author: KEITH RAPP, Judge: GOODMAN, J.,

text:
    2003 OK CIV APP 29
    In the Matter of C.R.T., an alleged deprived child, Gail Thomason, Plaintiff/Appellant, v. State of Oklahoma, Defendant/Appellee.
    No. 96,753.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Feb. 24, 2003.

      Avery A. Eeds, Jr., Elk City, OK, for Plaintiff/Appellant.
    Richard L. Dugger, District Attorney, Ging R. Farris, Assistant District Attorney, Arapaho, OK, for Defendant/Appellee.
   Opinion by

KEITH RAPP, Judge:

T 1 The trial court defendant, Gail Thoma-son (Mother), appeals the judgment entered on a jury verdict terminating her parental rights as to her child (CRT). The termination petition was filed by the State of Oklahoma (State). This Court reverses and remands for a new trial.

BACKGROUND

T2 The parties have little dispute about the facts. Mother suffers mental illness and, possibly, alcohol and drug abuse induced mental illness. CRT was placed in emergency custody of the Department of Human Services (DHS) in February 1999, and was adjudicated as a deprived child in April 1999, on the State's petition, alleging grounds based upon Mother's mental health condition. The State alleged that Mother "has severe mental problems which makes(sic) it impossible for her to provide for the needs" of CRT as its ground for the alleged state of deprivation. Among other items, the Mother's mental health treatment plan required her to contact, maintain contact, and follow the directions of unnamed mental health services.

{3 CRT has been in foster care since that . time. CRTs Father's parental rights have been terminated and that is not an aspect of this case.

T4 The State filed an amended petition to terminate Mother's parental rights on June 4, 2001. The grounds alleged CRT had been in foster care for 15 of the last 22 months, Mother's failure to complete treatment plan, Mother's failure to correct the conditions leading to the deprived status adjudication, and that it was in CRTs best interest to terminate Mother's parental rights. The appropriate subsections, not stated in the petition, are 10 O.S. Supp.2000, § 7006-1.1(5) and (15). The State did not specifically allege as grounds for termination the mental illness provisions of 10 O.S. Supp.2000, § 7006-L.1(A)(18), although its petition contained the non-specific catchall "et seq."

[5 Mother demanded, and was provided, a jury trial. At the close of the evidence, the trial court instructed the jury as to the State's theory under subsections 5 and 15. The court also instructed the jury, at Mother's request, as to the elements of subsection 13. The jury's verdict was general and did not specify whether its decision encompassed one or all of State's theories.

T6 However, the trial court's judgment recited that termination was based upon remaining in foster care for the requisite period of time and for Mother's failure to complete the treatment plan and failure to correct the conditions leading to the deprivation adjudication. Mother appeals.

STANDARD OF REVIEW

T7 In at least three cases, the appeals Court has defined the function of the appellate review as a thorough review of the ree-ord in light of the elements to be proven and to affirm the trial court if it is not contrary to the weight of the evidence. In re T.H.L., 1981 OK 103, ¶7, 636 P.2d 330, 333; In re Christopher H., 1978 OK 50, ¶19, 577 P.2d 1292, 1293; In re C.T., C.T. and A.T., 1999 OK CIV APP 55, 16, 983 P.2d 523, 525. On the other hand, Oklahoma jurisprudence has long been committed to the principle that Jury verdicts will be upheld if supported by competent evidence. See In re T.R.W., 1985 OK 99, 722 P.2d 1197, (an adjudication of deprivation by a jury, citing Hames v. Anderson, 1977 OK 191, 571 P.2d 831, a tort case); see also, In re M.B., C.B. and T.B., 2000 OK CIV APP 56, 6 P.3d 1072, (where the evidence was not only clear and convine-ing but also substantially undisputed), and, In re C.C., 1995 OK CIV APP 127, 907 P.2d 241, (a parental termination case decided by a jury, citing Doyle v. Kelly, 1990 OK 119, 801 P.2d 717, a contract dispute case). Language in this latter line of authority indicates that if there is any competent evidence, including the reasonable inferences from the evidence before the trier of fact, tending to support the verdict, then the judgment will not be disturbed on appeal. In re T.R.W., 1985 OK 99 at ¶13, 722 P.2d at 1200; In re J.M., 1993 OK CIV APP 121, ¶5, 858 P.2d 118, 120-21. Initially, these lines of authority suggest a conflict in the standard of review.

18 This Court, after review of cases, concludes that there is no conflict and that the decision to terminate parental rights must pass muster under the more stringent test where this Court reviews the weight of the evidence to support the decision to terminate. Moreover, the very nature of the matter demands the application of the stricter standard of review. As stated by the Oklahoma Supreme Court:

The interest of children in a wholesome environment has a constitutional dimension no less compelling than that the parents have in the preservation of family integrity. In the hierarchy of constitutionally protected values both
interests rank as fundamental and must hence be shielded with equal vigor and solicitude.

In re T.H.L., 1981 OK 103 at ¶3, 636 P.2d at 334.

T9 The strict standard of review follows from the reasoning of the Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). There the Court decided that Due Process of Law required that the state be held to a "clear and convincing evidence" burden of proof in parental termination cases. Thus, it is readily seen that a termination of parental rights action necessarily involves the fundamental liberty interest of natural parents in the care, custody, and management of their child and protection of the family unit. Santosky, 455 U.S. at 754-55, 102 S.Ct. at 1394-95. Such proceedings must be conducted using this more stringent standard of review.

T10 The Court examined and characterized the nature of the proceedings to reach its conclusion in light of the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). They are: private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest to support use of the challenged procedure. The Court's examination of the proceeding led it to conclude, as to all of the Eldridge factors, that Due Process demanded a strict burden of proof. The Court observed that the fact-finding process pitted the State against the parents with the parents alleged to be at fault and unfit so that the ultimate result, if in the State's favor, was a permanent severance of a fundamental and constitutionally protected parent-child relationship.

11 The Santosky Court noted that appellate review is not a "curative for an inadequate burden of proof." Santosky, 455 U.S. at 757 n. 9, 102 S.Ct. at 1396 n. 9. A logical extension of this point means that an appellate review utilizing a standard less strict than demanded under the cireumstances, may not conclude that reversible error has occurred, even though the conclusion would be to the contrary under a stricter standard of review. Such a risk in dealing with a constitutionally protected entity cannot be allowed.

112 Moreover, here the more stringent standard of review is also triggered by the fact that the State shifted its position from an original action of a mental health matter to one involving a failure to correct a condition, after the cause began and had proceeded well into the process. The matter began when Mother became mentally ill and proceeded to an adjudication of deprivation of the child on that basis until the first, and then amended, petition to terminate her parental rights was filed utilizing a ground for termination only incidently related to the reason for the original adjudication. Extended foster care, the State's second ground for termination, also arose as a consequence of and out of Mother's original mental health problems.

