T.M. and S.M. v. State (In re T.M., K.M., & N.M.)

T.M. and S.M. v. State (In re T.M., K.M., & N.M.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of T.M., K.M., and N.M.,
children under eighteen years of age.

______________________________

T.M. and S.M.,

Appellants,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030648-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 236

 

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Third District Juvenile, Salt Lake Department

The Honorable Kimberly K. Hornak

Attorneys: T.M. and S.M., Murray, Appellants Pro Se

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 Billings, Davis, and Jackson.

PER CURIAM:

This case is before the court following a remand pursuant to our decision in In re T.M., 2003 UT App 191, 73 P.3d 959. We affirmed on all issues except the claim that the juvenile court erred by not inquiring into T.M. and S.M.'s (Parents) complaints regarding court-appointed counsel. We remanded "for an evidentiary hearing to determine whether Parents' complaints concerning court-appointed counsel justified granting Parents' requests to substitute privately-retained counsel of Parents' choosing in place of court-appointed counsel." Id. at ¶23. If so, the juvenile court would grant a new trial, and if not, the judgment terminating parental rights would stand as entered. See id.

"[J]uvenile courts must explore whether there is any validity to an indigent parent's expressed complaints and determine whether the parent's 'relationship with appointed counsel has deteriorated to the point that sound discretion requires substitution or [the] right to counsel would be violated but for substitution.'" In re C.C., 2002 UT App 149,¶10, 48 P.3d 244 (citation omitted). On remand, the juvenile court must determine whether "good cause" exists for substitution. Id. at ¶14. "Good cause exists for providing substitute counsel whenever the court uncovers a 'conflict of interest, a complete breakdown in communications[,] or an irreconcilable conflict which leads to an apparent unjust verdict.'" Id. (citations omitted).

On remand, Parents claimed that counsel did not meet with them, respond to calls, or file appropriate motions. Both attorneys testified that they met with their respective clients and spoke with them on the telephone, and neither was aware of any breakdown in the attorney-client relationship prior to March 26, 2001. The court entered findings of fact, including a finding that "[t]here was no breakdown in the relationship between the parents and their attorneys such that substitution of counsel was required." The court further found that "[p]rior to March 26, 2001, neither parent expressed to [the] court any dissatisfaction with the representation of their respective attorneys, even though their attorneys had represented them at multiple hearings." The court found that counsel "talked with the parents on the phone and met with the parents on several occasions to prepare for trial." Finally, the court found "that the parents' current representations concerning their dissatisfactions with the representations of their attorneys are neither credible or trustworthy."

Parents' brief fails to focus on the issue before this court and attempts to reargue issues resolved by our earlier opinion. See generally In re T.M., 2003 UT App 191, 73 P.3d 959. The sole issue before us following remand is whether, after appropriate inquiry, the juvenile court correctly concluded that good cause did not exist to justify appointment of substitute counsel based on Parents' complaints. Parents fail to marshal the evidence supporting the findings of fact following remand and demonstrate that any finding is clearly erroneous. See In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997) (requiring appellants to marshal the evidence supporting findings and demonstrate that despite the evidence, the findings are so lacking in support as to be against the clear weight of evidence). For the first time on appeal, Parents claim appointed counsel prepared documents that "were highly inaccurate and incomplete." At no time in the hearing on remand did either of the Parents testify about incomplete or inaccurate documents or identify any such document. Accordingly, we do not consider this newly asserted claim. See In re E.R., 2001 UT App 66,¶9, 21 P.3d 680 (stating appellate court will ordinarily not consider any issue raised for the first time on appeal). The court found Parents' testimony on the communication claims not to be credible. "[T]he juvenile court . . . is given a 'wide latitude of discretion as to the judgment arrived at' based not only on the court's opportunity to judge credibility firsthand, but also based on the juvenile court judges' 'special training, experience, and interest in this field . . . .'" Id. at ¶11 (citation omitted).

The juvenile court conducted a detailed inquiry into the Parents' dissatisfaction with former appointed counsel. Although they claimed their respective counsel failed to communicate with them, counsel testified about meetings and telephone contacts and denied any breakdown in communication. The juvenile court found the Parents' contrary testimony not to be trustworthy or credible. Parents testified that they retained private counsel by telephone on the same day the best interests trial was to commence, although that counsel was not available to appear. Parents' testimony did not establish good cause for substitution of counsel, although they wished to replace appointed counsel with private counsel.(1) Based upon the court's inquiry into the Parents' dissatisfaction and its conclusion that good cause did not support substitution of counsel, we affirm the decision that the order terminating parental rights should stand as entered.

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Judith M. Billings,

Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge

1.The juvenile court concluded that "the parents had counsel of their choice midway through the hearing and that counsel could have recalled the witnesses from the first two days of the best interest hearing and examined them." However, this alternative conclusion does not address the specific inquiry on remand into good cause for dissatisfaction with appointed counsel.