Harter v. State

• Decision Date: 04 April 1967
• Docket Number: No. 52256,52256
• Citation: 260 Iowa 605,149 N.W.2d 827
• Parties: The State of Iowa, ex rel. Carl B. Parks, Chief Probation Officer. Joann Ford HARTER, Appellant. v. STATE of Iowa, Appellee. In the Interest of Tammy Lynn FORD, Minor.
• Court: Iowa Supreme Court

Page 827

149 N.W.2d 827

260 Iowa 605

The State of Iowa, ex rel. Carl B. Parks, Chief Probation Officer Joann Ford HARTER, Appellant. v. STATE of Iowa, Appellee In the Interest of Tammy Lynn FORD, Minor.

No. 52256.

Supreme Court of Iowa.

April 4, 1967.

Jesse, LeTourneau & Johnston, Des Moines, for appellant.

Ray A. Fenton, Polk County Atty., and Michael E. Hansen, Asst. County Atty., for appellee.

STUART, Justice.

The Polk County juvenile authorities instituted these proceedings under Chapter 232, Code of Iowa as amended by the Sixty-first General Assembly seeking to sever and terminate the parent-child relationship between Joann Ford Harter and Tammy Lynn Ford, her daughter. The juvenile court found Mrs. Harter was unfit to retain the custody of her child because of her low mentality, mistreatment of the child and her immoral conduct. The parent-child relationship was severed and the child's custody was retained by the court for the purpose of placing her in a foster home or approving a permanent adoption. The mother claims there is not sufficient competent evidence to support the trial court's findings.

I. She claims the evidence in the record consists of hearsay, secondary hearsay, exhibits without proper authentication, opinions of unqualified witnesses and secondary evidence. This claim must be examined according to the burden of proof and rules of evidence applicable to this type of hearing. Section 232.46, Code of Iowa 1966 provides: 'The court's finding with respect to grounds for termination shall be based upon a preponderance of 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.'

Therefore, evidence, which under the ordinary rules of evidence applicable to a civil trial would be excluded as hearsay, lacking a proper foundation, improper opinion evidence, or not the best evidence, is admissible in such proceedings and the nature of the evidence is to be considered as it affects its probative value rather than its admissibility. In re Yardley, et al., Iowa 149 N.W.2d 162, filed March 7, 1967.

Our review is de novo. In re Morrison, 258 Iowa ---, 144 N.W.2d 97, 100; In re Yardley, et al., supra. We will review all the evidence giving it the probative force it naturally possesses and giving weight to the fact findings of the trial court, especially when considering the credibility of witnesses. In re Morrison, supra; In re Yardley, supra.

We do not consider this approach to be much of a departure from a regular equity case in which evidence is admitted subject to objection and the courts are to sift out the admissible evidence. Here appellant's objections will be considered in relation to the weight to be given the evidence rather than its admissibility.

II. The juvenile court folders for Tammy Lynn Ford and her mother, Joann Brisbois Ford Harter were admitted into evidence over the hearsay objection. They had been identified by Pauline Ramsey, deputy probation officer, as official case history records. She testified she made the entries appearing in these exhibits. Appellee stated both in its brief and oral argument that copies of these exhibits were made available to counsel for the mother two months prior to the hearing. This was not denied.

For the most part the exhibits are notations by the probation officer recording her day to day contacts with this mother and child over a period of years. They are of particular value in tracing the sociological history of the parties which is an important factor to be considered in cases of this kind, for a determination in custody matters 'is necessarily based on what is likely to occur in the future because of present conditions and because of what has occurred in the past'. In re Morrison, supra. Such entries have much probative force as Mrs. Ramsey was on the stand subject to cross-examination and appellant did not take issue with her when she testified in her own behalf.

Other entries recorded reports received by the probation officer or the welfare worker from third parties as to appellant's treatment of the child or her own conduct which, if true, would be damaging to appellant. This type of hearsay is unreliable. 'Hearsay, opinion, gossip, bias, prejudice, trends of hostile neighborhood feeling, the hopes and fears of social workers, are all sources of error and have no more place in Children's Courts than in any other court. (citations)' People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 355, 86 A.L.R. 1001.