T13 Therefore, the standard of review here requires this Court to conduct a thorough review of the record in light of the elements to be proven. This Court, in conformity with this standard, has examined the evidence to ascertain whether it is competent, that is, whether all of the evidence for or all of the evidence against a requirement is relevant and material to the issue. In a parental termination case, the State has the burden of proof to show by clear and convincing evidence that grounds exist for termination. In re C.G., 1981 OK 131, ¶17, 637 P.2d 66, 71. This Court also examined the competent evidence for and against the requirements using a "clear and convincing" standard in order to ascertain whether the State has met its burden.

114 In addition, Mother has challenged legal rulings made by the trial court. A pivotal issue here involves the selection of the correct ground by the State to pursue termination under the facts of the case. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

ANALYSIS AND REVIEW

Subsection 13 vis-&-vis Subsection 5

{15 Mother maintains that the State should have proceeded solely on allegations under subsection 183. Thus, Mother argues that the petition was insufficient as notice and that the jury instructions were broader than necessary because they included subsection 5 as a ground for termination of her parental rights. Mother concludes by asserting that subsection 18 is a special and specific statute and thus controls over any broader, or general, provisions pertaining to termination.

116 This Court holds that the trial court erred by instructing the jury on subsection 5. There are two reasons for this ruling. First, the uncorrected "condition" referenced in subsection 5 necessarily means a condition the nature of which is subject to correction by the parent's efforts. It is well recognized that mental illness is a condition entirely distinct from other conditions leading to a deprived child status and may be caused by a number of factors, including organic deficiencies, not the fault of the person. Second, subsection 13 does qualify as a special statutory provision that prevails over the more general provision of subsection 5.

1 17 The judgment of termination of Mother's parental rights reached below must be reversed because the nature of the "condition" existing here is such that it is not correctable solely through the efforts of Mother. It would be patently unfair, if not also a violation of Substantative Due Process, to permit termination of the parental relationship for failure to correct a condition which cannot be remedied by the parent without medical, psychiatric, and psychological intervention. Moreover, the evidence here shows that Mother's failures to take medications and her denials that she has a problem are manifestations of the illness rather than culpable recalcitrance on her part.

118 Thus, this Court holds that subsection 5 "conditions" are those which the parent has the ability to correct and which do not include a propensity to fail correction of the condition as a component of or manifestation of the "condition." Subsection 13, as a special provision, deals with a different form of condition, one requiring medical, psychiatric, and psychological intervention, or a combination thereof, because the condition is essentially outside the control of the parent. Moreover, subsection 13 contemplates a person's inability to correct the condition because of language dealing with contingencies where the condition does not respond to treatment through no overt fault of the person and medical opinion concludes that the condition will not substantially improve. See In re R.S., 2002 OK CIV APP 90, 56 P.3d 381, where the Court drew the distinction between correctable "conditions" and a mental health "condition" as defined by statute. The facts of R.S. revealed that the parent had problems but those problems were not of the sort defined as a mental illness in the statute. Id., 2002 OK CIV APP at ¶13, 56 P.3d at 383. Therefore, the State could proceed under the "failure to correct conditions" criterion.

T19 The parties here agree that Mother suffers from mental illness of the nature contemplated by subsection 18. Her initial court commitment admission to mental health treatment at Western State Psychiat, ric Center (WSPC) occurred when she exhibited bizarre behavior and hallucinations. Her initial diagnosis was Substance Induced Psychotic Disorder With Hallucinations and Delusions and possible paranoid schizophrenia. Psychological testing then concluded that Mother presented symptoms of delusional disorder. She was found to be "disconnected from reality" and so far into her illness that she did not realize that she was in denial about her substance abuses.

20 However, at trial, the treating psychiatrist could not say that her symptoms were drug induced. He stated that the present diagnosis was paranoia schizophrenia and that it was manageable through treatment but did not state the form or intensity of treatment required. The psychiatrist also testified that denial of problems and failure to take medication are manifestations of the mental illness.

121 Here, the "condition" is mental illness. Mental illness was the basis for the deprived child adjudication and remained as Mother's problem to the time of trial,. This is the condition that must be corrected. In addition, the overwhelming evidence here shows that the alleged failure to correct the condition follows and flows directly from the condition itself.

122 The temptation to ask a rhetorical question is here likewise overwhelming: How is it possible in the State of Oklahoma that a governmental agency could seek to terminate a fundamental, constitutionally-protected relationship for failure to correct a mental condition when such failure is part of the mental condition itself? The answer is, of course, that it is not possible. The reason it is not possible is that Substantative Due Process of Law, separately from procedural safeguards, imposes the requirement that all government actions not be arbitrary; that the actions have a fair and reasonable impact on the life, liberty, and property of the person affected; and, that the means selected shall have a reasonable and substantial relation to the objective being sought. City of Edmond v. Wakefield, 1975 OK 96, ¶6, 537 P.2d 1211, 1213; Williams v. State ex rel. Dept. of Public Safety, 1990 OK CIV APP 27, ¶ 14, 791 P.2d 120, 124. Under this Court's construction, the statute does not violate this pro-seription.

123 This case began and was handled initially as a mental health problem and remained so through trial. However, sometime after the initiation of the case, the State then filed its initial petition, and then an amended one, seeking termination based upon subsection 5, failure to correct the condition leading to the deprived child adjudication without consideration of the Mother's inability to correct her mental condition. The reason for this action to separate the Mother and child by termination is not a part of the record. However, the State concedes that a case for termination cannot be made on subsection 13 grounds of failure to respond to treatment, or mental illness that will not substantially improve after treatment. Moreover, subsection 5 is not available under the facts of this case.

24 Mother then concludes by correctly arguing that subsection 18 is a special provision and specific statute and thus controls over any broader, or general, provisions pertaining to termination governing the facts here. In re L.S., 1990 OK CIV APP 94, ¶ 21, 805 P.2d 120, 125. The State disclaims subsection 13 by its argument that a case under that subsection could not be proven, but this misses the point.

[25 The statutes did not address mental health as it related to parental rights and children prior to 1987, when subsection 13 was enacted. 1987 Okla. Sess. Laws c. 95, § 1; In re LS., 1990 OK CIV APP 94 at ¶18, 805 P.2d at 124. The enactment of subsection 5 did not add to subsection 18, but rather added a new subsection and specially provided for certain, defined mental health conditions. After addition of subsection 5 and other subsections not relevant here, the entire statutory section was reenacted.

