In re William S.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 34
Docket:	Som-99-157
Argued:	February 7, 2000
Decided:	February 25, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

IN RE WILLIAM S.

		


RUDMAN, J.

	[¶1]  The father of William S. appeals from the judgment entered in
the District Court (Skowhegan, Clapp, J.) terminating his parental rights
pursuant to 22 M.R.S.A. § 4055 (1992 & Supp. 1999).  The court found, by
clear and convincing evidence, (1) that the father has been unwilling or
unable to protect his son from jeopardy and that these circumstances are
unlikely to change within a time reasonably calculated to meet the child's
needs, 22 M.R.S.A. § 4055(B)(2)(b)(i); (2) that the father is unwilling or
unable to take responsibility for his son within a time reasonably calculated
to meet his needs, see 22 M.R.S.A. § 4055(B)(2)(b)(ii); (3) that the father
has failed to make a good faith effort to rehabilitate and reunify with his
child, see 22 M.R.S.A. § 4055(B)(2)(b)(iv); and (4) that termination was in
the best interest of the child, see 22 M.R.S.A. § 4055(B)(a);  William's father
challenges the propriety of the court's findings.  He asserts that the judge's
comments throughout the case indicated bias and denied him due process. 
Finding no substantial injustice, we affirm the judgment. 

	I. FACTS

	[¶2]  On October 10, 1997, three days after William was born, the
Department of Human Services (DHS) sought a preliminary child protection
order to remove William from his home.  DHS feared that William would be
subjected to the same abuse that his two-year-old half-brother, Bradley, had
experienced.  Bradley had been placed in DHS custody in July 1997 because
he was physically abused by his stepfather, William's biological father,
Jeffrey.  In January 1998, the court issued an interim order returning
custody of William to his biological parents.  
	[¶3]  A jeopardy hearing concerning both Bradley and William was
scheduled for December 29, 1997; rescheduled to April 27, 1998; changed
to April 14, 1998; and then rescheduled again to May 21, 1998.   All parties
met with the judge on April 14, 1998, for a case management conference to
determine the next stage of the proceedings.  William's father asserts that
comments made by Judge Clapp at that conference denied him due process.  
	[¶4]  When the judge inquired of the parties, he learned that
Bradley's parents wanted to consent to jeopardy, but that William's father
wanted to wait ninety days before consenting to jeopardy.  The judge
responded: 

I thank you for the elucidation, but we're going to have
something that comes out of here today so everybody knows
where they're going and where this case is gonna go.  I'm not
gonna let it sit in limbo.  Now, if your client's not willing to
agree to a C-1 -- a C-2 order, then just say so and we'll find
out where we're gonna go here.  

William's father explained that he wanted to wait because he thought
progress was being made and that DHS would dismiss its petition.  The
court stated:

Is [sic] if we're gonna go ninety days on -- and work on
problems that have caused this action to be initiated, and
some people are agreeing to do it and some people aren't,
then it's -- it doesn't look good.  And I -- and I want to get to
it one way or the other.  Either this case is open or it's
closed.  If it's open, then it's gonna be open and its gonna
have a -- have a focus.  If it's closed, it's gonna be closed and
we're gonna file it.  So if that's the case, then we're gonna --
we're gonna do that.  And that's what Mr. Reeves' client
wants, and that's what we're gonna do, is mark up for a trial.{1}

The dialogue continued as follows:

	Court:		How much time are you gonna be spending on trial?

	Ms. Stevens:	I don't want to unnecessarily create --

	Court:	We're past that point.  We've already unnecessarily
		created a trial.  Now how long are you gonna take to
		present your case? 
	
	Ms. Stevens:	It would probably take half a day, your Honor.  
	
	Court:	Mr. Reeves, how many witnesses are you going to
		present?

	Mr. Reeves:	I would present four to five.

	Court:	Four to five.  Do you -- do you really realize what
		you're doing here?

	Mr. Reeves:	Your Honor, if I could just --

	Court:	Do you really think that this is something that we
		really want to do for these kids?

	Mr. Reeves:	I certainly don't --

	Court:	If the State's right and they finish, does your client
		know that I can remove these children?
	
	Mr. Reeves:	Yes, he does.

	Court:		Okay. That's the dice he's willing to roll?

	Mr. Reeves:Your Honor, the only point I'd like to make is that
		the case manager, who has been overseeing this case
		all along, feels that in three months she's going to be
		able to determine whether or not --

