Delaney, In re

• Decision Date: 09 April 1971
• Docket Number: No. 54227,54227
• Citation: 185 N.W.2d 726
• Parties: In re the Interest of Lily Bonita DELANEY, a child, Appellee. STATE of Iowa, Appellee, v. Florence GLASBY, mother, Appellant.
• Court: Iowa Supreme Court

Page 726

185 N.W.2d 726

In re the Interest of Lily Bonita DELANEY, a child, Appellee STATE of Iowa, Appellee, v. Florence GLASBY, mother, Appellant.

No. 54227.

Supreme Court of Iowa.

April 9, 1971.

David P. Miller, Davenport, for appellant.

Charles R. Fair, Davenport, for child, appellee.

Richard C. Turner, Atty. Gen., Lorna L. Williams, Special Asst. Atty. Gen., Des Moines, Thomas G. Schebler, Asst. County Atty., Davenport, for appellee, State of Iowa.

MASON, Justice.

This is an appeal by Florence Glasby, natural mother of Lily Bonita Delaney born November 14, 1956, from a decree in a juvenile proceeding under chapter 232, Iowa Code, 1966, as amended, finding the child dependent as defined in section 232.2(14) b in that she needed special care and treatment required by her physical or mental condition which the parents, guardian or other custodian is unable to provide and ordering she be released from placement at the Iowa Annie Wittenmyer Home, Davenport and committed to the state director for placement at the Iowa Juvenile Home, Toledo.

A petition had been filed by the deputy Scott county probation officer alleging child neglect and dependency under section 232.2(14) b and section 232.2(15) c and d. At the hearing the child and mother were represented by separate counsel. Code section 232.28.

A detailed narration of the facts leading to the filing of this petition would serve no useful purpose other than perhaps convince the reader the trial court was faced with a difficult problem.

In urging that the proceedings be dismissed and the child discharged, the mother contends she was denied opportunity to confront and cross-examine the psychologist whose report was received in evidence over her objection, the cumulative folder offered in evidence was hearsay and did not meet the requirement of section 232.31 and there was a lack of clear and convincing proof of dependency as required by this section.

This section as amended provides:

'Evidence by child and parents, etc. The child and his parents, guardian, or custodian are entitled to be heard, to present evidence material to the case, and to question witnesses appearing at the hearing.

'The court's finding with respect to neglect, dependency, and delinquency shall be based upon clear and convincing evidence under the rules applicable to the trial of civil cases, provided that relevant and material information of any nature including that contained in reports, studies, or examinations may be admitted and relied upon to the extent of its probative value. When information contained in a report, study, or examination is admitted in evidence, the person making such a report, study, or examination shall be subject to both direct and cross examination when reasonably available.'

A dependent or neglected child proceeding is neither criminal nor penal in character with its objective being the child's best interest and welfare. It is a special proceeding. In re Interest of Chambers, 261 Iowa 31, 34, 152 N.W.2d 818, 820 and Orcutt v. State, 173 N.W.2d 66, 70 (Iowa 1969).

Our review is de novo. Rule 334, Rules of Civil Procedure.

I. Appellant's contention her constitutional and statutory rights of cross-examination and confrontation of adverse witnesses were denied, stems from admission over her objection of the report of the psychologist who was not offered for cross-examination.

Amendment 6 to the United States Constitution provides in part: 'In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.'

Section 10 of Article I of the Iowa Constitution provides in part: 'In all criminal prosecutions * * * the accused shall have a right * * * to be confronted with the witnesses against him; * * *.'

The report was identified as part of the child's cumulative folder and part of the system's records. It was offered in connection with testimony of a visiting counselor of the Davenport public school system who testified he used the report in a conference with one of his superiors in making a decision that it was for the best interest of the school system that an extensive psychiatric evaluation should be conducted with Bonita before admittance to the public school system.

Appellant challenges admission of the exhibit on the ground that the 'witness is not qualified as an expert, no proper foundation and exhibit 'A' has not been shown as a regular part of the regular records of the school.'

