Lee, In re

• Decision Date: 06 December 1966
• Docket Number: No. 91,91
• Citation: 224 A.2d 917,126 Vt. 156
• Court: Vermont Supreme Court
• Parties: In re Donna Marie LEE and Peggy Ann Lee.

Page 917

224 A.2d 917

126 Vt. 156

In re Donna Marie LEE and Peggy Ann Lee.

No. 91.

Supreme Court of Vermont.

Dec. 6, 1966.

Ezra Dike, State's Atty., for the State.

Peter Forbes Langrock and Mark L. Sperry, Middlebury, for mother.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

The state's attorney of Addison County brought separate petitions to the Addison Municipal Court, sitting as a Juvenile Court, under 33 V.S.A. § 605, alleging that Donna Marie Lee and Peggy Ann Lee of Orwell, Vermont, were each a dependent child in that 'she is not receiving proper and adequate care, shelter, food and clothing.' Thereafter, a social worker of the Department of Social Welfare investigated the case and made report to the court on January 13, 1966, as required by 33 V.S.A. § 606. The hearing on each petition was held on May 19, 1966. The court issued its mittimus, or order, the same day committing the care, custody and control of each child to the Department of Social Welfare. The case is here on appeal of Marie Aline Lee, the mother of said children.

The appellant's claim of error is twofold, namely, that (1) the court's finding of dependency was based upon knowledge obtained prior to the court hearing and (2) the finding of dependency is not supported by evidence presented in court.

In this type of proceeding the municipal court sits as a juvenile court, its action being summary in nature. 33 V.S.A. § 609. The hearing by the court is not required to be held in accordance with the strict rules of procedure as in other court hearings. As stated in the case of In re McMahon Children, 115 Vt. 415, 63 A.2d 198, a case involving dependent children, we held at p. 419, 63 A.2d at p. 200, 'it must be classed with the probate courts, the public service commission, and other bodies exercising special and limited statutory powers not according to the course of the common law.'

Although juvenile proceedings are summary, they 'must not be so summary that they fail to measure up to the minimum essentials of substantive due process.' In re Rich, 125 Vt. 373, 377, 216 A.2d 266. In that case Chief Justice Holden in his concurring opinion said this at p. 379, 216 A.2d at p. 270:

'Accordingly, it is my view that the record of juvenile proceedings, called for in 33 V.S.A. § 603, should be something more than the minutes of what took place. It must establish the jurisdictional facts. Town of Brighton v. Town of Charleston, 114 Vt. 316, 331, 44 A.2d 628. It should also appear that the adjudication is sound in law. In re Hook, 95 Vt. 497, 504, 115 A. 730, 19 A.L.R. 610. As to this, the report of the Department of Social Welfare has no force as evidence at the trial of the case. Town of Brighton v. Town of Charleston, supra, 114 Vt. at 329, 44 A.2d 628. The record should demonstrate that the hearing was fairly conducted. Anything less than this is arbitrary power. People v. Fitzgerald, 244 N.Y. 307, 155 N.E. 584, 587.'

Again, at p. 380 of the Rich concurring opinion, p. 271 of 216 A.2d, it is said: '(F)or I believe without an adequate record, juvenile proceedings will be constantly beset by constitutional objections. Such vulnerability is neither consistent with the high purpose of the statute nor the best interest of the juvenile, whether he be a delinquent or a dependent and neglected child.'

The transcript of the hearing shows that the judge asked questions of several persons present at the hearing. None of these persons gave testimony under the sanction of the witness oath. See 31 Am.Jur., Juvenile Courts, § 74. Moreover, much of what they did say was incompetent and inadmissible as evidence. 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 juvenile courts than in any other court. 31 Am.Jur., Juvenile Courts, § 75.

The transcript shows that the court must have considered information received by him from sources outside of court prior to the hearing as well as from the report of the social welfare worker filled in January, 1966 in making its orders of commitment. Such information clearly was not for consideration for any purpose in making findings or in deciding the case. Siebert v. Siebert, 124 Vt. 187, 191, 192, 200 A.2d 258. In re, rich, supra.

Constitutional safeguards must be observed in this class of proceeding. The statute...