Holt, In Interest of
| Decision Date | 18 March 1981 |
| Docket Number | No. 13287,13287 |
| Citation | 102 Idaho 44,625 P.2d 398 |
| Parties | In the Interest of Angela Dee HOLT, A child under 18 years of age. STATE of Idaho, DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent, v. Victoria E. HOLT, Respondent-Appellant. |
| Court | Idaho Supreme Court |
Randy J. Stoker of Kvanvig, Stoker & Stanger, Twin Falls, for respondent-appellant.
David H. Leroy, Atty. Gen., James T. Baird, Deputy Atty. Gen., Twin Falls, for petitioner-respondent.
This is an appeal from an order of the district court affirming an order of the magistrate division of that court which terminated the parental rights of appellant to her minor child, Angela Dee Holt. The magistrate's order was appealed to the district court pursuant to I.C. § 16-2014 and I.R.C.P. 83. We affirm.
Counsel representing the appellant on this appeal did not represent her in the proceedings in the lower court. This opinion is being subdivided into related portions to make more understandable the issues being presented on this appeal.
The record of the hearing in the magistrate's court discloses the following: Victoria Holt is the natural mother of Angela Dee Holt, born April 5, 1976. Victoria is appealing a decision of the district court which upheld a magistrate court decision to terminate her parental rights under I.C. § 16-2001 et seq. 1
At the time of Angela's birth, Victoria was an unwed minor, living in a foster home, and on probation to the Department of Health and Welfare pursuant to the Youth Rehabilitation Act as a result of issuing an insufficient fund check in 1975. The probation and foster care continued during Victoria's minority until January 1977. During this time Health and Welfare set guidelines to assist Victoria in caring for her child.
In May 1976, Victoria was incarcerated as a result of a probation violation. This incarceration lasted approximately two weeks. Following the probation violation, the Department petitioned the magistrate division of the Fifth District Court under the Child Protective Act to take the child into protective custody and place her in foster care. An order of temporary shelter was issued. On July 27, Victoria agreed before the magistrate court to Health and Welfare custody of Angela. She was not represented by counsel at this time. On August 24, the court issued an order affirming the stipulation and creating Departmental custody of the child for an undetermined time not to exceed two years. The child was placed in a foster home. A second order reflecting the same disposition was entered on November 17.
In September, 1976, after Victoria had progressed through two group shelter homes following her release from incarceration, and after she signed a contract with Health and Welfare governing the conditions upon which Angela would be returned to her, planning for the child's return began. In the interim, Victoria visited the child at the Health and Welfare offices. Planning meetings were held during the early part of 1977, another contract governing restored custody was signed, and a projected date set for Angela's return to Victoria.
On May 19, 1977, Victoria was arrested for forgery and issuing insufficient funds checks. On June 1, 1977, Angela was returned to Victoria pursuant to the contract agreements and other prior efforts between the Department and Victoria. The Department retained custody under the previous order entered in the magistrate court subject to the provisions of the contract allowing the child to be with Victoria. Angela remained with her mother until October 26, 1977, at which time Victoria was sentenced on the forgery and check charges. A number of caseworker visits occurred in 1977 in the period between June 1, and October 26; events during this time form the primary basis for the Department instituting the termination proceeding. At the time of sentencing, Angela was again taken by the Department pursuant to the pending protective custody and was placed in foster care.
The procedures in the magistrates court.
On May 1, 1978, the Department petitioned the magistrate court for termination of Victoria's parental rights on the grounds of neglect, abandonment, inability to discharge parental duties because of mental illness, and on the basis that termination would be in the best interests of the child. At this time, Victoria was incarcerated under her previous sentence at the North Idaho Correctional Institute in Cottonwood. A public defender was appointed pursuant to I.C. § 16-2009 to represent Victoria in this proceeding.
On June 5, 1978, with Victoria and her counsel present, hearing was held before Magistrate Judge Smith. Following the conclusion of the first day of testimony, Judge Smith became ill. Upon the stipulation of the counsel for the respective parties that Judge Shaud would hear the remainder of the testimony and that a transcript thereof would then be submitted to Judge Smith for his determination of the entire matter, on June 7 the hearing continued before Magistrate Judge Shaud. The state's case in chief was presented entirely on the first day of trial before Magistrate Judge Smith and the appellant's case was presented on the second day of trial before Magistrate Judge Shaud.
On June 20, 1978, Judge Smith entered an order which set forth his findings of fact, and conclusions of law, and ordered termination of the parental rights of appellant in her child. The order also provided that legal custody of the child was to be vested in the director of the Department of Health and Welfare.
Proceedings in the District Court.
Appellant's appointed counsel filed notice of appeal to the district court requesting a trial de novo on the grounds that the hearing in the Magistrates Division was handled by different judges. See I.R.C.P. 83(b). In her notice of appeal she also states that she did not request a continuance because of the fact that she was serving a sentence for forgery and was to be returned to Cottonwood following the hearing. She also asserted that she was desirous of placing new testimony before the court which was not available in the magistrate proceeding.
New counsel for appellant appeared at the district court hearing on the appeal. Nothing appears in the record reflecting a ruling by the district court on the request for a trial de novo nor does the record contain anything reflecting what new testimony appellant wished to present to the court which was not available at the magistrate proceeding. All the record discloses is that at the time set for the hearing the district court announced that it would be heard on the record made in the magistrate court and that he had read the transcript and that the case was ready for argument. 2 This, of course, was an implicit denial of appellant's request for a trial de novo. After the argument the district court announced its ruling, stating that the decision of the magistrate court was affirmed on the appeal. Later a formal order of affirmance was entered and appeal was taken to this court.
Appeal to the Supreme Court.
Appellant's first claim of error is directed to the failure of the district court to grant a trial de novo on the appeal from the magistrate court. Appellant contends that this was an abuse of discretion.
Following the illness of Judge Smith, the proceedings continued the next day before Judge Shaud. The record discloses the following:
"THE COURT (Judge Shaud): This is the time set to continue with the matter entitled In the Interest of Angela Dee Holt, which is a petition for termination of parent-child relationship. I understand that this was started and heard in part before Judge Smith. That due to illness on his part and certain requirements that some of the witnesses be heard at this time or at least be present at this time, it is in the best interests of all perhaps if we continue with it. It is understood, I believe, and will counsel so stipulate that I, a Magistrate from the Fifth Judicial District may continue to hear the case at this time and rule on the evidence and then from the transcript made today together with the transcript of the first half of the proceedings, Judge Smith will then make a ruling. Will counsel so stipulate?
(Counsel for State): On behalf of the State of Idaho and the petitioner, I will so stipulate.
(Counsel for appellant): I'm actually the one that suggested that procedure so I would so stipulate also."
I.C. § 1-2213 provides:
" (Emphasis added.)
I.R.C.P. 83(b) provides in pertinent part:
Appellant asserts that due process of law requires that in the vast majority of cases the judge who hears the evidence must also enter the final decision of the court. Appellant points to the provisions of I.R.C.P. 63 3 in arguing this contention, but does recognize that that provision is not truly applicable to the case at hand. Here Judge Smith heard the testimony of the State's case in chief, and by stipulation of the parties Judge Shaud heard the appellant's case. This situation is no different from many cases where a trial court will hear a large part of the case by oral testimony and the balance of the testimony from depositions of the witnesses.
In our view the primary issue on this first assignment of error does not involve an issue of...
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