State, In Interest of M.L.

• Decision Date: 13 August 1998
• Docket Number: No. 971342-CA,971342-CA
• Parties: 349 Utah Adv. Rep. 49 STATE of Utah, in the Interest of M.L., a person under eighteen years of age. S.L., Appellant, v. STATE of Utah, Appellee.
• Court: Utah Court of Appeals

Page 551

965 P.2d 551

349 Utah Adv. Rep. 49

STATE of Utah, in the Interest of M.L., a person under eighteen years of age S.L., Appellant,

v.

STATE of Utah, Appellee.

No. 971342-CA.

Court of Appeals of Utah.

Aug. 13, 1998.

Grant W.P. Morrison and William P. Morrison, Morrison & Morrison, L.C., Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., and Jeffrey Buckner, Asst. Atty. Gen., Salt Lake City, for Appellee.

Martha Pierce and Penny Heal Trask, Salt Lake City, Guardians Ad Litem.

Before DAVIS, P.J., GREENWOOD, and ORME, JJ.

OPINION

GREENWOOD, Judge:

S.L. (Mother) appeals the termination of her parental rights in her son, M.L. We affirm.

BACKGROUND ¹

Mother had four children, N.T., R.P., T.T. (now deceased), and M.L. The Division of Child and Family Services (DCFS) first became involved with Mother in 1992, when N.T., then fourteen years old, threatened to kill herself. DCFS prepared a treatment plan shortly thereafter geared toward providing treatment for N.T.

Later in 1992, DCFS intervened in connection with Mother's son, R.P., who was then about eleven years old. R.P. was apparently having difficulty with Mother's boyfriend, M.L., Sr. Between November 1992 and the end of 1994, DCFS prepared four different treatment plans in an attempt to allow R.P. to remain in Mother's home. Generally, these plans indicated that Mother would attend parenting classes when such classes were available. Mother took no action to comply with any of the four plans' recommendations. M.L. was born March 11, 1993.

Despite M.L., Sr.'s apparent physical abuse of R.P., Mother married M.L., Sr. on February 1, 1994. ² That same month, she requested a pickup on R.P. because he had run away. ³

Mother was arrested on September 4, 1994 on drug charges. She was then placed on probation on September 22, 1994, and was arrested two days later, again on drug charges. On November 7, 1994, Mother was arrested on forgery and drug charges. ⁴ On November 28, 1994, Mother pleaded guilty to those charges and was incarcerated.

During the course of Mother's various arrests, Mother left T.T., who was then about three years old, and M.L., who was then about eighteen months old, in the care of her daughter, N.T., and a friend. ⁵ Mother had previously left the children with friends with whom she had used drugs in her home.

On November 15, 1994, after N.T. and the friend determined they could no longer care for the children, DCFS took T.T. and M.L. into protective custody. Mother agreed to place the children with her brother, B.T., and his wife, and the juvenile court allowed such placement with DCFS supervision. The court also ordered that Mother complete a psychological evaluation and a substance abuse treatment program. ⁶ The court allowed Mother visitation with the children, if possible, given her incarceration. In December 1994, Mother told her DCFS case worker that she would do whatever was necessary to get her children back, that she took responsibility for her actions, and that she was ready to change.

On March 9, 1995, and while in the custody of B.T. and his wife, T.T. died from a nonaccidental head injury. ⁷ After removing M.L. from B.T.'s home, and a second shelter hearing, DCFS was awarded temporary custody of M.L.

Mother remained incarcerated until May 1995, when she was released on probation to the House of Hope, a drug treatment facility. Although M.L. had previously been diagnosed with reactive attachment disorder and was awaiting placement at The Children's Center for treatment, DCFS changed that plan when arrangements were made for M.L. to enter the Mothers with Children program with Mother at the House of Hope on August 17, 1995. However, Mother tested positive for Valium on August 16, 1995. As a result, Mother was discharged from the House of Hope, her probation revoked, and she went to prison. Mother's drug use violated her most recent DCFS treatment plan and made fulfillment of most of its other requirements impossible.