126 Consideration must be given to the statute as a whole without isolating words, phrases, or other parts. McNeill v. City of Tulsa, 1998 OK 2, ¶ 11, 953 P.2d 329, 332. Statutes are given a construction which is reasonable and which does not led to internal inconsistencies. Lancaster v. State ex rel. Harrod, 1967 OK 84, ¶6, 426 P.2d 714, 716. In this instance, it is possible that subsection 5 and subsection 13 each might come into play where a child has been adjudicated as a deprived child. Moreover, the "condition" leading to deprivation in a given case may be, as here, a defined mental condition, or, as in other cases some other cause, such as abuse or neglect.

127 Before a statute may be termed "specific" it must clearly include the subject of the general statute and provide a different rule, that is, they must be in conflict as to the identical subject matter. Tulsa County Deputy v. Board of County Commissioners, 1998 OK 44, ¶13, 959 P.2d 979, 981; City of Tulsa v. Smittle, 1985 OK 37, ¶17, 702 P.2d 367, 371.

128 The case of Carter v. City of Oklahoma City, 1993 OK 134, 862 P.2d 77, provides an example of the "clearly included" requirement. Carter brought an inverse condemnation suit and prevailed. Carter demanded a jury trial after the commissioners appraised the property, but the jury awarded an amount lower than the commissioners' assessment. Carter requested and obtained attorney fees under 27 0.8.1991, § 12. The trial court ruled that Section 12 controlled over 66 0.98.1991, § 55, in inverse condemnation cases and the Supreme Court affirmed.

129 On appeal, the City argued without success that the condemnation statute in Title 66 applied, together with its proviso that the landowner had to prevail by more than ten percent over the commissioners' award. The City's argument pointed out that the statutes contained similar wording. However, the Supreme Court rejected the argument, noting that provisions in Title 66 and other statutes leading to utilization of Title 66, referred to condemnors instituting a condemnation action and not to inverse condemnation matters. Thus, because Section 12 clearly included the attorney fee subject matter, inverse condemnation, it controlled over the general condemnation statute.

T80 Here, Section 7006-1.1 begins with the provision that "a court may terminate the rights of a parent to a child in the following situations" and then lists the fifteen instances where findings may result in termination when a child has been determined to be deprived. The Legislature singled out the mental health "condition" for special treatment in subsection.18, and has thereby created a special provision controlling over the more general provision of subsection 5. Both subsections deal with the same subject-matter-termination of parental rights involving children who are deprived. However, subsection 18 deals with a special situation and condition.

181 A well-settled rule of statutory construction provides that where a matter is addressed by two statutes, one specific and one general, the specific statute controls. Hall v. Globe Life and Acc. Ins. Co. of Okla., 1999 OK 89, 998 P.2d 603. This Court finds no legal distinction between a case where the issue arises as between two discrete statutes and a case, as here, where the issue arises as to subsections within a single statutory seetion. Thus, under the facts here it was error to allow the State to proceed under subsection 5 and to instruct the jury on that ground.

Subsection 13 vis-&-vis Subsection 15

1832 Subsection 15 antedates subsection 18, as it came into the statute in 1998. 1998 Okla. Sess. Laws, c. 414 § 20. On its face, subsection 15 does not appear to require some form of act, or default of performance, in order to be utilized. However, the wording of the subsection discloses that, unlike the special provisions of Section 7006-1.6, the use of subsection 15 does not create a mandatory requirement for termination. In re T.M., 2000 OK CIV APP 65, ¶ 15, 6 P.3d 1087, 1093. This means that extended foster care per se does not create a stand alone basis for termination of parental rights.

133 Thus, a parent facing termination on subsection 15 grounds is, nevertheless, entitled to receive all constitutional and procedural rights and to present all defenses available. In re M.C., 1999 OK CIV APP 128, 993 P.2d 137. Included within the parent's rights is the right to defend the consequences of a failure to correct a condition. See In re M.J. & J.J., 2000 OK CIV APP 75, ¶¶ 11-12, 8 P.3d 936, 939. In the context of extended foster care, the evidence must also show that the parent bears the culpable responsibility for the fact that the child has been in foster care for the requisite period and that the parent is not the subject of an uncorrected condition which is by its nature beyond the parent's power to correct.

[ 34 Failure to allow for examination of the conditions causing the child to be placed in foster care for an extended period could lead to absurd results. Posit a young married couple with a small child and no other family or relatives. - Father is inducted into military service and is taken prisoner during combat. Mother dies from illness or accident, leaving the child without parental care. The child would properly be placed in foster care, but if Father's "condition" of captivity extended beyond twenty-two months, and fifteen of those months included foster care, then his parental rights could be terminated simply because of the extended foster care but for a rational interpretation of the statute requiring examination of the underlying reason, or reasons, for instituting foster care. Such termination would not pass constitutional muster, as should not those of the nature here reviewed.

€35 The Court, when construing a statute, will presume that the Legislature did not intend an absurd or wholly unreasonable result. Therefore, the Court's construction of a statute avoids such result whenever such construction will not violate legislative intent. In re Bonny Down Edwards Irrevocable Trust, 1998 OK CIV APP 144, ¶13, 966 P.2d 810, 814.

136 Therefore, the judgment of the trial court is reversed and the cause is remanded for a new trial in accordance with this Opinion.

T37 REVERSED AND REMANDED FOR A NEW TRIAL.

COLBERT, P.J., concurs, and GOODMAN, J., concurs in result.

GOODMAN, J.,

concurring in result.

T1 The issue of the appellate standard of review was established by the Oklahoma Supreme Court in In re S.B.C, 2002 OK 83, 64 P.3d 1080 (2002), wherein the court stated that "appellate review of parental-status-termination decisions must be based upon the clear-and-convineing - evidence - standard." Id., 2002 OK 83 at ¶4, 64 P.3d at 1081. The Oklahoma Supreme Court remanded S8.8.C. to this court "for that court's reconsideration by applying the standard of review standard consistent - with today's pronouncement ...."-a directive with which this court has since complied. Id., 2002 OK 83, ¶ 8, 64 P.3d at 1082. The standard of review mandated by S.B.C. has been recognized and applied by other divisions of the Oklahoma Court of Civil Appeals. See, eg., In re C.R., 2003 OK CIV APP 14, 63 P.3d 573; In re J.K., 2003 OK CIV APP 2, - P.3d --; In re T.M., 2003 OK CIV APP 1, -- P.3d --. Therefore, I do not see the benefit of this court engaging in a lengthy analysis of a legal principle already articulated by the Oklahoma Supreme Court and implemented by the Oklahoma Court of Civil Appeals.

