*1 ORCUTT, Jane of Tamara Interest Juvenile. ORCUTT, Appellant, Floretta Appellee.
STATE
No. 53503.
Supreme Court Iowa.
Dec.
After Floretta’s arrest on the man- slaughter charge placed Tamara was 24, 1967, April Barbara’s home and Bar- granted temporary custody bara was on petition her and her adoption husband’s for Greenlief, Manson, appellant. A. Joe paternity. to establish At that time Turner, Atty. Gen., Lorna Richard C. Barbara was married to William Coffin. J. Gen., Williams, Atty. Sp. Asst. He proceedings instituted divorce about James Adel, Werden, County Atty., January 15, E. Van appellee. Barbara cared for Tamara until Jane 25, 1968, January placed when she was temporary home because of Bar- foster MASON, Justice. inability cope admitted bara’s with ju- appeal a decree in a is an from problem caring the child. Code, chapter proceeding venile February juvenile pro- the chief by chapter Acts as amended County pe- bation officer of Dallas filed a Assembly, termi- Sixty-second General court, sitting ju- tition in the district as relationship be- parent-child nating court, Orcutt, alleging venile Tamara Barbara tween Tamara Orcutt Jane Jane years age, depend- under 18 relationship between Coffin and Jean the neglected meaning ent and within the Orcutt, grand- her child and Floretta 232.2, 14c, 14a, Code section subsections mother, role her moth- assumed the Allen, 15c; Gary 15b and William appeals. Only grandmother er. J. Coffin, Floretta Barbara Coffin and Jean parents Through previous arrangement be- Tamara I. Orcutt are and/or daughter, guardian; parent-child and her then and that the tween Floretta Allen, lationship and her Gary gave Barbara between Tamara married to Jean Jane parents guardian name should be terminated. birth to Tamera under Floretta’s Lincoln, September 2, Nebraska. Notice was served on Floretta Orcutt original listed The child’s birth certificate setting February hearing 28 as the date Although mother. Floretta Orcutt as her petition. granted on the Continuance reflect- age certificate mother’s 1:55 commenced March later amend- age, ed it was Barbara Jean’s p.m. age ed to show Floretta’s mother. before the Sometime legal for Tamara appointed had days age Tamara was taken At three Perry another originally appointed had Floretta; they lived hospital from Orcutt, attorney represent but due Mrs. then until Floret- and child from as mother family ad- personal he to a his crisis 29, 1966, on a ta was arrested December Thursday Mon- before the the court vised consequence charge manslaughter as be unable to day hearing that he would Orcutt, Lynn Patricia of the death of represent He discussed Mrs. Orcutt. received illegitimate child Mrs. Orcutt briefly the court and advised matter adopt- later with the intention of Nebraska about call- from Mrs. Orcutt he had word ing. Fri- ing certain witnesses for the Sackett, also day appointed Mr. following plea the court March Perry, counsel for Orcutt. Floret- manslaughter crime of guilty to the in the her distant confinement Because of reforma- women’s ta was sentenced City on reformatory at Rockwell not ex- women’s City for a term tory at Rockwell did manslaughter charge Mr. Sackett eight years. ceed statutory to consult Flor- effective counsel Monday. court-appointed were denied because until 11:15a.m. coun- etta inadequate sel had in- time to hearing, the At commencement client, vestigate or confer with his (2) the court, desire call Orcutt’s aware of Mrs. rights of cross-examination of witnesses inquired present, certain witnesses and confrontation of adverse are *3 testimony expected to their her what she rights apply juvenile fundamental which to replied their be. Mrs. Orcutt custody and child and cases are unconstitu- type quality and of care concern the would tionally 232.31, Code, denied section (3) during provided Tamara home of she Jane was denied and she her to following birth. the child’s 27 months the process and the preponderance due of (4) applicable evidence under the rules civil to immediately moved for Mr. Sackett justify the cases did not termination of move “I would like to stating, continuance relationship. parent-child the be continued on this that notification that I did receive grounds 232.28, her first Code section basis of attorney until my appointment as her of provides: proposition, op- Friday did not have an morning and Orcutt, child, parents, speak guardian, or cus- with Mrs. portunity to Tamara, legal until about shall have the counsel. custody todian to desire of does minor, parents, I that basis the cus- morning, guardian, and on If 11:15 employ adequately todian desire are unable to not had an to appointed her such counsel shall be present evidence on prepare either by the any court.” examine or to cross behalf county attorney the be called distinction be- statute makes no was denied motion matter.” This in- delinquency one tween matter and upon testimo- change depending subject to dependent neglected and child. volving a ny introduced. recognizes represen- For both cases attorney duly tation one’s constituted the appeared Barbara Coffin