The language in In re Matter of Hill, 78 Cal.App. 23, 247 P. 591, which related to information conveyed secretly to a judge is equally appropriate here: 'And so, while the exact truth should be searched out, and all mere technicalities of procedure as distinguished from rules which protect substantial rights should be disregarded, the regular processes of the law provided to produce evidence, and the ordinary rules established to aid courts in testing and weighing it, are not scrapped because the proceeding is a summary one.

'In the instant case the process of the law was available to bring witnesses into court, and it should have been used for that purpose. If persons secretly informed the judge that the parents' home was not a fit place for this child, and if their information was reliable and of any value, these persons must have known facts which would warrant that conclusion. It was their duty to come forward and in a manly or womanly fashion give their testimony, so that this helpless infant might be withdrawn from danger and cruelty. But details whispered privately to a judge in chambers cannot be the basis of a final order. The more serious the accusation the greater the need that it be carefully tested, and to that end that no one interested be denied the right of cross-examination.'

If a petitioner felt the information received from such third person was essential to the hearing, that person should have been produced and subjected to cross-examination. A trial court should not and we will not give any weight to such hearsay.

Included in these juvenile folders are copies of a report from a school psychologist on an I.Q. test given the appellant in 1958 and the report of a psychiatric examination given her in 1965. These reports are classified as hearsay because there is no opportunity to cross-examine the one making the report, not because of any inherent unreliability. Sections 232.46 and 232.52 give appellant the right to subpoena anyone making such report for either direct or cross-examination at the county's expense. She did not exercise this right or show such witness was unavailable. We have no hesitancy in giving probative value to such reports under the rules set forth in section 232.46.

States exhibit #5 is the 'Psychiatric chart on Joann Harter from Polk County Broadlawns General Hospital'. The exhibit was identified by Helen Malloy, chief social worker at Broadlawns. She testified the chart was under her care, custody and control and that it was her duty to make sure the entries were entered correctly. The chart included a psychological examination, reports of a social worker and reports of psychiatric examinations by Dr. Sidney Sands including the one also appearing an the juvenile folder referred to above.

The reports of the social worker are primarily based on information obtained from third persons or are opinions and conclusions of the witness based thereon. We do not believe they have any probative value and have given them no consideration. The reports of the psychological and psychiatric examination were of probative value for the reasons stated above. Appellant could have called the witnesses for cross-examination or shown they were unavailable.

Appellant now claims Dr. Sands' reports are inadmissible under the doctorpatient privilege. This privilege was not claimed below on exhibit 5 and is therefore deemed to have been waived. State v. Koenig, 240 Iowa 592, 36 N.W.2d 765, 766; Shepherd v. McGinnis, 257 Iowa 35, 131 N.W.2d 475, 482; 58 Am.Jur., Witnesses, § 446.

Petitioner claims the legislature by section 232.46 has provided that the doctor-patient privilege found in section 622.10 does not apply to juvenile proceedings. While there is force to this argument, we do not decide this issue here.

Exhibit #7 is the medical record for Tammy Lynn Ford from Polk County Broadlawns General Hospital. It was so identified by Marion Stocke, medical librarian secretary, who testified the medical records were under her care, custody and control and that it was her duty to make sure the entries were correct. The identification was sufficient to give the records probative value. History which purports to recite how the injuries to Tammy occurred has been disregarded as lacking probative value.

III. We shall now summarize facts as we find them to be established by evidence having probative value as discussed above.

Joann Brisbois Ford Harter was born in 1942. By the time she was 16 she had been adjudged delinquent by the Polk County Juvenile Court for truancy. Psychological tests administered at that time revealed an I.Q. of about 65. She was permitted to quit school with a recommendation she take part in a vocational rehabilitation program. About this time her mother died and for two years she lived part time with her maternal grandmother and part time with her stepfather, who had remarried and whom she did not like. She did not get a steady job or take an interest in vocational rehabilitation.

In June 1960 she married Franklin Ford without permission. He had had juvenile problems...