1 2 In any event, because an error of law of fundamental magnitude occurred below, I do not believe that the standard of appellate review is implicated. I would follow the analysis established in In re B.T.N., No. 96,960 (OK CIV APP Div. II, May 21, 2002), wherein we stated:

In In re L.S., 1990 OK CIV APP 94, 805 P.2d 120, this court held that when the legislature enacted (A)(18) and its predecessor statute, it did so to afford additional due process protections to persons who were mentally ill or impaired. We held that compliance with any treatment plan or other requirement imposed upon such a parent must be viewed in light of that parent's mental disability and that parent's ability to comprehend the requirements placed upon her. In effect, the legislature enacted additional safeguards to ensure that parental rights were not terminated solely because a parent was mentally ill, but only in those cases where a causal link between the untreated illness and harm to the child could be shown. In this case the record is replete with medical records and test results which clearly show that Mother suffers from a variety of treatable mental illnesses. While most of these seem to be controlled by medication, nevertheless we must hold that fundamental error occurred when the trial court refused to instruct the jury on the issue of Mother's mental health.
We hold that State should have proceeded under (A)(18) because Mother's history of mental instability is well documented. Indeed, it is the unstable nature of Mother's mental condition that led to Child being placed in foster care in the first instance, and ultimately led to the determination that Child was deprived in the second instance. In many respects, under the facts of this case, the grounds for termination pled by State, ie. (A)(5) and (A)(15), would not exist but for the mental instability of Mother. Such mental instability may serve as a basis for termination, if it presents harm to Child, as addressed in (A)(13). Mother attempted to obtain an instruction to the jury to that effect, but said motion was denied. Fundamental error thus occurred.

I would limit our review to that core issue, and simply hold that the trial court committed a fundamental error of law in refusing to instruct the jury pursuant to (A)(18).

      . District Court Record, p. 20. A separate mental health case also involved Mother.

      . Seen. 9.

      . The statutes have since been amended. Subsections 5, 13, and 15, in effect for this proceeding, read:
      A. Pursuant to the provisions of the Oklahoma Children's Code, the finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations. The paramount consideration in proceedings concerning termination of parental rights shall be the health, safety and best interests of the child:
      5. A finding that:
      a. the child has been adjudicated to be deprived, and
      b. such condition is caused by or contributed to by acts or omissions of the parent, and
      c. - termination of parental rights is in the best interests of the child, and
      d. the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by Section ....
      13 ~A finding that all of the following exist:
      a. the child has been adjudicated deprived, and
      b. custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member, and
      c. the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by Section 6-201 of Title 43A of the Oklahoma Statutes, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities, and
      d. the continuation of parental rights would result in harm or threatened harm to the child, and
      e. the mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve, and
      f. - termination of parental rights is in the best interests of the child.
      Provided, a finding that a parent has a mental illness or mental deficiency shall not in and of itself deprive the parent of his or her parental rights.
      15. A child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22)
      months. For purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of:
      a. the adjudication date, or
      b. the date that is sixty (60) days after the date on which the child is removed from the home.

      . Mother duly preserved objections to the instructions. 12 0.$.2001, § 578; Trial Tr. Vol. II, pp. 438-39.

      . Competent evidence has been defined by the Oklahoma Supreme Court as that which is relevant and material to the issue to be determined. Joseph A. Coy Co. v. Younger, 1943 OK 160, 136 P.2d 890, 891-92. Evidence remains "competent" under this definition even though it may be conflicting, contradictory, or lack a degree of credibility. Id. at 892; Cox v. B.F. Goodrich Co., 1989 OK CIV APP 41, ¶7, 788 P.2d 967, 968.

      . First, in all of the cases not involving purely questions of law, the appellate court did in fact review the evidence for sufficiency rather than mere existence of competent evidence. An example is In re T.R.W., 1985 OK 99 at ¶17, 722 P.2d at 1201, where the Court, after examination of the evidence, including its various interpretations, found it to be sufficient to support the verdict. Similarly, the Court in In re J.M., S.F. and J.A., 1998 OK CIV APP 141, ¶4, 964 P.2d 972, 973, also reviewed the evidence to find that it clearly supported the outcome. Second, the dissenting Opinions in In re T.HLL. and in In re Christopher H. argued for review based upon whether the State met its burden by "clear and convincing evidence." Thus, the Court in each case was unanimous on the point that the appellate court would weigh the evidence but disagreed as to the criterion involved.

      . The Court was reviewing New York's scheme, but the characterizations have universal application.

      . The State explains, as stated in its Brief, that it could not prove a case under subsection 13 because Mother's condition could improve with treatment.

      . In addition, this petition, even as amended, lacks clarity as well as allegations concerning the Indian Child Welfare Acts and the Uniform Child Welfare Act. An example of the former is found in paragraph 2 where the allegations read grammatically that the child has failed to do those things required of the parent. In addition, the language "termination is being sought under 10 O.S. 7006-1.1 et seq.," leaves open which of the statutes' subsections the State intends to proceed under.

      . Seen. 4.

      . This conclusion conforms to the Oklahoma Supreme Court's decision in In re S.B.C., 2002 OK 83, 64 P.3d 1080, which has not been released for publication in the present case reports. It is thus subject to revision or withdrawal.

      . State's Trial Ex. 4.

      . Id. at 33-34. Moreover, an in depth evaluation of this observation would assist in explaining why Mother was remiss in taking medication and attendance at AA meetings.

      . Transcript, pp. 364, 370-71.

      . Id. at 371.

      . Ordinarily the "specific" versus the "general" issue arises when comparing two different statutes. Some courts have addressed the issue when the issue arises within a statute. See County Bd. of Ed. of Daviess Co. v. Fiscal Court of Daviess Co., 221 Ky. 106, 298 S.W. 185 (1927). Here, the issue is presented as a conflict between subsections.

      . Thus, the State says that subsection 13(e)'s requirement that competent medical evidence show that the mental condition will not substantially improve could not be proven, mainly because the evidence is to the contrary. Yet, this is the very condition used by the State and DHS to initiate these proceedings.

      . The section of the statute containing subsection 5 has since been renumbered.

      . Also in 1998, the Legislature enacted special provisions regarding children in extended period foster care up to November 1997 and provided for expedited termination of parental rights as to that class of children. 1998 Okla. Sess. Laws, c. 421 § 31; 10 0.$.2001, § 7006-1.6.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2003 UT App 70
    TWN, INC., a Utah corporation, Plaintiff and Appellee, v. Uwe MICHEL, an individual; and Ullrich Michel, an individual, Defendants and Appellants.
    No. 20010999-CA.
    Court of Appeals of Utah.
    March 13, 2003.
    Bruce J. Nelson, Nelson, Rasmussen & Christensen, Salt Lake City, for Appellants.
    Vincent C. Rampton and Ross I. Romero, Jones, Waldo, Holbrook & McDonough, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and GREENWOOD, and ORME, JJ.
   OPINION

ORME, Judge:

1 This appeal involves an action to quiet title to an eighty-three acre parcel of land that lies along the border between Utah County and Salt Lake County. It turns on the sudden appearance in a chain of title of the term "trustee." We reverse the trial court's grant of summary judgment and remand.