Jean system of administra- fundamental ad- and hearing without March justice. of press she did not wish to the court vised paternity of petition her establishment response appellant’s first as to dismiss adoption, the court asked appellee’s her signment error contention she did wish stated action and statutory were not constitutional custody hearing seeking in the participate necessary party not a denied as she was Tamara Jane. proceedings parent- the the terminate relationship persuasive. is not Mr. all evidence At the conclusion the made at the renewed motion Sackett name listed as the Floretta Orcutt’s It was over- beginning of certificate; she birth mother Tamara’s on judg- court entered and March 6 the ruled of mother for had assumed role parent-child relation- terminating the ment life; and this child’s first 27 months of and Tamara ship Coffin between Barbara the women’s 4 she confined in March Orcutt between Floretta Jane reformatory. custody legal child, transferring her department so- County part: to the Dallas provides in 232.45 Code section authority place with full cial welfare time, notice of shall have “The court reputable agency child placing her with served purpose of place and adoption. express purpose for the child, petitioner, parents of the child, the person guardian Orcutt as seeking reversal II. child, custody having legal person (1) her contends standing parentis any considering individual loco the time allowed for confer- child, guardian litem preparation. ad ences and argues But she party. that because of the short notice to Mr. Sackett of his court in determin trial court was correct given adequate counsel he opportu- was not ing in here that Floretta the circumstances nity to consult with her or witnesses or entitled to notice of the hear Orcutt was acquaint himself with the necessarily ing. It would to follow seem facts or law the matter. hearing, that if she is is entitled to she represented by coun Appellant likewise to be strongly urges entitled this contention sel, representation; if desires such in relation she to State’s 74-page exhibit present typewritten the right report by that she also has evi probation the chief Otherwise, dence and adduce witnesses. officer of judicial the fifth *4 district right appearance to an before the court investigation which he summarizes his con- support gesture. cerning but a In County be futile records the Dallas de- Dept. partment welfare, Public see Arizona State of Welfare county social at- Barlow, 249, 298, 300, torney’s v. 80 296 P.2d Ariz. office and conversations with Bar- quoted this from Powell v. where the court bara Coffin and Floretta Orcutt. He de- Alabama, 55, 45, 53 scribed 287 U.S. S.Ct. the exhibit containing “practi- 64, 158, cally 77 L.Ed. 170: all of the records involved in the case”.
“ ‘What, then, ? does a include Historically practice, our own and It is clear that a defendant in a criminal least, always country has goes at it included case who trial to has been denied ef- right counsel when desired to the aid of fective assistance counsel if counsel is asserting the provided party given adequate opportunity prepare and to be, in heard would right. right to be for trial. cases, many if it did not of little avail Kendall, Iowa, 167 State v. N.W.2d by coun- heard comprehend right 909, 910, approved this we from Scalf v. * case, ¡† crimi- civil or sel. Bennett, 399, 393, Iowa 260
nal, a state court were arbitrari- or federal 860, 864: counsel, ly a em- party to hear refuse “ ** him, appearing it ployed by and reason- means consci- ‘Effective’ entious, ably may not be doubted that such a meaningful representation wherein refus- and, hearing, al would be a denial his and the accused is advised of in the n constitu- therefore, honest, given process due and counsel is learned able supplied.).” perform the task (Emphasis tional sense.’ reasonable assigned supplied). (Emphasis to him” to counsel carries with prepare the client’s de- McWilliams, 500, of counsel to 446 103 Ariz. State v. fense. 229, 230, quote contains this P.2d State, 120, 123, Stirling 297 P. 38 Ariz. v. proposi- contends under Mrs. Orcutt 871,872,applicable here: of effec- was denied the assistance she “ well-prepared tive and counsel. have and to right to have ‘His trial prepare his case his counsel Appellant’s counsel was unable original * * * right, substantial is a through 4 to attend the March time in deny his counsel sufficient design part of Orcutt. fault or case is also denial his and, circum- Sackett under such right; Mr. substantial She makes no contention repre- stances, anything appointed did other incompetent formality meaningless representation him would be conscientious sent than afford 70 many right.’ (Em- Of the granting considering ques barren cases