	Court:	Mr. Reeves, do you know what that means?  That
		means that this case is still open.  There's still a
		concern that they have.  It's ninety days away before
		they think these kids are safe.  That means there's
		jeopardy in their minds.  I don't know if that ninety
		days is correct or it's -- or its not correct.  But you're
		trying to somehow say, "We should have a trial just
		because I want to continue the case for ninety days." 
		We're not going to continue the case for ninety days,
		we're gonna do something constructive.  If your
		client is not jeopardous to the child, and if there is
		no jeopardy to the child, despite the fact that the
		mother and other father are agreeing that there is,
		then we'll enter an order that says that.  But we're
		gonna have a trial.  But I'm not gonna have a trial just
		for the sake of having a trial.  I think you and your
		client need to think about this.  We're here to help
		the kids, and to help the parents keep this thing
		stable, rather than get into a long, drawn out
		litigation.  If we're talking about a whole day of trial
		over this issue as to whether or not ninety days, or
		one day, or sixty days before the kids get removed,
		so be it.  But once that case has rolled -- that dice
		has rolled, however it comes up is how I decide this
		case.   I really think you need to talk to your client
		about what's the best thing for these children as far
		as whether you have a trial or whether you do the
		right thing for these kids.  The kids are not out of
		the home at this stage.  If you think that Laurie
		Michaud{2} is correct that there's ninety days of
		treatment that needs to be done to get this case to a
		point where the kids are no longer in jeopardy. 
		Now, you do what you want with your client.  And I'm
		thinking that it's counterproductive.  We'll mark it
		up for trial.  Court can -- State will please submit
		orders of C-2 as agreed to by the parties, and the
		father, represented by Mr. Reeves, can have his trial.	

	The judge then inquired into whether William's father was employed
and upon hearing that the father was unemployed the judge stated:

Yeah.  What I'm telling you is that if we have an unnecessary
trial, I'm going to consider awarding attorney's fees.  If Mrs. -
- if the mother's lawyer has to go through this trial
unnecessarily, and we -- and we have this long, drawn-out
trial for the sake of having a trial, and everybody says it's
really neat that we go to court and we have a trial and if I
think it was unnecessary in the end, I'm gonna tell you right
now I'm gonna sanction somebody.  

	[¶5]  Five weeks later, on May 21, 1998, all parties, including
William's father, consented to a finding of jeopardy at the hearing.  The
court ordered, inter alia, that the custody of the children remain with their
mother and William's father; that the parents participate in parenting
education programs and therapy; and that the parents cooperate with DHS
to learn how to meet their children's emotional and nutritional needs.
	[¶6]  William's father next maintains that the court "chilled" his due
process rights because of statements made during the review hearing and
the termination hearing.  At the October 6, 1998, review hearing, the judge
stated: "Well which church? There seems to be a lock on the Mormon
church in this case . . . which we all know has a lock on family values in the
entire world."  Further explaining its perspective, the court stated in its
order of October 14, 1998: 

The assertion has been made by the [parents] throughout
these cases that they are devout Mormons and follow the
dictates of the church regarding family values.  The court's
orders after C-1 hearings and psychological evaluations even
recognize this factor.  This has been and is a sham and was
part of the entire "fake-good" cover-up of the abuse in the
home. That religion neither teaches nor condones their
behavior.  No civilized religion would, and the [parents] know
that.

	[¶7]  William's father further contends that the judge's questioning
regarding his employment status during the December 7, 1998, termination
hearing, constituted bias against his socioeconomic situation.  The
statements to which the father objects read as follows:

	Court:Okay.  Did you work when you were out there on the run? 
		I mean -- or are you always living off welfare?

	Father:	No, I worked.
	
	Court:	Because you had to.

	Father:	I worked for Academy Roofing, --

	Court:	Is that -- is that --

	Father:	--which was in Des Moines.

	Court:--because you couldn't get money any other way? You had
		to work, right?

	Father:	No, I could have stayed at the men's shelter.
	
	Court:Mmhmm.  But you did day labor.  Why aren't you doing day
		labor now? That's the question I'm asking.
	
	Father:	Maine doesn't have day labor.

	Court:You don't -- you can't go out and get a job apply -- you
		know there are plenty of employers that have signs out
		that say they're applying, people are applying.  
	
	Father:There's a few downtown, like U-haul, like Domino's Pizza,
		but you need a license, a car.

	Court:	Yeah.

	Father:	Or a license, and I don't have that.

	Court:	Yeah.

	Father:One of the things about Iowa, it's set up different than
		Maine, so you actually have to have a job and an income
		before you can get low housing, where Maine you sort of
		don't but out there you do.  So I -- you know, I had to work
		in order to qualify for housing.

	Court:	Did you work in Ellsworth?

	Father:	In Ellsworth?

	Court:	When you lived in the Ellsworth area?

	Father:	Yes.  Hancock Foods.  Blueberry factory.

	Court:Okay.  Okay.  Did you go to work in the blueberry industry
		this August?

	Father:No, I didn't.  Again, on account of transportation and on
		account of my ongoing court case that kept me over here
		in this area.

	Court:	Mmhmm.  I see. 
	

William's father, who was represented by the same attorney from the case
management conference through the termination hearing, never objected to
the judge's statements or motioned for the judge to recuse himself.  After
the judge terminated his parental rights, William's father appealed. 

