T.L.S., In re, 82-439

• Decision Date: 15 June 1984
• Docket Number: No. 82-439,82-439
• Citation: 144 Vt. 536,481 A.2d 1037
• Parties: In re T.L.S. and M.J.C.
• Court: Vermont Supreme Court

Page 1037

481 A.2d 1037

144 Vt. 536

In re T.L.S. and M.J.C.

No. 82-439.

Supreme Court of Vermont.

June 15, 1984.

John J. Easton, Jr., Atty. Gen., and Elizabeth Grant Rome and Herbert W. Olson, Asst. Attys. Gen., Montpelier, for plaintiff-appellee.

William E. Dakin, Jr., and John C. Holme, Jr., Chester, for defendant-appellant J.B. (mother).

John J. Boylan, III, and Scott A. Whitted of Kiel & Boylan, Springfield, for defendant-appellant L.B. (stepfather).

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

The mother and stepfather of M.J.C. and T.L.S. appeal an order by the Vermont District Court transferring legal custody and guardianship of the children to the Commissioner of Social and Rehabilitation Services (S.R.S.). Appellants claim that the court's findings and conclusions were not supported by the evidence. They also contend that the court erred in failing to disqualify the presiding judge, in receiving evidence in derogation of the physician-patient privilege, and in failing to consider alternative dispositions of the parents' custodial rights. The State cross-appealed the court's refusal to terminate the mother's residual parental rights in the children.

The procedural history of this case began in 1978 with a petition filed by the Windsor County State's Attorney alleging that M.J.C. and T.L.S. were children in need of care and supervision. Hearings were held by the court below, after which it was determined that the children were without necessary parental care. Thereupon the court transferred custody of the children to S.R.S. with residual rights remaining in the mother. Both the mother, J.B., and the stepfather, L.B., appealed.

This Court vacated the order of the district court because the court had improperly ordered a psychiatric examination of the mother and had relied on the report of the examination in its findings. In re T.L.S. & M.J.C., 139 Vt. 197, 199, 425 A.2d 96, 97 (1980). The case was then remanded for further proceedings. Id.

After remand, the Attorney General entered his appearance on behalf of the State and filed a new petition based on new facts. Proceedings on the remanded case and the new petition were consolidated for trial. Prior to the hearings on the merits, the stepfather moved for recusal of the presiding judge because he had also heard the 1980 case and had, therefore, considered the improper evidence that resulted in reversal. The motion was denied. On July 8, 1981, a detention hearing was held, after which custody of the children was transferred to S.R.S. pending resolution of the case.

After hearings on the merits held on July 27 and September 18, 1981, the court made numerous findings and concluded that the children were in need of care and supervision in an order dated October 23, 1981. Disposition hearings were held on December 15, 1981, and February 4, 1982. On March 15, 1982, the court issued additional findings based on the disposition hearings, and transferred custody of both children to S.R.S. Because of lack of notice to the putative fathers of both M.J.C. and T.L.S., however, the court refused to terminate the mother's residual rights. The mother and stepfather appealed again, and the State filed a cross-appeal.

Both the mother's and stepfather's appeals were consolidated for hearing. The children did not join in the appeal.

The parents claim first that the findings and conclusions of both the October, 1981, and March, 1982, orders were not supported by the evidence. Appellants' specific challenges center on either the claimed absence of supportive evidence, or on evidence they characterize as clearly contradictory. We find no merit to this argument.

V.R.C.P. 52(a)'s "clearly erroneous" standard for appellate review of findings has been adopted in juvenile cases. See In re L.R.R., 143 Vt. 560, 563, 469 A.2d 1173, 1175 (1983). Accordingly, findings will stand if there is any credible evidence that supports them. Id. The court made numerous detailed findings which brought this case within the ambit of the statute defining "child in need of care or supervision," 33 V.S.A. § 632(a)(12), as it was required to do. In re R.H., 138 Vt. 425, 427, 415 A.2d 1318, 1320 (1980); In re J.M., 131 Vt. 604, 608, 313 A.2d 30, 32 (1973). A review of the record convinces us that there is ample support for the court's findings and conclusions.