BACKGROUND

2 As of 1984, Zions Bank was the record owner of the parcel at issue in this case. However, Zions Bank became delinquent in paying its property taxes on the land, so Utah County sold the parcel at a tax sale in 1984. Richard Christenson purchased the property at the sale, and accordingly he received title to the parcel. The grantee on the deed was listed as "Richard Christen-son."

[ 3 In 1985, without any intervening transaction appearing of record, Mr. Christenson executed a quitclaim deed to the parcel to Zions Bank, which reimbursed him the amount he paid at the tax sale. The grantor was identified on that deed as "Richard A. Christenson, Trustee." Zions Bank sold the land to Franklin Financial, a corporation that was wholly owned by Mr. Christenson, in 1986. Zions Bank financed this sale, and when Franklin Financial defaulted on its mortgage payments, Zions Bank held a foreclosure sale on the land. Defendants were the high bidders at the foreclosure sale, which took place in 19983, and received an appropriate deed in due course.

1 4 However, in 1998, Mr. Christenson executed another quitelaim deed for the parcel, this time to Plaintiff. The grantor named on this deed was "Richard A. Christenson."

5 In 1999, Plaintiff brought this action to quiet title on the parcel. Both sides moved for summary judgment, and the trial court granted it in Plaintiffs favor. The trial court's order does not explain the rationale underlying its decision. However, the parties agree that its rationale was that because the 1985 deed to Zions Bank was signed "Richard A. Christenson, Trustee" (emphasis added), the deed did not convey Mr. Chris-tenson's personal interest in the property, which was the interest he had acquired at the 1984 tax sale. Rather, as a matter of law the 1985 deed conveyed only whatever interest Mr. Christenson held on behalf of an unnamed trust, which was apparently nothing. Defendants now appeal the grant of summary judgment.

ISSUE AND STANDARD OF REVIEW

16 "Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Because entitlement to summary judgment is a question of law, we accord no deference to the trial court's resolution of the legal issues presented." Ward v. Intermountain Farmers Ass'n, 907 P.2d 264, 266 (Utah 1995) (citations omitted). Thus, "(olur inquiry on review of a summary judgment is similar to the inquiry conducted by the trial court; are there material issues of fact to be litigated, and did the trial court correctly apply the governing law?" Spor v. Crested Butte Silver Mining, Inc., 740 P.2d 1304, 1308 (Utah 1987).

17 To determine whether "the trial court correctly appl{ied] the governing law" in this case, id., we must answer the following question: Does a grantor's unexplained placing of the word "trustee" next to his or her name on a real property deed result, as a matter of law, in a conveyance of only a trust interest? As explained below, we answer that question in the negative.

ANALYSIS

T8 Although Defendants argue in general terms that the unexplained appearance of the word "trustee" creates ambiguity on the face of the deed from Mr. Christenson to Zions Bank, the thrust of their argument brings them within the doctrine known as "descriptio personae." This term is defined as "the use of a word or phrase merely to identify or point out the person intended and not as an intimation that the language in connection with which it occurs is to apply to him only in the technical character which might appear to be indicated by the word." Dann v. Team Bank, 788 S.W.2d 182, 184 (Tex.App.1990). See also Sebastian Int'l, Inc. v. Peck, 195 Cal.App.3d 803, 240 Cal. Rptr. 911, 913 (1987) (" ¢ "Where a writing in the nature of a contract is signed by. a person, and contains apt words to bind him personally, the fact that to such signature is added such words as 'trustee,' 'agent,' 'treasurer, 'president,' and the like does not change the character of the person so signing, but is considered as merely descriptive of him." ' ") (quoting Ricker v. B-W Acceptance Corp., 349 F.2d 892, 894 (10th Cir.1965) (quoting Ellis v. Stone, 21 N.M. 730, 158 P. 480, 483 (1916))); Klutts Resort Realty, Inc. v. Down'Round Dev. Corp., 268 S.C. 80, 232 S.E.2d 20, 24 (1977) (defining "descriptio personae" as "a term descriptive of the person rather than the relationship in which he signs the agreement"); 14 Richard R. Powell, Powell on Real Property § 81A.04[1][allivI[E], at 81A-42 (Michael Allan Wolf ed., 2002) (de-seribing "deseriptio personae" as "[clertain terms sometimes added to a person's name [that] are merely descriptive matter intended to clarify the identity of the person, but ... their use or non-use should generally play no part in the validity of the conveyance").

T 9 The Utah Supreme Court validated the descriptio personae concept for Utah courts in Boise Cascade Corp. v. Stonewood Development Corp., 655 P.2d 668 (Utah 1982). In that case, a Stonewood corporate officer who had signed a loan guaranty agreement as "Viee President" sought to absolve himself of personal liability on the guaranty agreement. He claimed that since he had written the words "Vice President" next to his signature on the agreement, his signature was in a representative capacity and bound only the corporation and not him personally. The trial court disagreed and granted summary judgment to the creditor, and the Utah Supreme Court affirmed. The Court held:

The "V-Preg." following [the officer's] signature on the agreement is a matter of description (desecriptio personae), not of capacity to bind a different principal obli-gor. ... Stonewood admittedly was indebted to Plaintiff. [The officer] admittedly guaranteed its payment, and there are no counter-affidavits that lend any doubt as to the fact of personal, not representative, Hability.

Id. at 669. Accord Appliance & Heating Supply, Inc. v. Telaroli, 682 P.2d 867, 868 & n. 1 (Utah 1984). Utah courts have held similarly on other occasions as well. Seq, e.g., Proctor v. Insurance Co., 714 P.2d 1156, 1158 (Utah 1986) (holding that an accident insurance company properly paid decedent's second wife rather than his first wife because even though the second marriage was illegal, the " 'designation [in the insurance policy] as the wife of insured is descriptive only, and it is immaterial whether or not she is ... his lawful wife' ") (quoting 46 C.J.S. Insurance § 1160 (1946), which is updated with slightly different language at 46A C.J.S. Insurance § 1419 (1998)); Travelers Ins. Co. v. Lewis, 531 P.2d 484, 485-86 (Utah 1975) (holding that a father's divorce-decree mandate to name his "three minor children" as contingent beneficiaries in a life insurance policy did not expire when the children reached adulthood because the "minor children" designation "was merely descriptive of their status at the time [and] was not meant to make them contingent beneficiaries only during their minority"); Southwick v. Leone (In re Estate of Leone), 860 P.2d 973, 976 (Utah Ct.App.1993) (holding that language identifying the beneficiary of a pay-on-death account as the "spouse of the protected person" did not create a condition precedent that the spouse remain married; rather, the phrase was "merely a non-restrictive adjective phrase meant to identify the individual").

