah with a very poor role model by shoplifting in front of him, which led Jerimiah to form the conclusion that stealing was "okay." Robyn has also demonstrated that she is unable to provide the stability that Jerimiah needs. I would conclude, as the juvenile court did, that termination of Robyn's parental rights is in Jerimiah's best interests. . . .

While Robyn did have unsupervised overnight visitation with Jerimiah, visitation became supervised again after she shoplifted while she had Jerimiah with her, and he saw her being arrested and taken to jail. Robyn subsequently again became inconsistent in her participation in services. I would conclude Robyn had adequate time to comply with services, and it would not be in Jerimiah's best interests to give her additional time for reunification.


SCHMIDT V. MUELLER involves an oral promise to pay for the remodeling of a church, and whether that promise is binding upon the estate after death.
The facts:
Reinhard Schmidt was a member of Bethany United Church of Christ, and throughout his lifetime he made many gifts to the church. In 2003, Schmidt told the pastor, Wayne Gardner, he wanted to fund remodeling of the parsonage, the church basement, and the cemetery. No specific amount of money was mentioned. Schmidt made a new will in August 2003, but he did not include a bequest to the church. The will included bequests to thirty-four relatives, including nieces, nephews, great-nieces, and great-nephews.

Schmidt informed his great-nephew, Loren Milligan, and great-niece, Barbara Carroll, of his intent to pay for the church projects. Milligan and Carroll assisted Schmidt with his finances. Milligan obtained cost estimates, and told Schmidt the combined projects would cost between $115,000 and $150,000. Milligan testified Schmidt had no reservations as to these figures. Milligan headed the church committees overseeing the remodeling. Prior to SchmidtÂ’s death, and in reliance on his agreement to finance the project, work was begun on one bathroom in the parsonage, and flooring was taken up in the church basement. Landscaping the cemetery had also been commenced. . . .

Schmidt died on September 7, 2003.

Milligan was named as the executor in the will. He chose to honor SchmidtÂ’s verbal pledge to the church, and he used $135,410 of estate funds for the remodeling projects. A final report was filed in district court on March 11, 2005. A beneficiary under the will, Ilse Mueller, filed objections to the report.

The issue became whether or not the oral promise to the church to pay for the remodeling was binding on the estate absent some sort of consideration or detrimental reliance. The Court first noted that charitable subscriptions are considered under contract principles, so they must involve an offer and an acceptance of that offer - a mere statement of an intent is insufficient. Both an offer and an acceptance were clearly manifest here. However, under Iowa law generally neither consideration (the thing you normally get in exchange for agreeing to do or not to do something) or any sort of detrimental reliance is necessary in the case of charitable subscriptions. As a matter of public policy, that's because they "often serve the public interest by making possible projects which otherwise could never come about.” But as a practical matter, its inherent in the nature of 'charity.' If a church or other organization had to either give you something in exchange for your donation, it would hardly be efficient. And if they had to show they acted to their detriment in relying on a donation, then basically all donations would be revocable until and unless the money was actually expended by the charity, making promises to donate nearly impossible to enforce. But here the charitable donation didn't take the normal form of signing some sort of pledge, it was oral. And Mueller felt that should make it entail either consideration or detrimental action in order to be enforceable.

The Court disagreed, concluding oral subscriptions are enforceable in the same manner as written subscriptions. (Side note: even if they were not, I believe that it would still be arguable that the church did act to its detriment in reliance on the promise, in that it tore up the building to start remodeling.) The Court also found that the sums involved were within the expectations of the deceased, and therefore the estate should be held liable to the church to fulfill the intended donation.

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