Orcutt, In Interest of

• Decision Date: 09 December 1969
• Docket Number: No. 53503,53503
• Parties: In the Interest of Tamara Jane ORCUTT, Juvenile. Floretta ORCUTT, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 66

173 N.W.2d 66

In the Interest of Tamara Jane ORCUTT, Juvenile.

Floretta ORCUTT, Appellant, v. STATE of Iowa, Appellee.

No. 53503.

Supreme Court of Iowa.

Dec. 9, 1969.

Joe A. Greenlief, Manson, for appellant.

Richard C. Turner, Atty. Gen., Lorna Williams, Sp. Asst. Atty. Gen., and James E. Van Werden, County Atty., Adel, for appellee.

MASON, Justice.

This is an appeal from a decree in a juvenile proceeding under chapter 232, Code, 1966, as amended by chapter 203, Acts of the Sixty-second General Assembly, terminating the parent-child relationship between Tamara Jane Orcutt and Barbara Jean Coffin and the relationship between the child and Floretta Orcutt, her grandmother, who assumed the role of her mother. Only the grandmother appeals.

I. Through previous arrangement between Floretta and her daughter, then married to Gary Allen, Barbara Jean gave birth to Tamera under Floretta's name September 2, 1964, in Lincoln, Nebraska. The child's original birth certificate listed Floretta Orcutt as her mother. Although the mother's age on this certificate reflected Barbara Jean's age, it was later amended to show Floretta's age as that of the mother.

At three days of age Tamara was taken from the hospital by Floretta; they lived as mother and child from then until Floretta was arrested December 29, 1966, on a charge of manslaughter as a consequence of the death of Patricia Lynn Orcutt, an illegitimate child Mrs. Orcutt received in Nebraska with the intention of later adopting.

March 17, 1967, following her plea of guilty to the crime of manslaughter Floretta was sentenced to the women's reformatory at Rockwell City for a term not to exceed eight years.

After Floretta's arrest on the manslaughter charge Tamara was placed in Barbara's home and April 24, 1967, Barbara was granted temporary custody on her and her husband's petition for adoption and to establish paternity. At that time Barbara ws married to William J. Coffin. He instituted divorce proceedings about January 15, 1968.

Barbara cared for Tamara Jane until January 25, 1968, when she was placed in a temporary foster home because of Barbara's admitted inability to cope with the problem of caring for the child.

February 8, 1968, the chief juvenile probation officer of Dallas County filed a petition in the district court, sitting as a juvenile court, alleging Tamara Jane Orcutt, a child under 18 years of age, was dependent and neglected within the meaning of Code section 232.2, subsections 14a, 14c, 15b and 15c; that Gary Allen, William J. Coffin, Barbara Jean Coffin and Floretta Orcutt are the parents of Tamara and/or her guardian; and that the parent-child relationship between Tamara Jane and her parents or guardian should be terminated.

Notice was served on Floretta Orcutt setting February 28 as the date for hearing on the petition. Continuance was granted and hearing commenced March 4 at 1:55 p.m.

Sometime before the hearing the court had appointed legal counsel for Tamara and had originally appointed another Perry attorney to represent Mr. Orcutt, but due to a personal crisis in his family he advised the court Thursday before the Monday hearing that he would be unable to represent Mrs. Orcutt. He discussed the matter briefly with the court and advised he had word from Mrs. Orcutt about calling certain witnesses for the hearing. Friday the court appointed Mr. Sackett, also from Perry, as counsel for Mrs. Orcutt. Because of her distant confinement in the women's reformatory at Rockwell City on the manslaughter charge Mr. Sackett did not have opportunity to consult with Floretta until 11:15 a.m. Monday.

At commencement of the hearing, the court, aware of Mrs. Orcutt's desire to call certain witnesses not present, inquired of her what she expected their testimony to be. Mrs. Orcutt replied their testimony would concern the type of care and quality of home she provided Tamara Jane during the 27 months following the child's birth.

