C.L.T., Matter of

• Decision Date: 22 June 1979
• Docket Number: No. 3607,3607
• Citation: 597 P.2d 518
• Parties: In the Matter of C.L.T., a minor under the age of 18.
• Court: Alaska Supreme Court

Page 518

597 P.2d 518

In the Matter of C.L.T., a minor under the age of 18.

No. 3607.

Supreme Court of Alaska.

June 22, 1979.

Daniel N. Branch, Alaska Legal Services Corp., Bethel, John W. Coyne, Anchorage and Dennis J. Hopewell, Dillingham, for appellant.

Elizabeth Page Kennedy, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellees.

OPINION

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

BOOCHEVER, Justice.

This case arises out of a proceeding to terminate parental rights due to the alleged physical abuse of a minor child. The judgment entered by the superior court terminated the parental rights of Rita T. and Willie T. to the custody of their minor child, C.L.T., and adjudicated C.L.T. to be a neglected child. Rita T. appeals that judgment.

In October 1976, the state, through the Department of Health and Social Services (hereinafter the Department), filed a petition in superior court seeking temporary custody of C.L.T., an Alaska Native female child who was two years old at the time. The petition, based on AS 47.10.010, ¹ alleged that C.L.T. was in need of immediate medical attention because of physical abuse, and that the minor was neglected. The Department sought to remove C.L.T. from her surroundings for her safety. ² The superior court awarded temporary custody of C.L.T. to the Department for thirty days. The Department placed the child in the care of an uncle.

On November 10, 1976, Judge James Hanson, temporarily sitting in Bethel, continued temporary custody in the Department until a contested hearing could be held. Judge Hanson appointed Michael Bell as attorney for Rita T. The whereabouts of C.L.T.'s father, Willie T., were unknown, although the court attempted to give him notice of the proceedings. ³

On December 8, 1976, Judge William H. Sanders, temporarily sitting in Bethel, presided over the first part of the adjudication hearing. Judge Sanders heard two witnesses for the state: Dr. George Brenneman, M.D., and a friend who had been staying with Rita T. Dr. Brenneman, who examined C.L.T.'s bruises and burns when the Department sought medical care for her, testified about the nature, extent, and cause of her injuries. The friend, who was babysitting, testified that she had seen Rita T. and her boyfriend beat C.L.T. with a belt and a stick and burn her with a cigarette. The testimony of the two witnesses was tape-recorded. During these proceedings, Judge Sanders appointed J. Randall Luffberry as counsel and guardian ad litem for C.L.T. ⁴ Mr. Luffberry was not present during this hearing. Finally, Judge Sanders continued temporary custody of C.L.T. in the Department of Health and Social Services. Judge Sanders did not adjudicate C.L.T. dependent at this hearing.

On January 17, 1977, Judge Gerald J. Van Hoomissen, temporarily sitting in Bethel, presided over the continuation of this adjudication hearing. Judge Van Hoomissen heard testimony from one witness, Dorothy Riffe, a social worker with the Department who investigated the reports of C.L.T.'s abuse. Judge Van Hoomissen stated that he would review the tape of the proceedings before Judge Sanders and, based thereon, would enter an adjudication on the Department's petition. Luffberry, counsel and guardian ad litem for C.L.T., and the state agreed to such a procedure; Rita T.'s attorney did not object. On January 21, 1977, Judge Van Hoomissen issued a written order adjudicating C.L.T. to be a neglected child and terminating the parental rights of Rita T. A disposition hearing was scheduled.

The disposition hearing took place on May 12, 1977, before Judge Van Hoomissen. A final judgment was issued terminating Rita T.'s and Willie T.'s parental rights. C.L.T. was committed to the custody of the Commissioner of the Department of Health and Social Services, who was given authority to consent to the adoption of the child.

Alaska Legal Services Corporation was appointed Rita T.'s attorney for purposes of appeal. Rita T. raises six issues on appeal. She contends that the superior court violated her due process rights in three different respects. She also argues that the superior court committed reversible error when it conducted portions of the hearing in the absence of C.L.T.'s appointed counsel and guardian ad litem. She argues that the superior court's adjudication and disposition orders failed to comply with certain statutory provisions and the Children's Rules. Finally, Rita contends that she is entitled to a new hearing under recent amendments to AS 47.10, as those amendments were interpreted in In re J.M., 573 P.2d 1376 (Alaska 1978) (per curiam).

