C.O. v. State (In re L.O.)

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C.O. v. State (In re L.O.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of L.O., L.O., and G.O.,
persons under eighteen years of age.

_______________________________

C.O.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050349-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 265

 

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Third District Juvenile, Salt Lake Department, 456895

The Honorable Sharon P. McCully

Attorneys: Tupakk A.G. Renteria, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce and Suchada Bazzelle, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

    C.O. (Mother) appeals the termination of her parental rights. Mother argues that: (1) the juvenile court was incorrect when it found that Mother left her children with inappropriate caregivers; and (2) the juvenile court erred when it did not allow Mother to fire her court-appointed trial counsel. We affirm.

    As set forth in In re J.N., 960 P.2d 403 (Utah Ct. App. 1998), "we defer to the juvenile court because of its 'advantaged position with respect to the parties and the witnesses' in assessing credibility and personalities." Id. at 407 (quoting In re P.H., 783 P.2d 565, 570 (Utah Ct. App. 1989)).

    Mother argues that she left her children with an appropriate care giver, and left specific instructions with her friend on how to contact her in Wyoming if an emergency arose. The juvenile court made numerous findings to the contrary. In addition, the juvenile court found that mother "is not telling the truth about anything, or the mother is so impaired that she does not know the truth. The mother is totally not credible as a witness." The juvenile court's findings are sufficient to show there was a discrepancy between how the juvenile court and Mother viewed the same evidence. We defer to the juvenile court for such determinations. See In re J.N., 960 P.2d at 407. Therefore, Mother's first argument cannot succeed.

    Mother's second argument, that the juvenile court erred when it failed to discharge Mother's trial counsel, is without merit.

    In In re C.C., 2002 UT App 149, 48 P.3d 244, this court held that, "where dissatisfaction with court-appointed counsel has been expressed, juvenile courts must at least inquire into the '"specific way" in which [the party's] interests [have] not been represented.'" Id. at ¶12 (alterations in original) (quoting State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987)). It is undisputed that the juvenile court made the required inquiry. Instead, Mother argues that the juvenile court should have granted her request for new counsel because counsel advised her that the juvenile court could take judicial notice of prior adjudication findings.

    As set forth in In re C.C.,

The court's determination . . . should be governed by the "good cause" standard recognized in prior cases. Good 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."

Id. at ¶14 (quoting State v. Lovell, 1999 UT 40,¶31, 984 P.2d 382 (quoting United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)), cert. denied, 528 U.S. 1083 (2000)).

    The only reason given by Mother for her dissatisfaction with counsel was that counsel advised her that the juvenile court could take judicial notice of prior adjudication findings made by clear and convincing evidence. After conducting the required colloquy, the juvenile court held that this reason was insufficient to grant a request for new counsel:

    The only reason [Mother] wanted new counsel was because her counsel told her he could not set aside the Court's prior Findings made in September 2000 and September 2003. The Court could not find [Mother's] request was a reasonable basis to vacate the appointment of counsel. The Court also found it could not continue the trial unless good cause existed and the mother's displeasure with the prior findings was not good cause.

    We agree. "Courts may 'take judicial notice of the records and prior proceedings in the same case.'" In re F. M., 2002 UT App 340,¶3 n.2, 57 P.3d 1130 (quoting Riche v. Riche, 784 P.2d 465, 468 (Utah Ct. App. 1989)); see also Utah R. Evid. 201. Therefore, there was no basis to dismiss trial counsel for advising his client that the juvenile court may take judicial notice of prior adjudicated facts in these proceedings.

    Accordingly, we dismiss Mother's appeal.

______________________________

James Z. Davis, Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

William A. Thorne Jr., Judge

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