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In re Michael M.

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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:	2000 ME 204
Docket: 	Pen-00-270
Submitted 
 on Briefs:  	October 26, 2000
Decided:	November 27, 2000

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



IN RE MICHAEL M.

CALKINS, J.

	[¶1]  Terri R., the mother of Michael M., and her husband, Curt R.,
appeal from the order entered in the Probate Court (Aroostook County,
Dunleavy, J.) granting the motion of Matthew M., the father of Michael M., to
recuse the presiding judge.  The recusal motion was granted after the entry
of a final judgment terminating Matthew's parental rights.  We vacate the
order of recusal.
I. PROCEEDINGS
	[¶2]  Terri and Curt filed a petition in the Probate Court to terminate
Matthew's parental rights at the same time they filed a petition for the
adoption of Michael.  See 18-A M.R.S.A. § 9-204(a) (1998).{1}  They alleged
that Matthew abandoned Michael and that Matthew was unable or unwilling
to protect Michael from jeopardy.  Matthew entered an appearance through
his attorney, and a guardian ad litem was appointed for Michael.  A trial was
held on October 20, 1999, at which all parties appeared with their
respective attorneys as did the guardian ad litem who filed a report.  The
attorneys subsequently filed briefs, and it appears from the court file that
the evidentiary record was held open to allow Matthew to introduce
additional documents.  By letter dated February 14, 2000, Matthew's
attorney informed the court that no additional documents would be
introduced.
	[¶3]  On March 22, 2000, counsel for Terri and Curt submitted a
proposed termination order to the court, which the judge signed the next
day, thereby terminating Matthew's parental rights in Michael.  The order
recites that Matthew abandoned Michael; that he "failed to show a
willingness or ability to take responsibility for Michael . . . within a period of
time reasonably calculated to the meet the child's needs"; and that
Michael's best interests are served by the termination of Matthew's parental
rights.  In spite of the requirement of M.R. Civ. P. 52(a),{2} the court issued no
other findings.  
	[¶4]  Matthew filed a timely motion for findings of fact and conclusions
of law on March 30, 2000.  The motion is endorsed with "Motion Granted,"
signed and dated by the judge.  Matthew also filed a motion for recusal of the
judge, which is dated the same day as his motion for findings of fact, but was
not filed until April 3, 2000.    
	[¶5]  Matthew's recusal motion states that neither party complied
with a request of the court to file proposed findings of fact,{3} and that the
court terminated Matthew's parental rights without the benefit of proposed
findings and without making findings of fact.  The motion states that recusal
of the trial judge is required because the lack of findings of fact "reasonably
bring[s] into question the judge's impartiality."  The motion cites Canon
3(E)(2) of the Maine Code of Judicial Conduct.{4}  The same day the recusal
motion was received by the court, April 3, 2000, the judge signed an order
stating that the motion was granted.  On April 25, 2000, the court signed a
form entitled "Statement of Recusal and Order of Transfer."  The crucial
statement added to that form document reads as follows:  "I so disqualify
myself pursuant to Canon 3(E)(2) of said Code and the granting by me of
Respondent's Motion to Recuse dated March 29, 2000."  The court ordered
the case transferred to the Penobscot County Probate Court.
	[¶6]  Terri and Curt filed a notice of appeal on May 2, 2000.  The case
was transferred to the Penobscot County Probate Court.
II. APPEALABILITY AND STANDARD OF REVIEW
	[¶7]  Terri and Curt filed a timely appeal from the recusal order.  The
recusal order has had the effect of substantially delaying further proceedings
in this matter.  Although there is a final judgment in the case, the filing of
the motion for findings of fact stays the time period in which an appeal can
be taken.  See M.R. Prob. P. 73; M.R. Civ. P. 73(a).  The recusal order keeps
the trial judge from fulfilling his duty to make findings of fact.  
	[¶8]  Even though recusal orders may not come within the strict
classifications of interlocutory orders which are immediately reviewable, we
conclude that because there is a final judgment in this termination of
parental rights case, we will allow an immediate appeal of the recusal
order.{5} 
	[¶9]  Because the trial court's decision to recuse is within its sound
discretion, we review the decision on a motion to recuse for abuse of
discretion.  See Estate of Dineen, 1998 ME 268, ¶ 8, 721 A.2d 185, 188;
Brendla v. Acheson, 554 A.2d 798, 799 (Me. 1989).
III. DISCUSSION
	[¶10]  It is obvious that the order of disqualification was issued solely
in response to Matthew's motion to recuse.  The recusal motion was made
six months after the trial, and on the very day that the motion was filed, it
was granted by the judge.  Canon 3(E) does not require a judge to state the
basis for disqualification.  In this case, however, the disqualification order
itself recites that the reason for the disqualification is the motion. 
Additionally, the timing of the motion and order indicate that the only basis
for the disqualification order was the motion requesting it.  The order was
issued after trial and judgment, and immediately after the recusal motion.  It
is highly doubtful that the judge coincidentally discovered, six months after
trial, information, other than the filing of the motion, that required his
disqualification.  Thus, the inescapable conclusion is that the sole basis for
the disqualification is the one given in the motion. 
	[¶11]  Having concluded that the only reason for the recusal is that
stated in the recusal motion, we next examine the grounds set forth in the
motion.  The motion claims that the judge's impartiality has been brought
into question because the judge failed to make findings of fact and because
he made a decision without benefit of proposed findings.  These allegations
provide no rationale whatsoever for the disqualification of a judge.  We have
previously noted that opinions formed by a judge based on events in the
judicial proceeding at issue do not constitute a basis for recusal except in
extraordinary circumstances.  See Estate of Dineen, 1998 ME 268, ¶ 9, 721
A.2d at 188.  Matthew's motion for recusal recites no facts other than events
that occurred in the litigation sub judice.  
	[¶12]  A judge's impartiality cannot reasonably be questioned simply
because the judge has failed to issue required findings of fact.  It is true that
a judge's failure to issue findings of fact in a parental rights termination case
is serious and can lead to the vacating of the termination order.  See In re
Kenneth H., 1997 ME 48, ¶ 5, 690 A.2d 984, 985.  Nonetheless, it is a
failure that can be readily corrected when responsible counsel call it to the
judge's attention by way of an appropriate and timely motion.  Indeed, in
this case, Matthew's counsel called the failure to the court's attention.  By
endorsing that very motion with the words "Motion Granted," the court
indicated that it would be filing the required findings.  Furthermore, a
judge's impartiality cannot reasonably be questioned on the basis that
counsel have not heeded the judge's request to file proposed findings.  
	[¶13]  The timing of Matthew's recusal motion raises the concern that
his purpose was to collaterally attack the judgment and that he did not hold
a genuine belief that the judge's impartiality could be questioned.  Matthew
waited until the judgment was issued against him before coming forward
with his recusal motion, even though one of the grounds stated in his
motion, that the parties had failed to submit proposed findings as requested
by the judge, was known to him before the termination order was issued.
A party who has a reasonable basis for moving to disqualify a
judge may not delay in the hope of first obtaining a favorable
ruling and then complain only if the result is unfavorable.  Not
only is such a tactic unfair, but it may evidence a belief that the
judge is not in fact biased.
Madsen v. Prudential Fed. Sav. & Loan Ass'n, 767 P.2d 538, 542 (Utah
1988).  The court in Madsen, in vacating a recusal order entered after trial
but before the judge issued findings of fact, stated that when the recusal is
made at an advanced stage of the litigation process, "the basis for
disqualification should be thoroughly examined."  Id. at 544 n.5.
	[¶14]  A judge should not recuse himself or herself "merely because a
completely unfounded claim of prejudice [is] lodged against him by a
defendant."  State v. Aubut, 261 A.2d 48, 50 (Me. 1970).  We recognize the
sensitivity with which a motion for recusal must be treated by a judge. 
Judges must ascertain whether they, in fact, come within any of the
categories requiring disqualification in the Code of Judicial Conduct and
whether there is any other basis upon which their impartiality may
reasonably be questioned.  See Maine Code of Jud. Conduct, Canon
3(E)(2)(a)-(c).  At the same time judges must not allow litigants to utilize the
process of a recusal motion to delay or thwart the judicial proceedings
where there is no reasonable basis for the motion and it is obvious on its face
that it was intended to halt or delay the litigation.  "A judge is as much
obliged not to recuse himself when it is not called for as he is obliged to
when it is."  In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312
(2d Cir. 1988).  
	[¶15]  Although the granting or denying of a motion to recuse is within
the discretion of the court, a judge who disqualifies himself or herself, after
trial and judgment, for no reason other than an unfounded and meritless
claim of partiality, has abused the judge's discretion.  Considering all of the
circumstances in this case, we conclude that the court abused its discretion
by granting the motion to recuse.  We vacate the recusal order and the
transfer order contained within it, and we remand the matter to the Probate
Court, from which it originated, for the judge to issue the required findings
of fact as quickly as possible. 
	The entry is:
Order of recusal and transfer vacated.  Case
remanded to the Probate Court for further
proceedings consistent with this opinion.

