State, Department of Health & Welfare v. Holt

625 P.2d 398, 102 Idaho 44, 1981 Ida. LEXIS 293

• Court: Idaho Supreme Court
• Decided: March 18, 1981
• Docket: 13287
• Status: Published

Opinions

McFADDEN, Justice.

This is an appeal from an order of the district court affirming an order of the magistrate division of that court which terminated the parental rights of appellant to her minor child, Angela Dee Holt. The magistrate’s order was appealed to the district court pursuant to I.C. § 16-2014 and I.R.C.P. 83. We affirm.

Counsel representing the appellant on this appeal did not represent her in the proceedings in the lower court. This opinion is being subdivided into related portions to make more understandable the issues being presented on this appeal.

I

The record of the hearing in the magistrate’s court discloses the following: Victoria Holt is the natural mother of Angela Dee Holt, born April 5, 1976. Victoria is appealing a decision of the district court which upheld a magistrate court decision to terminate her parental rights under I.C. § 16-2001 et seq.¹

At the time of Angela’s birth, Victoria was an unwed minor, living in a foster home, and on probation to the Department of Health and Welfare pursuant to the Youth Rehabilitation Act as a result of issuing an insufficient fund check in 1975. The probation and foster care continued during Victoria’s minority until January 1977. During this time Health and Welfare set guidelines to assist Victoria in caring for her child.

In May 1976, Victoria was incarcerated as a result of a probation violation. This incarceration lasted approximately two weeks. Following the probation violation, the Department petitioned the magistrate division of the Fifth District Court under the Child Protective Act to take the child into protective custody and place her in foster care. An order of temporary shelter was issued. On July 27, Victoria agreed before the magistrate court to Health and Welfare custody of Angela. She was not represented by counsel at this time. On August 24, the court issued an order affirming the stipulation and creating Departmental custody of the child for an undetermined time not to exceed two years. The child was placed in a foster home. A second order reflecting the same disposition was entered on November 17.

In September, 1976, after Victoria had progressed through two group shelter homes following her release from incarceration, and after she signed a contract with Health and Welfare governing the conditions upon which Angela would be returned to her, planning for the child’s return began. In the interim, Victoria visited the child at the Health and Welfare offices. Planning meetings were held during the early part of 1977, another contract governing restored custody was signed, and a projected date set for Angela’s return to Victoria.

On May 19, 1977, Victoria was arrested for forgery and issuing insufficient funds checks. On June 1, 1977, Angela was returned to Victoria pursuant to the contract agreements and other prior efforts between the Department and Victoria. The Department retained custody under the previous order entered in the magistrate court subject to the provisions of the contract allowing the child to be with Victoria. Angela remained with her mother until October 26, 1977, at which time Victoria was sentenced on the forgery and check charges. A number of caseworker visits occurred in 1977 in the period between June 1, and October 26; events during this time form the primary basis for the Department instituting the termination proceeding. At the time of sentencing, Angela was again taken by the Department pursuant to the pending protective custody and was placed in foster care.

II

The procedures in the magistrates court.

On May 1, 1978, the Department petitioned the magistrate court for termination of Victoria’s parental rights on the grounds of neglect, abandonment, inability to discharge parental duties because of mental illness, and on the basis that termination would be in the best interests of the child. At this time, Victoria was incarcerated under her previous sentence at the North Idaho Correctional Institute in Cottonwood. A public defender was appointed pursuant to I.C. § 16-2009 to represent Victoria in this proceeding.

On June 5, 1978, with Victoria and her counsel present, hearing was held before Magistrate Judge Smith. Following the conclusion of the first day of testimony, Judge Smith became ill. Upon the stipulation of the counsel for the respective parties that Judge Shaud would hear the remainder of the testimony and that a transcript thereof would then be submitted to Judge Smith for his determination of the entire matter, on June 7 the hearing continued before Magistrate Judge Shaud. The state’s case in chief was presented entirely on the first day of trial before Magistrate Judge Smith and the appellant’s case was presented on the second day of trial before Magistrate Judge Shaud.