and the adequacy supplied.)” tion of phasis of belated only counsel we cite a few the later fed with a somewhat similar dealing eral cases: United ex States rel. Mathis v. Young, 196 State v. problem the dle, Cir., 748, 750-753, Run 3 394 F.2d 263, 256, 63, P.2d 410 said: Kan. therein; citations United States ex rel. Cir., Maroney, appoint coun- Chambers v. 3 F.2d duty the court to 408 statute, 1186, 1188-1192, therein; not dis- sel, imposed citations Rundle, Carey assignment counsel at United States ex by an rel. 3 charged v. Cir., 1210, 1213-1214; 409 F.2d under such circumstances such a time or Fields v. Peyton, Cir., 624, 628-629; giving of effective aid 4 preclude the 375 F.2d Texas, Cir., the case.” Brooks v. preparation State of 381 F.2d 619, 624-625; Powell, Calloway v. Alabama, su ago as Powell v. long As Cir., 886, 393 F.2d 65, 60, at 53 S.Ct. pra, 287 U.S. Other federal other cases those from 165, 172, ap cited with a case L.Ed. at jurisdictions dealing problem may Wainwright, 372 U.S. proval in Gideon Law, Digest, be found in West’s Criminal 799; 9 L.Ed.2d 83 S.Ct. key 641.13(3). 641.7(2) numbers Gault, S. Application of U.S. *5 527; 1448, 1428, v. Ct. 18 L.Ed.2d Scalf
Bennett,
399,
supra,
ment of counsel was based on circum- stances far different from those here and appellant’s fun No one controverts in French. damental assertion of insufficient time her counsel to trial. Nothing we here contrary hold record not indicate her does trial counsel principles Kendall, stated in Myers or ear- report furnished the identified 74-page lier cases referred to. exhibit 1 until was offered in evi history beginning For a in 1962 dence. This and other affirmative show Fourth Circuit moved the evolution towards ings in the record us convince Mrs. Orcutt new, aof more adopted liberal rule later meaningful was denied coun assistance of warning the Third Circuit practice that the question sel. The fact she does not Mr. late of counsel legal ability persuade Sackett’s does not us “inherently prejudicial” found to a defend- qualifications those can serve as the substi rights, strong ant’s unless affirmative adequate preparation tute for proof prejudice that resultant absent judgment which in could made not be State, be shown see United States provided such a time short as was here. *6 Rundle, ex supra, rel. Mathis v. 394 F.2d at 751-753. There the Third Circuit court The belated of counsel ren- said: and his ineffective this dered services re- reason the matter must be reversed and appoint “Should trial court fail to
manded. sufficiently counsel in trial advance of to reasonably defendant’s in a case arriving III. at conclusion we this manner, thorough and should defendant on in Ken- holding are aware of our State v. prima collateral attack facie establish dall, supra, at hasty appointment case that the legal of there, and our cases followed to earlier inherently preju- assistance have been he was effect that a defendant who claims to by precluding dicial his trial him from of in a denied effective assistance counsel adequately advantage prepared of criminal burden establish case has the to defense, logically then it follows that the and his ineffective he did not counsel was state should bear rebutting the brunt of However, fac- they are have a fair trial. presumption injury of inherent its tually distinguishable in that each defend- skimpy compliance amend- with the sixth contending attorney un- ant was his was ment command.” skilled, incompetent guilty neglect of or representing another in pronouncement one manner or support tends to are made here holding him. such contentions underlying No reasons not appellant her counsel did maintains placing burden on defendant under the prepare in adequate properly time to facts in and as au- Kendall the cases cited meaningful at thority order render assistance under cir- to there do exist hearing. cumstances here. upon bring preponderance is able to of evidence Whether rehearing The of the section identical is remainder is result on about different 232.31, supra, is with that fol- point that because section question. The not the lowing convincing evi- the words “clear and commencement which marked haste appel- dence” therein. following appointment sim- Mr. Sackett was lant’s second Since we are not concerned with the appellant’s ply position to evaluate quantum proof required in considering is- judgment case and make considered proposition, any assigned variance questions of law. sues of fact wording of the two sections in this spect portions is The now immaterial. ap- proposition IV. Under second these here are sections relevant identical. denied the pellant contends she was confrontation of of cross-examination and upon one section fact relies whose unsworn apparently which is intended to deal 1; physical im- in exhibit it was offered pro- neglect, dependency delinquency subpoena possibility them to ceedings section rather than on other hearing; and section 232.31 time apply apparently is intended to Application down in rules laid violates the relationship the parent-child termination of Gault, supra. unimportant. is provides: now 232.31 amended Section We it to the at- deem advisable call chapter legislature tention now parents, by child and etc. “Evidence provides quantum proof in cases one parents, guardian, his neglect, dependency delinquency heard, entitled custodian are proceedings. another in