Attorney for appellants: Michael E. Carpenter, Esq. P O Box 1406 Houlton, ME 04730 Attorneys for appellees: Brian E. Swales, Esq. P O Box 306 Houlton, ME 04730 Thomas W. Wells, Esq. P O Box 398 Houlton, ME 04730 Guardian ad Litem: Richard C. Cleary, Esq. 21 Military St. Houlton, ME 04730
FOOTNOTES******************************** {1} . Section 9-204(a) provides: "A petition for termination of parental rights may be brought in Probate Court in which an adoption petition is properly filed as part of that adoption petition except when a child protection proceeding is pending or is subject to review by the District Court." Termination proceedings in Probate Court are subject to the requirements of 22 M.R.S.A. §§ 4050-4058 (1992 & Supp. 1999). See 18-A M.R.S.A. § 9-204(b) (Supp. 1999). {2} . M.R. Prob. P. 52 states that M.R. Civ. P. 52 governs procedure in all civil proceedings in probate courts. M.R. Civ. P. 52(a) states, in relevant part: "[I]n every action for termination of parental rights, the court shall make findings of fact and state its conclusion of law thereon whether or not requested by a party." {3} . Neither the court file nor docket entries indicate that an order or request to the attorneys to file proposed findings was made. A few days after Matthew filed his motion for findings, Terri and Curt filed proposed findings. {4} . Canon 3(E) provides in relevant part: (2) A judge may disqualify himself or herself on the judge's own initiative without stating the grounds of disqualification, and shall disqualify himself or herself on a motion for recusal made by a party, in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer . . . . {5} . The case of Luhr v. Bickford, 661 A.2d 1141 (Me. 1995) does not require us to hold that disqualification orders are nonappealable. In that case we discharged a report from the Superior Court which had determined that an appeal from a disqualification order of the District Court was unreviewable. We do not read Luhr as standing for the proposition that recusal orders are nonreviewable. Because the report was discharged, the case has little precedential value on the merits. Furthermore, the facts of that case make it clearly distinguishable from this one. In Luhr the District Court judge, who recused himself following a pretrial conference, stated that his recusal order was issued on his own initiative and his reason related to his personal bias. Id. at 1142. When a judge disqualifies himself or herself sua sponte, before trial and judgment, because of a personal bias, it is highly doubtful that such order could ever be an abuse of discretion. In this case, however, the recusal was at the behest of a party and not because of a personal bias of the judge.