On June 20, 1978, Judge Smith entered an order which set forth his findings of fact, and conclusions of law, and ordered termination of the parental rights of appellant in her child. The order also provided that legal custody of the child was to be vested in the director of the Department of Health and Welfare.

Ill

Proceedings in the District Court.

Appellant’s appointed counsel filed notice of appeal to the district court requesting a trial de novo on the grounds that the hearing in- the Magistrates Division was handled by different judges. See I.R.C.P. 83(b). In her notice of appeal she also states that she did not request a continuance because of the fact that she was serving a sentence for forgery and was to be returned to Cottonwood following the hearing. She also asserted that she was desirous of placing new testimony before the court which was not available in the magistrate proceeding.

New counsel for appellant appeared at the district court hearing on the appeal. Nothing appears in the record reflecting a ruling by the district court on the request for a trial de novo nor does the record contain anything reflecting what new testimony appellant wished to present to the court which was not available at the magistrate proceeding. All the record discloses is that at the time set for the hearing the district court announced that it would be heard on the record made in the magistrate court and that he had read the transcript and that the case was ready for argument.² This, of course, was an implicit denial of appellant’s request for a trial de novo. After the argument the district court announced its ruling, stating that the decision of the magistrate court was affirmed on the appeal. Later a formal order of affirmance was entered and appeal was taken to this court.

IV

Appeal to the Supreme Court.

Appellant’s first claim of error is directed to the failure of the district court to grant a trial de novo on the appeal from the magistrate court. Appellant contends that this was an abuse of discretion.

Following the illness of Judge Smith, the proceedings continued the next day before Judge Shaud. The record discloses the following:

“THE COURT [Judge Shaud]: This is the time set to continue with the matter entitled In the Interest of Angela Dee Holt, which is a petition for termination of parent-child relationship. I understand that this was started and heard in part before Judge Smith. That due to illness on his part and certain requirements that some of the witnesses be heard at this time or at least be present at this time, it is in the best interests of all perhaps if we continue with it. It is understood, I believe, and will counsel so stipulate that I, a Magistrate from the Fifth Judicial District may continue to hear the case at this time and rule on the evidence and then from the transcript made today together with the transcript of the first half of the proceedings, Judge Smith will then make a ruling. Will counsel so stipulate?

[Counsel for State]: On behalf of the State of Idaho and the petitioner, I will so stipulate.

[Counsel for appellant]: I’m actually the one that suggested that procedure so I would so stipulate also.”

I.C. § 1-2213 provides:

“(1) Appeals from final judgments of the magistrate’s division shall be taken and heard in the manner prescribed by law or rule.

(2) Unless otherwise provided by law or rule, a district court judge shall review the case on the record on appeal and affirm, reverse, remand or modify the judgment; provided, that the district judge in his discretion, may remand the case for a new trial with such instructions as he may deem necessary or he may direct that the case be tried de novo before him.” (Emphasis added.)

I.R.C.P. 83(b) provides in pertinent part:

“Magistrate appeals — Judicial review. —All appeals from the magistrate’s division shall be heard by the district court as an appellate proceeding unless the district court orders a trial de novo .... ”

Appellant asserts that due process of law requires that in the vast majority of cases the judge who hears the evidence must also enter the final decision of the court. Appellant points to the provisions of I.R.C.P. 63 ³ in arguing this contention, but does recognize that that provision is not truly applicable to the case at hand. Here Judge Smith heard the testimony of the State’s case in chief, and by stipulation of the parties Judge Shaud heard the appellant’s case. This situation is no different from many cases where a trial court will hear a large part of the case by oral testimony and the balance of the testimony from depositions of the witnesses.

In our view the primary issue on this first assignment of error does not involve an issue of lack of due process of law, but more properly the issue revolves around the right of trial counsel to stipulate procedures employed at trial. In this light it is our conclusion that the trial court did not err in its review of this case as an appeal on the record instead of a trial de novo.