II. DISCUSSION

	[¶8]  We review for obvious error because William's father failed to
motion for recusal.  See Rich v. Fuller, 666 A.2d 71, 75 (Me. 1995) (applying
the obvious error standard because counsel failed to raise the issue of bias
before the trial court).  Obvious error requires the court to vacate the trial
court's judgment if the error deprived the party of a fair trial and resulted in
a substantial injustice.  See Nyzio v. Vaillancourt, 382 A.2d 856, 863 (Me.
1978) (noting that the Court will overlook procedural default of failure to
object if party was deprived of a fair trial); accord M.R. Civ. P. 61. 
	[¶9]  Reviewing the comments challenged by William's father, we
find much of them to have been appropriate to the circumstances.  Some of
the judge's comments at the case management conference, however, were
intemperate, at the least; but the comments did not result in a substantial
injustice.  Statements made by a judge during the same or other judicial
proceedings will not constitute bias or prejudice "except in the
extraordinary circumstances that demonstrate a deep-seated favoritism or
antagonism that would make fair judgment impossible."  State v. Rameau,
685 A.2d 761, 763 (Me. 1996) (internal quotations omitted)  (quoting Liteky
v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994), in the
context of when statements constitute a basis for recusal).  In Liteky, 510
U.S. at 556, the U.S. Supreme Court noted that "expressions of impatience,
dissatisfaction, annoyance, and even anger," do not constitute bias or
prejudice.
	[¶10]  The judge's statements do not evince such deep-seated
favoritism or antagonism as to render a fair judgment impossible.  See
Rameau, 685 A.2d at 763.  The judge's remarks about the case having a
"lock on the Mormon church" were statements of dissatisfaction and
frustration.  The judge explained in his order that both the mother and
father attempted to deceive the court by pretending to be devout Mormons
and attributing the abuse they inflicted upon their children to the teachings
of the Mormon religion.  The judge stated that the parents knew that the
teachings of the Mormon church did not condone the abhorrent behavior of
the parents.  Thus, his comments do not exhibit bias, rather they exhibit an
awareness of and frustration with the parents' trickery.  See Liteky, 510 U.S.
at 555.
	[¶11]  William's father's contention that the judge acted with bias
against his socioeconomic status is without merit.  The judge merely
questioned the father about his employment.  See Rich, 666 A.2d at 75
(noting that the court may question a witness to "clarify testimony, save
time, or prevent the miscarriage of justice").  His questions were neither
derogatory nor judgmental and did not display bias.
	[¶12]  The judge's comments at the case management conference
pose more of a dilemma.  One could perceive the judge's comments, (1) that
he might sanction the indigent father for attorney fees if he contested
jeopardy; and (2) that he could grant DHS custody of William if the father
contested jeopardy, as an attempt to coerce the father into conceding
jeopardy.  Reading the statements in the context of the conference, it
becomes clear that the judge was not attempting to coerce William's father
into conceding jeopardy.  The judge was explaining ­p; albeit in a frustrated
manner ­p; why he could not stay the issue of jeopardy for another ninety days
and was presenting William's father with the legal consequences of a
jeopardy contest.  
	[¶13]  Child protection cases are unique.  Everyone involved in the
case must act in an expeditious manner for the best interest of the child. 
We often urge DHS and the district courts to closely adhere to the statutory
policy of addressing each stage of a child protection case at the earliest
possible date because the well-being of a child is at stake.  See 22 M.R.S.A.
§ 4032(3); In re Leona T. 642 A.2d 166, 168 (Me. 1994); In re Sarah T.,
629 A.2d 53, 55 (Me. 1993).  Any delay potentially harms a child who has
already endured significant trauma and is in dire need of permanency. 
Thus, the judge's frustration at being asked to postpone the hearing for
another ninety days is understandable.  A ninety day delay could have
deprived the infant of the opportunity to spend three crucial months in a
stable, loving home.  
	[¶14]  Although we do not condone the judge's comments, the
comments did not result in a substantial injustice.  The case management
conference was held in April 1998, the termination hearing occurred eight
months later in December 1998.  William's father had ample time to raise
the issue of bias before the court.  The judge did not make any intemperate
remarks at the termination hearing.  William's father had a full opportunity
to present evidence of his fitness as a parent at the termination hearing; he
was not limited in the number of witnesses he could present.  If, as
William's father contends, he was intimidated by the judge and, therefore,
failed to present all his evidence, then the father could have, in his brief or
at oral argument, outlined the evidence he would have offered.  To this day,
William's father has not made an offer of proof as to what evidence he would
have presented but for the judge's comments. 
	[¶15]  There is substantial evidence in the record to support the
court's findings.  William's father was a brutal, savage parent.  He pulled his
stepson's hair out in anger; withheld food; forced fed him; dumped snow on
the naked child; regularly kicked the child's legs out from under him;
rubbed a mixture of adult shampoo and salt into his eyes; and intentionally
dropped the child on his head.  Even though DHS removed William from the
abusive home when he was only three days old, the father, in those three
days, slammed his infant son's head against the crib.  There was no evidence
establishing that William's father had changed.  The judge's comments did
not deprive the father of a fair trial.  Clear and convincing evidence supports
the court's decision to terminate the father's parental rights.  
	The entry is:
Judgment affirmed.
                                                         
Attorney for appellant:

Douglas D. Hendrick, Esq., (orally)
P O Box 571
Cornish, ME 04020

Attorneys for appellee:

Andrew Ketterer, Attorney General
Matthew Pollack, Asst. Attorney General, (orally)
Patricia Stevens, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

Michelle A. Dolley, Esq.
24 Boston Avenue
Winslow, ME 04901