10 It has long been recognized that the concept of descriptio personae applies to the identification of parties on real property deeds. See, eg., Molina v. Ramirez, 15 Ariz. 249, 138 P. 17, 19 (1914) ("The description of the grantor as the 'administratrix[ J ... may be treated as desecriptio personam, and of no effect, She acted, so far as her interest in the property was concerned, in her individual capacity when she executed the deed."); Hodgson v. Dorsey, 280 Iowa 730, 298 N.W. 895, 896-98 (Iowa 1941) (holding that the word "trustee" next to a grantee's name on a deed was descriptio personae and citing various cases that held similarly); Owen v. Ellis, 64 Mo. 77, 88 (1876) (holding that the word "executrix" appearing next to the grantor's name was "mere descriptio personae, mere surplusage, and the conveyance would operate as well without [it] as with [it]").

T11 As for the question of whether the unexplained placement of the word "trustee" on a real property deed may rightly be categorized as descriptio personae, almost every court that has addressed this issue has addressed it in the context of the word appearing next to the grantee's name, not the grantor's name as in our case. Seq, e.g., Hodgson, 298 N.W. at 895; Gammarino v. Hamilton County Bd. of Revision, 84 Ohio St.3d 155, 702 N.E.2d 415, 416 (1998) (per curiam). Therefore, the question that most courts have confronted is whether the deed created a trust and vested title in the grantee only as a trustee or whether it vested title in the granteé personally. Such courts have almost universally held that the word "trustee," absent other cireumstances, does not create a trust, but rather constitutes descrip-tio personae and conveys title to the grantee personally. See, eg., Hodgson, 298 N.W. at 896-98; Gammarino, 702 N.E.2d at 417-18 {relying partially on state statutory law but also on case law). See also Powell, supra, § 81A.O4{1][ allivI[F], at 81A-42 ("Most often the incidental and unexplained use of such terms as 'trustee' or 'agent' is ... considered to be merely descriptio personae and is insufficient to establish or create a trust or agency."). - But see Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 948 (Tex.App.1981) (holding that a deed created a trust, in part because the property was conveyed to a named trustee but also because multiple extraneous factors so suggested).

112 The case at hand is slightly different from the opinions just cited because in our case it is the grantor, not the grantee, who is designated as "trustee." However, this distinction is immaterial We see no logic in categorizing as descriptio personae the word "trustee" if it follows a grantee's name but giving the word enforceable meaning if it follows a grantor's name. Regardless of whose name the word follows, the principle must be the same: The unexplained use of the word "trustee" on a real property deed does not, absent other cireumstances suggesting the creation or existence of a trust, create a trust or implicate only a trust interest. Therefore, in both contexts, the deed should be read and interpreted as if the word "trustee" were not there.

13 Florida's Fifth District Court of Appeal, the only court of which we are aware that has recently faced the precise issue that we face today, came to the same conclusion. In Terry v. Zaffran, 483 So.2d 526 (Fla.Dist.Ct.App.), review denied, 492 So.2d 1336 (Fla.1986), a property owner named Michael A. Taylor conveyed a parcel of land, signing the deed "Michael A. Taylor, as trustee." Id. at 527. Title to the parcel followed a chain subsequent to that deed, and the land was eventually mortgaged to appellant. Some months later, appellee obtained a judgment against Taylor. Appellee then "became the grantee of a sheriff's deed issued pursuant to a levy on the land to satisfy the judgment." Id. When appellee brought an action against appellant, the mortgagee, to quiet title to the property, the trial court ruled in appellee's favor, holding that since "Michael A. Taylor held title as an individual, the deed from him 'as trustee' was ineffectual to convey title to the [first purchaser]." Id. Thus, the trial court held that Taylor's personal interest in the property remained with him until appel-lee took it by virtue of the sheriff's deed. See id. Predictably, the appellate court reversed and held as follows:

The addition of the words "as trustee" to the name of the grantor Michael A. Taylor was merely "descriptio personae" of the person of the grantor and, as such, did not affect the validity of the conveyance of the interest held by the grantor nor did it limit the estate conveyed. In Florida today those words alone do not even charge a subsequent good faith purchaser or lender with the duty to inquire as to the rights of undisclosed trust beneficiaries and can be safely disregarded as surplusage. Accordingly, Michael A. Taylor having effectively conveyed all of his interest in the land in question prior to the date of the judgment against him, that judgment never became a lien on the land previously owned and conveyed by the judgment debtor. Thus, the sheriff's deed was invalid and had no effect on the lien interest held by appellant as mortgagee.

Id. (footnote omitted).

114 Finally, we note that Utah Code Ann. § 75-7-402(5) (1998) authorizes a trustee to dispose of trust property "in the name of the trustee as trustee." In fact, that is exactly what Plaintiff claims occurred in the present case. However, we hold that a trustee's intent to do so must be made clearer than simply placing the unadorned word "trustee" after his or her name. A trustee-grantor should include on the deed such language as "in my capacity as trustee for the XYZ trust." Alternatively, as the Utah Supreme Court suggested in Boise Cascade Corp., a party may resort to extrinsic evidence to show that a trust was, in fact, intended. See 655 P.2d at 669 (suggesting that a counter-affidavit could have rebutted the presumption of descriptio personae and shown that the descriptive language was intended to bind the person in his representative capacity rather than in his individual capacity). Otherwise, the presumption of descriptio personae will apply, and the deed will operate as if the word "trustee" were not there.

CONCLUSION

15 We hold that the word "trustee" appearing next to Mr. Christenson's name on the 1985 deed to Zions Bank was not sufficient, by itself, to restrict the conveyance only to whatever interest Mr. Christenson held in trust. Therefore, we reverse the trial court's grant of summary judgment and remand this case to the trial court for further proceedings consistent with this opinion.

116 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . Utah County sold the entire parcel, even the portion in Salt Lake County, because at the time of the sale, it was thought the entire parcel was within Utah County. Not until approximately 1995, when a new survey was conducted, was it discovered that part of the parcel was actually in Salt Lake County.

      . At oral argument both sides agreed that Mr. Christenson likely did not actually hold any interest in the property on behalf of a trust. No explanation was offered as to why Mr. Christen-son would cause a corporation he owned to acquire title to the property from Zions Bank for a considerable sum if he believed Zions had actually bought nothing from him and thus bad nothing to convey to the corporation.

