State ex rel. Baby Girl Marie , 561 P.2d 1046 ( 1977 )

MAUGHAN, Justice:

Before us is a mother’s petition to vacate a decree of the Juvenile Court, terminating her parental rights. The petition, in substance and effect, is a direct attack on the judgment. The petition specifically alleges the court lacked jurisdiction to take the action it did. That point is well taken. The court lacked jurisdiction. We reverse, and vacate the order of termination. All statutory references are to U.C.A. 1953, as amended.

55-10-77(5), confers jurisdiction upon the Juvenile Court to terminate parental rights. However, this statutory court is not granted unlimited power to terminate the parent-child relationship; the exercise of its jurisdiction is strictly and expressly limited by statute. 55 — 10—100(16) provides:

The court may terminate all parental rights, provided that the provisions of section 55-10-109 are complied with.

Thus, if the Juvenile Court does not comply specifically with the provisions of Section 109 in a termination proceeding, any decree entered is in excess of its jurisdiction, is void, and subject to direct attack in a proceeding to vacate.¹

55-10-109(1)(a), (b), (c) set forth the limits within which the court may exercise its power, when an involuntary termination of parental rights is sought. The limitations for a voluntary termination are set in 55-10-109(5). Subsection (2) sets forth the specific procedure to which there must be adherence to sustain the validity of a decree of termination; included therein is the provision, in mandatory terms, the parties must be advised of their right to counsel.

In the instant case, the petition and summons were on their face insufficient to invoke the jurisdiction of the court in a parental termination proceeding.

The allegation was the child was homeless or without proper care through no fault of the mother. This allegation follows the statutory definition of a “dependent child,” 55-10-64(18), and would be sufficient to invoke the jurisdiction of the court for a custodial proceeding. Such must be distinguished from a termination proceeding pursuant to 55-10-109. The petition and summons further assert the mother desires to care for the child; is unable to do so, because the mother is seventeen years of age and cannot provide financial support; and the mother’s parents are unwilling to care for the child. These allegations do not fall within the ambit of (a), (b), (c) of (1) of 55-10-109, and totally insufficient to invoke the jurisdiction of the court in a termination proceeding.

The mother had been represented by counsel in two prior hearings on October 6 and November 10, 1974. At this final hearing it was determined the child would remain in the custody of the Division of Family Services, the mother would have visitation privileges, and the matter would be reviewed in one year. In less than a month, on December 2, 1974, the petition to terminate all parental rights was filed, and the state concedes no notice of this petition was sent to counsel.

It' was within this setting the young mother appeared at the hearing on January 9, 1975 where her rights were terminated. The only adult present, in addition to the judge and the prosecutor, was a social worker with D.F.S., who allegedly, had consistently exerted pressure on the mother to release the child for adoption. The record further reveals the social worker interjected herself into the proceedings and attempted either to answer, or direct the answer, for the mother. The record further raises a serious question as to whether the mother understood the nature of the proceedings. Her responses indicate she did not appreciate the distinction between a foster home and an adoptive home. The record does not indicate she was informed of her right to counsel. The Juvenile Court conceded she was never informed of her right to appeal.

The state contends the proceeding was a type of hybrid between a voluntary and involuntary termination proceeding, and the decree of termination can be supported on either basis. The following are the findings of the court to support termination of the mother’s rights:

The natural mother of the above named child is unable to adequately provide for all the needs of the child and agrees that it is in the best interest of said child for parental rights to be terminated and for said child to be placed for adoption.

Such a finding shows the court had exceeded its jurisdiction under the only relevant involuntary grounds, viz., 55-10-109(1)(a) “ . . . parents are unfit or incompetent by reason of conduct or condition seriously detrimental to the child;

There was no finding, evidence, or allegation the mother was either unfit or incompetent, whether by conduct or condition, or that such had a seriously detrimental effect on the child. In the petition and summons, the entire termination proceeding was predicated on the mother’s inability to provide financial support. Impecuniosity will not support a termination decree.

The decree may not be sustained as a voluntary termination since the court can only exercise its power under 55-10-109(5) when it is initiated by a voluntary petition of the parent. Furthermore, the decree must indicate the termination was based on the best interests of the parent and the child, which was not found in this case.

At the hearing on the petition to vacate, the court had a recollection there was a discussion off the record concerning counsel. Such a view merely sustains the mother’s claim, for 55-10-109(2), commands:

. A verbatim record of the proceedings must be taken and the parties must be advised of their right to counsel.

The statute expresses a specific legislative intention to avoid the unfortunate consequences which occurred in this matter.

The finding made by the court in its denial of the mother’s petition to vacate merits examination.

Mr. Daines [mother’s counsel] according to uncontroverted representation to the court, advised the mother in connection with the petition for permanent termination and stood ready to appear with her at the hearing on the date the decree was entered but refrained from appearing when the mother informed him that she had decided to relinquish the child voluntarily and that she neither needed nor desired that he appear.

This finding is not supported by any admissible evidence. The counsel for the state, not under oath or as a witness, merely related what he recalled was a conversation with the mother’s counsel — hearsay evidence, The mother’s counsel was not called as a witness. The record indicates the mother shook her head during these representations. The court refused to permit the mother to testify and controvert the unsworn representations.

The court further found the mother was guilty of laches by not bringing her petition to vacate for a period of one year and three months. Since the mother was precluded from testifying there is an insufficient factual basis to sustain this matter.² Particularly, the mother has asserted in her brief the state deliberately engaged in a course of conduct designed to conceal her legal rights, e.g., she frequently went to the D.F.S. seeking knowledge of her child, she was not advised to seek legal assistance until the child had been adopted for a period of eight months.

The instant case is a tragic example which results from a failure to adhere to a clearly expressed statutory standard. The permanent termination of all parental rights is one of the most drastic actions the state can take. The legislature has limited the grounds therefor and acknowledged that in such a proceeding due process requires the assistance of counsel.³ Here the state contends a young girl, standing alone, with full knowledge of her rights and the consequences of her actions, knowingly and intelligently waived her right to counsel, and to the baby she loved and desired to keep. Neither the record nor the law will sustain such a position.

WILKINS and HALL, JJ„ concur.

1 . See Farley v. Farley, 19 Utah 2d 301, 431 P.2d 133 (1967). Jurisdiction as used herein is in the limited sense of the term, viz., the court lacked the power to give the particular relief it did.

2 . Also see 46 Am.Jur.2d, Judgments, § 752, p. 915: “ . . . The defense of laches has been regarded as not available against a motion to open or vacate a void judgment, for the reason that no amount of acquiescence can make it valid. . . . There may be some instances, however, under which laches or delay may be asserted to preclude relief, as where others innocently relied on the record of the judgment.”

3 . State v. Jamison, 251 Or., 114, 444 P.2d 15 (1968).