termination case, and present evidence material authority ex- By of one these statutes appearing question witnesses objec- appellant’s hibit 1 received over objected “that exhibit [State’s 1] ne- finding respect “The court’s hearsay, ir- ground on the that it contains delinquency shall be glect, dependency, and information, relevant, and immaterial convincing evidence upon clear based ade- has been that the information civ- the trial of applicable to the rules quately testified the witness.” cases, materi- relevant and provided il *7 ruling de- Orcutt contends including that any nature information of al right of prived her of the fundamental studies, examina- reports, or contained in witnesses and cross-examination of adverse upon to and relied admitted tions be thereby her trial. denied a fair probative When the its value. extent of study, report, or in a information contained 259, Yardley, Iowa In 260 re Interest evidence, the in examination is admitted 7, 1967, filed March study, or report, person a making such Iowa, 149 Harter Iowa v. State direct subject to both examination shall be year, April 4 filed of that N.W.2d reasonably when cross-examination touching the admissi- questions considered available.” bility 232.46 in under section of evidence Yardley proceedings. termination amended was not 232.46 which Section constitutionality neither section was of the Sixty-second General of the the Acts suggested. raised nor Assembly provides: Gault, supra, 387 Application In re required pi oof “Degree of 1451-1459, 18 L. at at U.S. S.Ct. May Ed.2d at decided respect finding with “The court’s 554— delinquency proceeding a determine based be grounds shall termination for the child’s cross-examine witnesses whose un- might result loss of those testimony comprised insti- sworn a state a of ex- liberty by being committed to hibit 1. considered denial of tution. The Court
rights and cross-examina- confrontation hearing and held juvenile tion in a Allen Treadway, child welfare sup- adequate to “absent confession worker, a valid Barbara Coffin and Robert Halde- port determination of man, officer, probation chief called as wit Juvenile Court, testimony and sworn confrontation by petitioner subject nesses were to cross- for cross-examina- witnesses available Appellant’s examination. assertion of er a ‘delin- finding tion essential were proposition ror considered does committing quency’ an order apply testimony. their “The main * * * institu- a state child] purpose and essential [the of confrontation is to opinion refers tion The opponent secure the opportunity to Courts, Family Standards for Evidence, Wigmore cross-examine.” 5 Juvenile of the published by the Children’s Bureau Ed., section com Third 1395. If otherwise Health, Edu- Department United petent, States probative material relevant its Welfare, pp. at cation which states value would be for fact. trier of testimony under oath 72-73 “that should be Harter supra, v. State of competent, rele- only material and and that Iowa at N.W.2d to civ- applicable under rules vant evidence contended the in a termination in evidence”. il be admitted cases should proceeding violated her and federal state “* * * no further Court stated hearsay when evidence a dif- suggested appears or reason is juvenile contained court folder was respect ferent rule sworn objection. admitted into evidence over juvenile than in adult tribunals.” courts objection in There we considered rela- weight given evidence District pointed As out Chambers v. admissibility its in view sec- rather than County, surpra, Dubuque the ef- Court of tion 232.46. specific lan- fect is limited its of Gault portion in Harter con- A folder might, juvenile in which a guage to cases deputy probation officer’s sisted Never- institution. be committed to state appel- day-to-day contacts record of principles theless, recognition of the court’s officer probation child. The lant and the trial, re- question of bearing on subject to cross-examina- was on stand “clearly proceeding, gardless type copies of The folder also contained tion. wary taking constitution- warns us to be psychologist and report from a school al which would result short cuts child. psychiatric given examination juve- substantially different treatment of Appellant exercise made no effort to would be accorded nile than that which making subpoena persons these right to the commission of charged adult ports either direct cross-examination Court of v. District crime”. Chambers *8 they were We ex- or unavailable. show County, supra, Dubuque pressed hesitancy giving probative in a termination This case was also 822. psychiatric psychological the value to chapter proceeding under examinations. in view foregoing in mind and With the was must be remanded child’s medical identified of the fact the case The record stated, ap- tes- hospital’s consider previously we medical librarian reasons the care, the denied records under pellant’s she was tified medical were contention duty right custody cross-examination and was and control fundamental We were correct. of adverse witnesses. make sure entries and