      . Lest the reader be tempted to view this as a "notice" case, wherein a subsequent bona fide purchaser for value takes title if they record their deed first, see Utah Code Ann. § 57-3~103 (2000), we clarify that such an issue is not present in this case. The disagreement in this case concerns what interest the 1985 deed conveyed-Mr. Christenson's entire interest or only his "trustee" interest. No one disputes that Defendants, who are the successors in interest to the first purchaser (Zions Bank) and who properly recorded their deed, are the rightful owners of - whatever interest the 1985 deed conveyed.

      . Although this subsection was not enacted until 1992, see Utah Code Ann. § 75-7-402 amendment notes (1993), it is relevant to our decision today regarding the 1985 deed that Mr. Christen-son conveyed to Zions Bank. The subsection specifies that it "applies to a trustee's exercise of trust powers both prior to and after the effective date of this subsection." Utah Code Ann. § 75-7-402(5) (1993).

      . Utah Code Ann. § 75-7-409(2) (Supp.2002) provides: "If the terms of the trust are not made public [in a grant of real property to a person as trustee}, a conveyance from the trustee is absolute in favor of purchasers for value who take the property without notice of the terms of the trust." - That statute is not directly applicable to the present case because this case does not involve the situation anticipated by the statute, Le., that "title to real property is granted to a person as trustee." Id. § 75-7-409(1). Even so, our decision today is consistent with the statute's spirit: When parties wish to convey a trust interest, as opposed to a personal interest, they must be explicit and forthcoming about this intention if they hope to attain it.

      . This phrase is intended only as an example of language that would be effective. We have no intention of resurrecting the long-deceased requirement that certain, precise phrases must appear on a deed to convey a particular interest. See Utah Code Ann. § 57-1-2 (2000) ('The term 'heirs,' or other technical words of inheritance or succession, are not requisite to transfer a fee in real estate."); Haynes v. Hunt, 96 Utah 348, 354, 85 P.2d 861, 864 (1939) ("We are not interested in the use of terms but we are in concepts, relationships and legal rights which for convenience are often described by the use of legal names or expressions.").

      . In addition to their principal argument in this case, Defendants argue that we should deem Utah County's 1984 tax sale void ab initio because, as it was discovered in about 1995, part of the parcel is in Salt Lake County. See note 1, supra. - Given our decision, we need not address this argument.


text:
    The PEOPLE of the State of Colorado, Complainant, v. Joseph F. MUTO, Respondent.
    No. 02PDJ077.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    April 9, 2003.
    Opinion by Presiding Disciplinary Judge, ROGER L. KEITHLEY, and Hearing Board Members MARILYN J. DAVID, and E. STEVEN EZELL, both members of the bar.
   REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on February 183, 2008, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Marilyn J. David, and E. Steven Ezell, both members of the bar. Fredrick J. Kraus, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Joseph F. Muto, the respondent ("Muto"), appeared by telephone.

The People filed the Complaint in this matter on September 20, 2002. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Attempted Service on November 5, 2002, indicating that the Citation and Complaint were sent to both of Muto's last known addresses. The Citation and Complaint sent via certified mail were returned to the Office of Attorney Regulation Counsel unclaimed, and the documents sent via regular mail were not returned. Muto failed to file an Answer or otherwise respond to the Complaint.

Upon the People's motion, by order dated December 5, 2002, the PDJ granted default as to the facts set forth in the Complaint, which were deemed admitted, and as to the violation of the claims set forth therein, which were deemed established. Muto did not respond to the motion for default. Muto was provided notice of the entry of default against him.

At the Sanctions Hearing, the People's exhibits 1 through 3 were admitted into evidence. The Hearing Board considered the exhibits, the facts admitted by the entry of default, and the People's argument, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Joseph F. Muto has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 31, 1994, and is registered upon the official records of the Supreme Court, attorney registration number 24164. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

On March 19, 2002, the New York Supreme Court, Appellate Division, issued a per curiam decision affirming the decision of the Referee and the Hearing Panel of the Departmental Disciplinary Committee for the First Judicial Department in the county of New York disbarring Muto from the practice of law in the State of New York. A copy of that decision is attached hereto as exhibit A.

IL - CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

Under claim I of the Complaint the People seek imposition of the same discipline under the reciprocal discipline provisions of C.RCP. 251.21. The same discipline that was imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. People v. Calder, 897 P.2d 831, 832 (1995).

C.R.C.P. 251.21(d) provides in part:

At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:
(1) The procedure followed in the foreign Jurisdiction did not comport with requirements of due process of law;
(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;
(8) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or
(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

Under the provisions of C.R.C.P. 251.21(d), if the respondent attorney seeks to challenge the validity of the disciplinary order entered by the foreign jurisdiction, the attorney must file with the PDJ an Answer and a full copy of the record of the disciplinary proceedings which resulted in the imposition of that disciplinary order within twenty days after service of the Complaint,. Muto neither answered the Complaint nor filed the requisite documentation to enable him to challenge the New York disbarment order. Accordingly, Muto is foreclosed from challenging the validity of the New York disbarment order.

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline conclusively establishes the misconduct for purposes of attorney disciplinary proceedings in Colorado. - See C.R.C.P. 251.2l(a). The disbarment order issued by the New York Supreme Court Appellate Division constitutes such a final adjudication.

Having reviewed the New York Supreme Court Appellate Division's order of disbarment, the Hearing Board finds that none of the exceptions found in C.R.C.P. 251.21(d) are applicable and it is therefore bound to impose the same discipline as imposed by New York.

III, ORDER

It is therefore ORDERED:

1. JOSEPH FMUTO, attorney registration 24164, is DISBARRED from the practice of law in the State of Colorado effective thirty-one days from the date of this order, and his name shall be stricken from the roll of attorneys licensed to practice law in this State.
2. Muto is Ordered to pay the costs of these proceedings. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Muto shall have ten (10) days thereafter to submit a response to the Statement of Costs.

EXHIBIT A

SUPREME COURT, APPELLATE DIVISION

First Judicial Department, January 2002

Eugene Nardelli, Justice Presiding

David B. Saxe

Joseph P. Sullivan

Richard W. Wallach

David Friedman, Justices

-- X

In the Matter of Joseph F. Muto (admitted as Joseph Francis Muto), an attorney and counselor-at-law:

Departmental Disciplinary Committee for the First Judicial Department, Petitioner,

Joseph F. Muto, Esq., Respondent.

M-6977

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, as Joseph Francis Muto, was admitted to the Bar at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on January 27, 1987. By an unpublished order of this Court entered on February 7, 2001 (M 762) a Referee was appointed to conduct a hearing and file a report on formal charges against respondent.