Mr. Sackett immediately moved for a continuance stating, 'I would like to move that this hearing be continued on the grounds that I did not receive notification of my appointment as her attorney until Friday morning and did not have an opportunity to speak with Mrs. Orcutt, who does desire custody of Tamara, until about 11:15 this morning, and on that basis I have not had an opportunity to adequately prepare either to present evidence on her behalf or to cross examine any witnesses which may be called by the county attorney in this matter.' This motion was denied subject to change depending upon testimony introduced.

Barbara Jean Coffin appeared at the March 4 hearing without counsel and advised the court she did not wish to press her petition for establishment of paternity and adoption, asked the court to dismiss that action and stated she did not wish to participate in the hearing seeking custody of Tamara Jane.

At the conclusion of all evidence Mr. Sackett renewed the motion made at the beginning of the hearing. It was overruled and March 6 the court entered judgment terminating the parent-child relationship between Barbara Coffin and Tamara Jane and between Floretta Orcutt and the child, transferring her legal custody to the Dallas County department of social welfare with full authority to place her with a reputable child placing agency for the express purpose of adoption.

II. In seeking reversal Mrs. Orcutt as appellant contends (1) 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, (2) the rights of cross-examination of witnesses and confrontation of adverse witnesses are fundamental rights which apply to juvenile and child custody cases and are unconstitutionally denied by section 232.31, Code, (3) she was denied her right to fair trial and due process and (4) the preponderance of evidence under the rules applicable to civil cases did not justify termination of the parent-child relationship.

Code section 232.28, basis of her first proposition, provides:

'The child, parents, guardian, or custodian shall have the right to legal counsel. It the minor, parents, guardian, or custodian desire but are unable to employ counsel, such counsel shall be appointed by the court.'

This statute makes no distinction between a delinquency matter and one involving a dependent and neglected child. For both cases it recognizes that representation by one's duly constituted attorney is fundamental to our system of administration of justice.

In response to appellant's first assignment of error appellee's contention her constitutional and statutory rights were not denied as she was not a necessary party to the proceedings to terminate the parent-child relationship is not persuasive.

Floretta Orcutt's name was listed as the mother on Tamara's birth certificate; she had assumed the role of mother for the first 27 months of this child's life; and March 4 she was confined in the women's reformatory.

Code section 232.45 provides in part:

'The court shall have notice of the time, place and purpose of the hearing served on the parents of the child, the petitioner, the guardian of the person of the child, the person having legal custody of the child any individual standing in loco parentis of the child, and the guardian ad litem of any party. * * *.'

The trial court was correct in determining in the circumstances here that Floretta Orcutt was entitled to notice of the hearing. It would seem necessarily to follow that if she is entitled to a hearing, she is likewise entitled to be represented by counsel, if she desires such representation; and that she also has the right to present evidence and adduce witnesses. Otherwise, the right to an appearance before the court may be but a futile gesture. In support see Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298, 300, where the court quoted this from Powell v. Alabama, 287 U.S. 45, 68--69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170:

"What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. * * * If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.' (Emphasis supplied.).'

This right to counsel carries with it right of counsel to prepare the client's defense.

Mrs. Orcutt contends under this proposition she was denied the assistance of effective and well-prepared counsel.

Appellant's original counsel was unable to attend the March 4 hearing through no fault or design on the part of Mrs. Orcutt.

She makes no contention Mr. Sackett was incompetent or did anything other than afford conscientious representation considering the time allowed for conferences and preparation. But she argues that because of the short notice to Mr. Sackett of his court appointment as her counsel he was not given adequate opportunity to consult with her or her witnesses or prepare and acquaint himself with the facts or law of the matter.

Appellant strongly urges this contention in relation to State's exhibit 1, a 74-page typewritten report by the chief probation officer of the fifth judicial district in which he summarizes his investigation concerning records in the Dallas County department of social welfare, the county attorney's office and conversations with Barbara Coffin and Floretta Orcutt. He described the exhibit as containing 'practically all of the records involved in the case'.

It is clear that a defendant in a criminal case who goes to trial...