The evidence adduced at the various hearings below discloses that throughout the lives of the two children, the mother has shown a complete inability to cope with the stress of parenting. Her tendency has been to react to that stress with abusive and neglectful conduct toward the children. She applied a commercial cleanser to the body of M.J.C. when he was an infant and, later, threatened to throw him from a second-story porch. She also admitted to the stepfather that she had tried to strangle M.J.C. When he was only three years old, M.J.C. told a social worker that he had been punched and kicked by his mother. On another occasion, that same social worker witnessed the mother shove a small bassinet containing the infant T.L.S. against a couch, and then remove T.L.S. by one leg and carry her in that manner into another room. After returning home from school one day when he was six years old, M.J.C. was struck on the mouth by his mother, causing a significant bruise to his jaw. In the same episode, the mother also banged his head against the wall and threw him to the floor.

Throughout the period of these events, the mother suffered from serious mental and emotional problems. S.R.S. has offered her mental health treatment as well as parental and marriage counselling. Her cooperation with these efforts, however, has been either infrequent or inadequate. At various times she has asked to have the children removed, and has contemplated offering them for adoption.

There is no indication that the children have ever been mistreated by the stepfather. However, he has been unable to control the mother's violent behaviour or prevent harm to the children. He has also been unable to provide a stable and caring atmosphere in the presence of the mother. As a result the children have been placed in a foster home.

In sum, while testimony of the parties and various other witnesses may conflict, there is adequate evidence to support the findings. Consequently, there is sufficient support for the court's conclusion that the children are in need of care and supervision. We find no error.

Appellants contend next that the presiding judge below erred in refusing to recuse himself from the proceedings after remand of the earlier case. They argue that the judge was biased against them because he had heard inadmissible evidence in the previous proceedings.

The Vermont Code of Judicial Conduct counsels that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding ...." Code of Judicial Conduct, Canon 3 C(1)(a), 12 V. S.A.App. VIII, A.O. 10.

When partiality is claimed because of personal bias, such bias or prejudice must be affirmatively shown by the party moving for recusal. State v. Ahearn, 137 Vt. 253, 271, 403 A.2d 696, 707 (1979); State v. Beshaw, 134 Vt. 347, 351, 359 A.2d 654, 656 (1976); In re Shuttle, 131 Vt. 457, 461, 306 A.2d 667, 670 (1973). In State v. Beshaw, supra, this Court found no showing of personal bias where the evidence showed only that the trial judge had earlier found the defendant guilty of contempt resulting from an assault on the judge. 134 Vt. at 351, 359 A.2d at 657. Although the presiding judge in the instant case had seen inadmissible evidence from the previous hearings in the matter, appellants make no showing that this resulted in personal prejudice directed toward them. See United States v. Lyon, 588 F.2d 581, 583 (8th Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 381 (1979) (absent showing of prejudice, fact that judge was aware of inadmissible evidence after remand did not require recusal).

At the hearing on appellant L.B.'s motion for recusal, the presiding judge stated that:

As a practical matter, this case was heard about three years ago and in the intervening time, the Court has heard hundreds of cases and ... [my] ... memory does not retain nearly as much as you're fearful that it will retain. However, in the interests of caution, ... I'll make an Order at this point to have the court clerk separate out any documentary evidence ... [objected to by the Supreme Court] ... so that it will be sealed and not available to the Court to review. I have not opened that file since its return.

Appellants made no showing that the presiding judge's conduct during trial or his findings were affected by the prior inadmissible evidence, nor is there any evidence to that effect in the record.

Any claim by appellants of bias based on personal knowledge of disputed facts, Canon 3 C(1)(a), supra, must also fail. A motion for recusal may not ordinarily be based simply on the judge's participation in earlier proceedings regarding the same case. Weber v. Garza, 570 F.2d 511, 512 n. 1 (5th Cir.1978); Deahl v. Winchester Department of Social Services, 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983) (no recusal required merely because judge presided at earlier custody hearing in same case). Federal courts interpreting 28 U.S.C. § 455(b)(1), which is nearly identical to Canon 3 C(1)(a), supra, have held that the personal knowledge of disputed facts must be extrajudicial; i.e., obtained from sources outside the judge's mere participation in the case. United States v. Kelley, 712 F.2d 884, 889-90 (1st Cir.1983); United States v. Phillips, 664 F.2d 971, 1002 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354, cert....