S.W., In Interest of
| Decision Date | 01 April 1989 |
| Citation | 127 Idaho 513,903 P.2d 102 |
| Parties | In the Interest of S.W., d.o.b |
| Court | Idaho Court of Appeals |
Child & Fisher, Coeur d'Alene, for appellants. Jeffrey A. Child argued, Coeur d'Alene.
Alan G. Lance, Atty. Gen.; Edward C. Lockwood, Deputy Atty. Gen. (argued), Boise, for respondent.
In this case, we are asked to review the district court's order affirming the magistrate's decision to place three children in permanent foster care. Based upon our review, we affirm.
In the spring of 1990, following an adjudicatory hearing, the three children living with Doug Wood and Rosa Quaring, 1 S.T., D.Q. and S.W., were found to fall within the purview of the Idaho Child Protective Act, I.C. § 16-1601, and were placed in temporary foster care. One of the children, D.Q., is mentally retarded and requires specialized care and supervision. After the placement of the children in temporary foster care, the Department of Health and Welfare (the Department) formulated a case strategy that was designed to eventually reunite the family.
In August of 1991, on motion filed by the Department, a hearing was held and the magistrate ordered continuation of the temporary foster care for an additional year. The magistrate also instructed the Department to file a petition for termination of parental rights if substantial progress was not made toward reuniting the family during this additional year.
In July of 1992, the magistrate, finding good cause, appointed a volunteer from the Court Appointed Special Advocate (CASA) program to act as guardian ad litem for the children. In October of 1992, on the day scheduled for a renewal hearing to extend temporary foster care, all concerned parties In May of 1993, the Department filed a motion for modification, alleging substantial changes in the parent-child relationship and seeking permanent foster care placement. After granting a motion to postpone the hearing filed by Quaring, the hearing was set for June 29, 1993. On the date of the hearing, the CASA volunteer filed a petition requesting termination of parental rights. The magistrate deemed this petition to be untimely and refused to consider it.
[127 Idaho 516] stipulated to an extension of temporary foster care for an additional year. The parties also agreed that the case plan developed for the family, which anticipated eventual reunification, was in the best interests of the children. The magistrate adopted this stipulation in November of 1992 and required that a hearing be set within six months to determine whether the best interests of the children were still being met.
The hearing on the modification took place over four days. At one point in the hearing, the magistrate noted that "the Rules of Evidence don't exist in these proceedings." Eventually, the magistrate granted the Department's motion, finding that the children's "special needs" required permanent foster care until the children reached age eighteen. Quaring initially appealed the order to the district court which affirmed the magistrate.
Quaring now appeals to this Court, alleging that the magistrate erred by failing to limit the participation of the CASA guardian ad litem, failing to apply the Idaho Rules of Evidence at the hearing, improperly admitting evidence, and finding that the special needs of the children warranted permanent foster care. It is further alleged that Quaring was denied due process of law at the hearing for modification held before the magistrate.
We first note that upon review of a decision of the district court rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. Hentges v. Hentges, 115 Idaho 192, 194, 765 P.2d 1094, 1096 (Ct.App.1988).
The first issue raised on appeal by Quaring concerns the participation of the guardian ad litem during the hearing held on June 29, 1993. Throughout the proceedings, the children had been represented by appointed counsel from the Kootenai County Public Defender's office. During the hearing on June 29, 1993, the guardian ad litem was also represented by counsel. Quaring claims that the magistrate erred by allowing the guardian ad litem to participate extensively in the proceedings, when the children were already adequately represented. Quaring alleges this excessive representation of the interests of the children caused a "double bite." Quaring also claims that the magistrate erred by failing to make a threshold determination "of the degree of participation necessary by the guardian ad litem in order to assure adequate representation of the children."
The guardian ad litem statutes, I.C. §§ 16-1630 through 16-1637, which were added to the code in 1989, establish the nature and obligations of a guardian ad litem. Idaho Code § 16-1631 provides that a guardian ad litem's duties are:
(a) To conduct an independent factual investigation of the circumstances of the child including, without limitation, the circumstances described in the petition.
(b) To file with the court a written report stating the results of the investigation, the guardian ad litem's recommendations and such other information as the court may require. The guardian ad litem's written report shall be delivered to the court, with copies to all parties to the case at least five (5) days before the date set for the adjudicatory hearing. The report shall not be admitted into evidence at the adjudicatory hearing, and shall be used by the court only for disposition if the child is found to be within the purview of the act.
(c) To act as an advocate for the child for whom appointed at each stage of proceedings under this chapter and is charged Similarly, I.C. § 16-1632 sets forth the rights and powers of the guardian ad litem:
[127 Idaho 517] with the general representation of the child. To that end, the guardian ad litem shall participate fully in the proceedings and to the degree necessary to adequately represent the child, and shall be entitled to confer with the child.
(a) The guardian ad litem, if represented by counsel, may file pleadings, motions, memoranda and briefs on behalf of the child, and shall have all of the rights of a party whether conferred by statute, rule of court or otherwise.
Nowhere in the statutes is there a requirement that the magistrate make a threshold determination as to the level of participation necessary for a guardian ad litem to adequately represent the child or children. Nor have we found any case law that so indicates. Such a determination, with its potential for limitation, would be contrary to I.C. § 16-1632(a), which vests the guardian ad litem with all the rights of a party to a lawsuit. The language of I.C. § 16-1631(c), concerning participation "to the degree necessary to adequately represent the child," is intended to provide direction for the guardian ad litem, not to authorize limitation by the court hearing the matter. Therefore, we conclude that no error was committed by the magistrate in either refusing to limit the participation of the guardian ad litem or in failing to make a threshold determination as to what level of participation was necessary to represent the children.
Quaring next asserts that the magistrate erred by concluding that the Rules of Evidence did not apply. Quaring claims that this conclusion resulted in the improper admission of certain evidence.
On the third day of the hearing, the magistrate addressed the following remark to counsel for Quaring:
I'm going to make a point here, too, is that throughout these proceedings I've been kind of semi conducting this in a formal/informal type manner, which is contemplated by the statutes. Technically the Rules of Evidence don't exist in these proceedings, anyhow. And, so, if there may have been some admissions of evidence that normally would not, but that's contemplated. These are an informal proceeding contemplated by the statute.
And, so, your basis, your testimony--or, your statement about the witnesses giving opinions, your--I would certainly allow you to have the same opportunity. Just want to make that clear, even though, technically maybe they wouldn't be allowed under the Rules of Evidence.
Quaring claims this statement shows that the magistrate did not apply the Rules of Evidence. Idaho Rule of Evidence 101 states that the Rules of Evidence apply in all cases except for a limited number of enumerated situations. These exceptions include temporary shelter care hearings held under Idaho Code § 16-1614. In remanding a case under the Child Protective Act, the Idaho Supreme Court stated:
If further evidence is to be taken before the magistrate this would call attention to the fact that the Idaho Rules of Evidence will apply and that I.R.E. 101 modifies I.J.R. 10 by making the rules of evidence applicable in all Child Protective Act proceedings except temporary shelter care hearings. Hence, I.C. § 16-1608(b), "[t]he hearing shall be conducted in an informal manner," is no longer governing in these matters.
Department of Health & Welfare v. Syme, 110 Idaho 44, 47-48, 714 P.2d 13, 16-17 (1986). The Department concedes that the Rules of Evidence apply but argues that the magistrate did, in fact, properly apply them to the various rulings in question.
The incorrect statement by the magistrate, in and of itself, is not grounds for a reversal provided that the Rules of Evidence were in fact...
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