L.K. v. State of Utah

L.K. v. State of Utah

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of C.C., T.C., D.S. and M.M., persons under eighteen years of age.

______________________________

L.K.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020845-CA
 

F I L E D
(July 10, 2003)
 

2003 UT App 242

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Jackson, Bench, and Orme.

JACKSON, Presiding Judge:

In In re C.C., 2002 UT App 149, 48 P.3d 244, we remanded for the trial court to hold an evidentiary hearing and determine if L.K.'s complaints about her appointed trial counsel justified appointment of substitute counsel. We further directed the court to grant a new trial if it determined that the request for substitute counsel was supported by good cause. If the court determined that the request for substitute counsel was unfounded, however, its prior judgment would then stand as entered.

Pursuant to our decision, the trial court convened for the remand hearing. L.K. was sworn in and testified. The court took judicial notice of its file containing the record of prior proceedings and hearings in this case. New counsel argued the case for L.K. The court took the matter under advisement. Later, the court entered its written findings, conclusions, and order.

In its ruling on remand, the court entered the following findings: (1) "Prior to the . . . trial, [L.K.] had not expressed to the court any dissatisfaction with the representation of Mr. Jensen, even though he had represented her at multiple proceedings in the past"; (2) "This court has a long history with [L.K.] and her children. The court does not now and has not in the past found her to be a credible person"; (3) "At the trial, Mr. Jensen provided competent representation for [L.K.]. Six witnesses testified in her behalf and Mr. Jensen appeared to be prepared and appropriate in his representation of [L.K.]"; (4) "[L.K.] has repeatedly attempted to delay her juvenile court proceedings by seeking continuances. She waited to express her purported dissatisfaction with the representation of Mr. Jensen until the first day of a two-day trial involving the termination of her parental rights"; and (5) "The complaints of [L.K.] lack merit due to her lack of veracity with this court." Based on these and other such findings, the court ruled that good cause did not exist to justify the appointment of substitute counsel.

L.K. has not challenged the court's findings. Rather, she asserts two errors: first, that the court erred when it declined to admit evidence from third parties that would have shown that there was other evidence she would like to have presented at her termination hearing; and second, that the court erred by concluding that good cause did not exist for the appointment of substitute counsel.

L.K.'s first claim of error fails because the proffered evidence did not directly relate to the actual issue before the court. According to the express terms of our previous opinion, the trial court's duty on remand was to determine whether a breakdown had occurred in the relationship between L.K. and her trial counsel. We thus held that "[g]ood cause exists for providing substitute counsel whenever the court uncovers a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparent unjust verdict." In re C.C., 2002 UT App 149 at ¶14 (citations and quotations omitted).

Under such a limited inquiry, the testimony from third parties would only have been relevant if offered to shed light on the relationship between L.K. and her counsel. According to L.K.'s own descriptions, however, the proffered testimony was not focused on her relationship with her attorney. Instead, it was simply a compilation of affidavits and witnesses that L.K. believes should have been brought up at the original trial. This is nothing more than an attack on the trial strategy of L.K.'s trial counsel. However, inquiry into any claimed ineffective assistance of counsel was beyond the scope of our limited, narrowly focused remand. Accordingly, insofar as the proffered evidence did not address the specific, narrow question before the court on remand, the court did not err in refusing to consider it.

In support of her second claim of error, L.K. makes several assertions that she believes support a conclusion that she had good cause for substitution of counsel. She claims that trial counsel told her she was "stuck" with him as counsel; that trial counsel failed to subpoena witnesses at the neglect hearing; that trial counsel failed to investigate unsubstantiated DCFS referrals; that trial counsel failed to subpoena witnesses for the termination trial; and that trial counsel only met with L.K. two times and refused to meet with her at any other time.

L.K. fails to acknowledge, however, that the trial court made a specific credibility determination regarding her testimony. As noted above, the trial court concluded that her statements were incredible and unbelievable. We defer to a trial court's credibility rulings. See, e.g., Lefavi v. Bertoch, 2000 UT App 5,¶20, 994 P.2d 817 ("The trial court is 'in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record.'" (citation omitted)). Thus, L.K. is left without credible evidence to support her claim

of good cause, and her second claim of error therefore fails.(1)

We affirm.

______________________________

Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Gregory K. Orme, Judge

1. In view of our disposition, we need not reach either the State's suggestion of mootness nor L.K.'s related Motion to Strike.