The decision in Orcutt v. State, 173 N.W.2d 66 turned on appellant's contention her constitutional and statutory rights to effective counsel were denied because court-appointed counsel had inadequate time to prepare and investigate or confer with his client. However, in remanding the case for further hearing we considered appellant's contention she was denied the fundamental rights of cross-examination and confrontation of adverse witnesses. We employed this language in furnishing guidelines to the trial court at 72--73 of 173 N.W.2d:

'In re Application of Gault, * * * 387 U.S. 1, 42--57, 87 S.Ct. 1428, 1451--1459 18 L.Ed.2d 527, 554--563 was a proceeding to determine delinquency which might result in loss of the child's liberty by being committed to a state institution. The Court considered denial of the rights of confrontation and cross-examination in a juvenile court hearing and held 'absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of 'delinquency' and an order committing * * * (the child) to a state institution * * *'. The opinion refers to Standards for Juvenile and Family Courts, published by the Children's Bureau of the United States Department of Health, Education and Welfare, which states at pp. 72--73 'that testimony should be under oath and that only competent, material and relevant evidence under rules applicable to civil cases should be admitted in evidence'.

'The Court stated further '* * * no reason is suggested or appears for a different rule in respect of sworn testimony in juvenile courts than in adult tribunals.'

'As pointed out in * * * (In re Interest of Chambers, 261 Iowa at 36, 152 N.W.2d at 822) the effect of Gault is limited by its specific language to cases in which a juvenile might be committed to a state institution. Nevertheless, the court's recognition of principles bearing on the question of fair trial, regardless of the type of proceeding, 'clearly warns us to be wary of taking constitutional short cuts which would result in any substantially different treatment of a juvenile than that which would be accorded an adult charged with the commission of a crime'.'

'The main and essential purpose of confrontation is To secure for the opponent the opportunity for cross-examination.' (emphasis appears in the text) 5 Wigmore on Evidence, Third Ed., section 1395.

Later in the Orcutt opinion, 173 N.W.2d at 74, in commenting on the federal and state constitutional provisions bearing on confrontation set out, supra, we again quote from Wigmore, section 1397:

'These constitutional provisions do not exclude evidence admissible by way of exceptions to the Hearsay rule or 'introduce any new principle into the law of criminal procedure but * * * secure those that already existed as part of the (common) law * * * from future change by elevating them into constitutional law. * * *.

"* * *.

"The constitutional rule of confrontation is but a sanction or guaranty of the right recognized under the common law and is subject to the same exceptions as then existed, and those that may be legitimately found to exist, developed or created in the future in consonance with the progress of human affairs through necessity, expediency, or public policy."

After setting out limitations for the use of evidence originating from a witness who was unavailable for cross-examination we say 'applied with this limitation we do not believe either section 232.31 or 232.46 violates the warning as to constitutional shortcuts given in Application of Gault, supra, since the main and essential purpose of confrontation will be secured for her.'

Even though there is serious doubt as to the sufficiency of appellant's objection to alert the trial court to the contention she now makes that her constitutional and statutory rights were denied by receipt in evidence of the psychologist's report, our concern is whether the main and essential purpose of confrontation will be secured under rules applicable to civil cases.

The problem presented by this question is closely related to that raised by appellant's second proposition since the same attack is made in both. We therefore turn to the contention urged there.

II. Appellant insists her constitutional and statutory rights to cross-examination and confrontation of adverse witnesses were also denied by the receipt in evidence of Bonita's cumulative school folder. The folder was identified by the same counselor as a part of the regular records kept in the normal course of business of the Davenport school system. It consisted of reports of numerous persons not offered as witnesses at the hearing.

Appellant objected to the State's offer of the folder for the reason the foundation for admission was insufficient as there was no showing the identifying witness had the records involved under his control. She argues since the folder itself was being offered as evidence of the truth of the contents of reports contained in the folder without producing the persons from whom the evidence originated for cross-examination, the material was hearsay and was not shown to qualify as an exception to the hearsay rule. She pursues the same argument in challenging admissibility of the psychologist's report.

Of course, the statements of persons made at a time and place where they are not subjected to cross-examination when offered as an assertion...