After several review hearings, a twelve-month dispositional hearing was held March 6, 1996. Judge Robert Yeates ordered that DCFS extend reunification services to M.L.'s father, M.L., Sr., for an additional 120 days. At a July 8, 1996 hearing, the court ordered a trial home placement with M.L., Sr. and ordered that DCFS prepare a treatment plan to assist Mother after her upcoming release from prison. Mother was released from prison on July 31. On August 12, M.L., Sr. was arrested and incarcerated on drug charges, and M.L. was again returned to State custody. On August 13, DCFS determined that, "[b]ecause of [Mother's] past and the time limits of policy," a termination petition should be filed. DCFS believed "it would take probably six more months to a year of monitoring to ensure that [M.L.] would be safe, if placed with [Mother]." At a review hearing held September 23, 1996, the court authorized a change in goals from home return to adoption, ordered an end to reunification services, and set a review hearing for November 25, 1996.

Mother filed a motion for trial home placement and the State filed a Verified Petition for Termination of Parental Rights. The court deferred ruling on Mother's motion pending the outcome of the termination trial and set trial for March 17, 1997. On February 28, 1997, Mother filed an Affidavit of Prejudice requesting that Judge Yeates recuse himself from presiding over the termination trial. Judge Yeates forwarded the affidavit to Judge Andrew Valdez, the presiding judge, who found the affidavit legally insufficient.

At the termination trial, Mother produced the following evidence in support of her present ability to care for M.L.: that, during her most recent period of incarceration, she completed all available parenting classes and maintained regular visitation with M.L.; that, as part of her parole, Mother completed a sixteen-week substance abuse mental health therapy class at Valley Mental Health in January 1997; that she has not used drugs for eighteen months; that she has lived with her mother and sister in Magna since being paroled; that she pays room and board to her mother, as well as monthly restitution payments in connection with her forgery convictions; that she has worked as a waitress at the same restaurant essentially since her release from prison; and that she has a positive relationship with her parole officer and is in compliance with her parole agreement.

However, while presenting this evidence, Mother also presented damaging evidence. Mother blamed R.P. for her problems with him and, despite evidence to the contrary, denied that M.L., Sr. had ever been physically abusive toward R.P.

Mother also defended her decision to leave her children with her older daughter, N.T., and known drug users, stating that she trusted such people "to take good care of the children." Furthermore, Mother testified that, although N.T. uses marijuana, Mother does not believe N.T. has a drug problem. As for her own addiction, Mother testified that the addiction is a disease that will remain with her always but stated she will not need to continue taking substance abuse classes and that support groups might be useful "here and there."

Mother also explained that, although DCFS has suggested she discontinue certain activities with M.L., she has rejected those suggestions because "I should be able to do what I want with my son." Although Mother admitted that she had needed help in parenting skills, she cited only her knowledge of CPR and "learning children have choices" as examples. When asked whether she thought there were other parenting issues as well, she stated, "I don't. I think that's good enough to say." Finally, Mother admitted that her brother, B.T., from whom she and her mother were currently renting a house, was threatening to evict her.

Mother's mother--with whom M.L. would be staying if Mother regained custody of him--testified that Mother had always been a good parent toward M.L. and that, although Mother had neglected R.P., M.L. "was never neglected before and he'll never be neglected again." There was also evidence presented that Mother's mother had seen bruises on both T.T. and M.L. while the children were in her son's custody but that, rather than investigate their source, she attributed them to the "normal" biting that occurs among children.

The State presented evidence that M.L., who is four years old, has lived with at least six different caretakers since his birth. Although he appears to want a relationship with Mother, M.L. becomes more clingy and irritable after Mother's visits and at times wets the bed. M.L. has calmed down significantly since first coming to the family with whom he now lives and is making progress in dealing with his reactive attachment disorder. Dr. Kristina Hindert, a psychiatrist at The Children's Center who is currently treating M.L., testified that, in her professional opinion, he needs permanency and stability.

On May 2, 1997, the juvenile court terminated Mother's parental rights in M.L. This appeal followed.

ISSUES

Mother raises four issues on appeal. First, Mother contends that Judge Yeates should have recused himself because his presiding over prior proceedings involving M.L. could have biased him against Mother. Second, Mother argues that the juvenile court erred in failing to dismiss the State's case after the State's case-in-chief. Third, Mother argues that the juvenile court lacked sufficient evidence to terminate her parental rights in light of the evidence supporting her present ability as a parent. Finally, Mother asserts she is entitled to a new trial based on newly discovered evidence concerning her 1995 psychological evaluation results.

ANALYSIS

Recusal

Mother first argues that Judge Valdez erred in concluding her Affidavit of Prejudice was legally insufficient to support Judge Yeates's recusal from the termination proceeding. The question of whether a party's affidavit alleging judicial bias is...