The reason behind the foregoing conclusion is that generally an attorney of record has implied authority to enter into stipulations and agreements respecting matters of procedure. Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 489, 464 P.2d 926 (1970); Muncey v. Children’s Home Finding & Aid Soc., 84 Idaho 147, 151-2, 369 P.2d 586 (1962); Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919). In open court counsel stipulated that Judge Shaud could hear the testimony following Judge Smith’s illness, and that Judge Smith could ultimately decide the case, which he did. All of this dealt with a procedural step in the disposition of the case at the magistrate level. When this situation was presented to the district court as a part of the appellate record, there was nothing presented in the record to impair the authority of the district court to decide whether to hear the case on the record, or to order a trial de novo. The ultimate decision of the district court was one involving the exercise of its judicial discretion. In Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969), this court stated in regard to the standard of review by this court of a discretionary ruling by the trial court, “[u]nless such discretion clearly appears to have been unwisely exercised or to have been manifestly abused it will not be disturbed on appeal.” 92 Idaho at 809, 451 P.2d 542. See also Willis v. Willis, 93 Idaho 261, 265, 460 P.2d 396 (1969). Prom the record before this court we see no basis for saying that the trial court manifestly abused its discretion in not granting the appellant a trial de novo on her appeal to the district court.

The next issue presented by appellant raises a question as to the competency of her appointed trial counsel. She contends that the standards as to competency of her counsel should be those enunciated in State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). However, in her notice of appeal from the magistrate court no mention was made as to this issue, which is understandable, for it was her trial counsel that initially took this appeal on her behalf. Shortly thereafter, however, new counsel appeared on her behalf but no request was made to augment the record, nor was any issue raised in this regard as far as the district court record now before us is concerned. This court has repeatedly held that issues not properly raised below will not be considered for the first time on appeal to this court. Heckman Ranches, Inc. v. State, 99 Idaho 793, 799-800, 589 P.2d 540 (1979) and cases cited therein. The opportunity to raise this issue properly having been present, we see no reason to depart from that well established rule in this case.

Appellant also raises four related issues on appeal concerning the sufficiency of the evidence to support the termination order. In specific terms, appellant questions whether there was substantial and competent evidence to support termination on the basis of mental illness or deficiency, I.C. § 16-2005(d); abandonment, I.C. § 16-2005(a); neglect, I.C. § 16-2005(b) or as being in the best interests of the child, I.C. § 16-2005(e).⁴

The district court premised its affirmance of the termination order upon the single ground of neglect, stating that it found insufficient evidence in the record to support the other grounds set forth in the magistrate court’s order (i. e., mental illness or abandonment).⁵ Given this determination, we must determine whether there is substantial and competent evidence to support the finding of neglect as defined in I.C. § 16-2005(b). State ex rel Child v. Clouse, 93 Idaho 893, 897, 477 P.2d 834 (1970). A thorough and conscientious review of the magistrate court transcript and decision leads us to the conclusion that, though conflicting in some respects, there was such supportive evidence. The district court did not err in affirming the termination order on this ground.

The order of the district court affirming the termination order of the magistrates court is affirmed.

BAKES, C. J., and DONALDSON and SHEPARD, JJ., concur.

1 . Both parties note that although the record on appeal does not reflect the fact, the parental rights of the natural father were terminated by consent. The validity of any termination as it concerns the natural father is not in issue.

2 . The record states that counsel waived verbatim reporting of the oral argument.

3 . “Rule 63. Disability of a judge. — If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.”

4 . Neither the magistrate court nor the district court predicated their decisions on the ground of “best interests,” I.C. § 16-2005(e). (While the phrase did appear in some of the findings of fact entered by the magistrate court, it was not relied upon as a basis for decision.) Thus, we need not consider this contention.

5 . The district court was correct in noting that only one of the statutory grounds for termination need be supported in the evidence for the magistrate court’s order to stand. See I.C. § 16-2005 (“The court may grant an order terminating the relationship where it finds one or more of the following conditions exist ....”)