I. DUE PROCESS: THE RIGHT TO A FULL AND FAIR HEARING

In this proceeding to terminate parental rights, the judge sat as the trier of fact. Judge Sanders observed the testimony of two of the state's witnesses, Dr. Brenneman and the friend who was babysitting. Judge Sanders made no written findings of fact or conclusions of law with respect to this testimony, nor did he enter an adjudication order. Judge Van Hoomissen observed the testimony of one witness for the state, Dorothy Riffe. Judge Van Hoomissen listened to the tape recorded testimony given before Judge Sanders. On the basis of both the recorded and live testimony, Judge Van Hoomissen issued both the order adjudicating C.L.T. a neglected child and the order of disposition. ⁵

Appellant contends that the superior court violated her due process right ⁶ to a full and fair hearing when it, sitting as the finder of fact, terminated her parental rights based in part on direct observation of witnesses and in part on a tape recording of testimony previously given. ⁷ Appellant implicitly argues that the right to a full and fair hearing includes the right to have the trier of fact observe the oral testimony of all witnesses, especially the testimony given under cross-examination. ⁸

We decline to reach the merits of the due process argument advanced by Rita T. While some cases arguably may support the proposition that due process requires the fact finder to base its findings on testimony of witnesses personally observed, especially if such testimony is in conflict, ⁹ in this case, Rita T.'s trial attorney raised no objection when Judge Van Hoomissen expressed his intent to review and rely on the recording of proceedings before Judge Sanders. Failure to object to alleged error at the trial level may preclude raising the point on appeal. E. g., Chugach Electric Association v. Lewis, 453 P.2d 345, 349 (Alaska 1969). By consenting to certain procedures or by failing to object to others, a party may waive those rights which are arguably encompassed within due process guarantees. This was made explicit in People v. Sanders, 98 Cal.App.2d 703, 220 P.2d 761, 763 (1950), where the court held that the accused waived his right to have the trier of fact view all witnesses at trial when he consented to submission of the case against him on the transcript of testimony from the preliminary examination. ¹⁰ We agree with the state's contention that the failure of Rita T.'s counsel to object to Judge Van Hoomissen's use of the taped testimony waived any alleged defects in the procedure.

Appellant contends, however, that no objection was necessary because the trial court's action constituted plain error. In Alaska, the supreme court will consider plain error, even though not objected to below, if it is so substantial as to result in a miscarriage of justice. E. g., Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 90 (Alaska 1974).

If the superior court committed error, we do not believe it was so substantial as to result in injustice to Rita T. Because the testimony heard by Judge Sanders was not in conflict, the credibility of the witnesses was not the critical issue. Moreover, Judge Van Hoomissen did listen to the tape recordings of prior testimony. A tape recording conveys more information as to the credibility of witnesses than is conveyed by a sterile written transcript, for it allows the listener to hear the tone, inflection and hesitation, if any, of the speaker. Finally, Rita T. has made no claim on appeal that the witnesses testified untruthfully. Accordingly, we find that this case is not appropriate for invoking the plain error doctrine.

II. DUE PROCESS: APPELLANT'S INABILITY TO COMMUNICATE WITH COUNSEL

Appellant's second assignment of error on appeal again rests on the due process clause. Rita T. contends that she was unable to communicate effectively with her appointed counsel, and that such inability violated her due process rights.

Appellant assumes that the substantive content of the due process right to counsel is the same in both criminal proceedings and in proceedings brought to terminate parental rights. ¹¹ The degree of counsel-client communication required by due process may not be the same in criminal proceedings and termination proceedings. As we have noted previously:

Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding.

Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) (citation omitted). We need not reach the issue of whether due process means the same in criminal as well as termination proceedings, however, because we find a more fundamental flaw in the argument.

Neither the record in this case nor the briefs submitted by appellant's current attorney provide us with a convincing factual basis for concluding that Rita was unable to communicate effectively with her trial counsel. There is some evidence in the record that Bell had trouble communicating with Rita T. and felt he was not "getting through" to her. No continuance was requested, however, at the time that Bell indicated he was having difficulty. No witnesses were called to testify as to her behavior or mental condition. Counsel did not ask that a psychiatric evaluation of Rita T., made for purposes of a related criminal proceeding,...