confrontation identification was sufficient to her lack of held the This is directed Howev- probative requires value. whether the child’s best interest give records how er, history purported parent-child to recite termination of the relation- disregarded. ship. injuries occurred turn appellant’s contain- We chart of further psychiatric A contention report unconstitutionally examination and section 232.31 denied her psychological ing right worker was received of confrontation. hospital social aof effort made no Appellant evidence. Amendment 6 to the United States Con- report psychiatrist. His cross-examine provides part: stitution “In all criminal reports of given consideration. prosecutions enjoy the accused shall primarily on were based worker the social * * * right to be confronted with the parties or third from obtained information * * against witnesses him *.” witnesses conclusions of opinions were reports re- were other thereon as based Section 10 Article I of the Iowa Con- and welfare officer probation ceived provides part: stitution “In all criminal worker. * * * prosecutions the accused shall * * * right to be confronted Lewis, People quoting v. After * * him; against the witnesses 86 A.L.R. 183 N.E. N.Y. Hill, Cal.App. and In re Matter of that these 591, we determined 247 P. provisions These constitutional do gave value reports probative had no by way not exclude evidence admissible novo re- de consideration them no exceptions Hearsay to the rule or “intro in- said, felt the petitioner “If view. We principle duce new the law into person from such third received formation * * * procedure criminal secure person hearing, that to the was essential already those that existed as subjected produced should have been * * * law from future [common] trial court A cross-examination. to the change by elevating them into constitution- any weight give not and we will should al *. law. hearsay.” to such value; ports cross-examine or gossip, neighborhood cross-examination Summarized consider right provided having those bias, such evidence reliability prejudice, based on feeling, we subpoena held failure to exercise permitted “hearsay, opinion, section trends for its hopes for direct making of hostile and fears 232.46 to probative the court or human affairs future in consonance with the subject cy, isted, is but a sanction or recognized found “ [*] and those that public policy.” Wigmore exist, developed [*] under the common same through exceptions guaranty rule necessity, expedien- or created of confrontation legitimately progress law, then ex- on Evi- unreliable, no dence, had being of social workers” supra, section 1397. See also sec- tion 1364 for a his- probative of this author’s treatise value. tory Hearsay rule. 232.46, construing section State, only supra, except perhaps material In Harter recognized principle that prob- implication, we did not of witnesses reach sworn relevant presented such lem ex- when desires to available for cross-examination exceptions ercise the of cross-examination of admissible evidence as is *9 making report witness who was applicable to civil cas- reliable Hearsay rule rehearing shown be unavailable. If on determining es value probative have right of appellant desires to exercise the who is cross-examination such witness HANSELMAN, Earle Hefti, A. Edwin Carl
unavailable, not evi- give Hanselman, the court will Wolf, Loyd Larson, Harold M. George Story, Leroy Hanselman, W. Rich proba- originating from that dence witness May, Rockwood, Frank, ard Ap Ardis Ada report contains mate- tive value unless pellants, matter admissible under rial and relevant Hearsay rule. exception to COUNTY, Iowa, HUMBOLDT Lawrence J. Lerdal, County, Iowa, Auditor of Humboldt do Applied this limitation we Phyllis Christensen, Treasurer of Humboldt 232.31 232.46 believe either section Iowa, County, Phillips, Marie Assessor of to constitutional warning violates the as County, Humboldt and Kossuth Gault, su given Application shortcuts County, Iowa, Moore, Marc Auditor of Kos purpose pra, the main and essential since County, Iowa, Jorgenson, suth Donald J. her. secured of confrontation will County, Iowa, Larry Treasurer of Kossuth Hudson, County, Iowa, Assessor of Kossuth appellant’s complaint rehearing On Community District, LuVerne School Har subpoena imposfible ry Naffziger, President, and Rose Patter son, Secretary, Appellees. sworn constituted whose report lack of time will because of 53818. No. not arise. Supreme Court Iowa. said, we If follows what V. Dec. appellant did not have agree we proposition. asserted her third necessity a re- In view of VI. fourth do consider her we
proposition. a further consistent
For is opinion cause remanded.
Reversed SNELL, J., concur, except
All Justices REES, dissents, J., who takes
part.
SNELL, (dissenting). Justice respectfully dissent.
I per- not one of grandmother 232.28. in section listed
sons guardian. nor mother is neither the She had past, she custody had she While eight serving an custody while
lost cannot manslaughter, she
year sentence treated not be and should custodian
act as such.