Sherry K. Cohen, of counsel (Thomas J. Ca-hill, Chief Counsel) for petitioner.

Respondent, pro se.

Motion No. 6977-January 29, 2002

In the Matter of Joseph F. Muto, An Attorney

PER CURIAM

Respondent Joseph F. Muto was admitted to the practice of law in the State of New York by the Third Judicial Department on January 27, 1987, as Joseph Francis Muto. Respondent is also admitted to practice in Colorado. At all times relevant to the charges here at issue, respondent maintained an office for the practice of law within the First Judicial Department.

On or about February 27, 2001, petitioner Departmental _ Disciplinary _ Committee ("DDC") served respondent with a Notice and Statement of Charges charging respondent with 48 counts of professional misconduct in connection with his immigration law practice. Thirty-six of the charges relate to respondent's alleged neglect of matters in which he represented 17 clients in proceedings before the United States Immigration Court. The remaining charges are based on respondent's alleged violations of trust account rules in connection with two IOLA accounts, and his alleged failure to comply with the address reporting requirements of the OCA. It is charged that these alleged acts of respondent constituted violations of several Disciplinary Rules ("DR") of the New York Code of Professional Responsibility, to wit: DR 1-102(A)(4), (5) and (T) (conduct involving dishonesty, fraud, deceit or misrepresentation, prejudicial (sic) to the administration of justice, and adversely reflecting on one's fitness to practice law); DR 3-101(A) (aiding the unauthorized practice of law); DR 6-101(A)(@2) and (8) (handling a legal matter without adequate preparation under the cireumstances and neglect of a legal matter); DR 7-101(A)(1) and (8) (failing to seek a client's lawful objectives and intentionally prejudicing or damaging a client during the course of representation); DR 7-106(A) (disregarding a ruling of a tribunal); and DR 9-102(A), (B), (C)(4), (D), (E), (1), and (J) (improper commingling of trust funds; improper maintenance of a trust account; failing to promptly deliver property a client is entitled to receive; failing to keep proper bookkeeping records and to produce such records as required by law; writing a check payable to "cash" from an IOLA account). Respondent filed an answer, dated March 28, 2001, denying all charges.

In June 2001, seven days of hearings were held before Referee John Horan, Esq. The DDC staff called 12 witnesses. Respondent, who appeared pro se at the hearing, testified on his own behalf. The Referee, who credited testimony of the DDC witnesses and discredited most of respondent's testimony, sustained each of the 48 charges and recommended the sanction of disbarment. A Hearing Panel of the DDC heard oral argument on November 8, 2001, and subsequently issued a report, dated November 19, 2001, unanimously confirming the Referee's findings of fact and conclusions of law, and concurring in the Referee's recommendation that respondent be disbarred. The DDC now moves for an order pursuant to NYCRR § 608.4(d), confirming the findings of fact and conclusions of law of the Referee and the Hearing Panel, and imposing the sanction of disbarment.

After reviewing the record, we agree that all 48 charges against respondent were properly sustained, and that the sanction of disbarment should be imposed. Since 1997, respondent has purported to specialize in representing illegal immigrants, chiefly from China, who seek political asylum in the United States. Through the testimony of several of respondent's former clients and attorneys familiar with these matters, the DDC staff showed that these immigrants are brought into the United States by a series of middlemen known as "snakeheads," who hand the immigrants over to an "agency" when they reach their destination in this country. The immigrant, lacking any knowledge of either the English language or the American legal system, then becomes completely dependent on his "agency," which provides him with a job, a place to sleep, translators, and legal representation in immigration matters. The non-lawyer "agency" generally performs the actual legal work, and retains an attorney to front for it in the Immigration Court. An attorney retained by an "agency" to represent an illegal immigrant client generally has little or no contact with the client, exercises no control over the case, and serves at the pleasure of the "agency," which pays his fee. The Referee concluded that respondent lent himself to this "insidious system."

Based on the testimonial and documentary evidence presented by the DDC staff, the Referee made findings, confirmed by the Hearing Panel, that respondent engaged in the following kinds of professional misconduct, among others, in representing 17 immigrant clients:

(1) accepting client referrals from non-lawyers, and relying on non-lawyers he did not supervise to perform legal work, such as consulting with the client;

(2) in most cases, undertaking the representation without ever discussing the case directly with the client in the presence of a translator, and, in some cases, without ever meeting the client at all;

(3) filing with the courts affidavits purportedly signed by clients, which the clients in fact had not signed;

(4) repeatedly failing to appear at hearings in violation of court directives that he appear, and after giving the courts assurances that he would appear;

(5) filing grossly inadequate and/or untimely motions to change venue or to re-open orders of deportation, which motions were denied;

(6) failing to file motions after his office represented to the clients that such motions would be made;

(7) failing to advise clients of hearing dates, or having his office advise clients that it was unnecessary for them to appear at scheduled hearings, and failing to advise clients of dispositions of motions of which they should have been apprised, such as motions for change of venue;

(8) arranging for other attorneys to appear in his stead at hearings, without informing the clients or obtaining their consent, and without adequately preparing the other attorneys for such appearances; and

(9) failing to return important original documents relating to a client's asylum claim.

In addition, the Referee found that respondent made affirmative misrepresentations to the Immigration Courts and to the DDC in order to conceal his professional misconduct, in a number of cases seeking to blame the client for his own professional failures. Notably, although respondent's neglect resulted in the entry of orders of deportation against the clients who testified in this proceeding, those clients were able to salvage their cases by retaining, at higher cost, new attorneys who made successful motions to re-open.

The Referee also found that respondent engaged in the following misconduct relating to his trust accounts: (1) he wrote a check payable to "cash" from one of his IOLA accounts; (2) he failed to keep and produce to the DDC proper bookkeeping records for that account or a second IOLA account; (8) he accepted a $30,000 check from an individual for deposit in one IOLA account, which funds purportedly belonged to an unnamed third party, and disbursed the funds in cash to the individual who gave him the check without knowing or seeking to know the unnamed third party; and (4) he used one IOLA account solely as a business operating account. Finally, the Referee found that respondent failed to report his correct business address in two OCA registration statements.

To the extent respondent sought to deny the charges or to excuse his admitted misconduct, the Referee found his testimony incredible. Like the Hearing Panel, we see no reason to disturb this finding.

In support of his argument that his punishment should be limited to public censure or reprimand, respondent proffers two points as supposed mitigation of his misconduct. First, he points out that during the period at issue in some of the charges, his mother had been terminally ill in Syracuse, requiring him to travel there frequently up to the time of her death in February 1999. As the Hearing Panel noted, however, respondent failed to demonstrate any causal connection between his mother's illness and his professional misconduct. Second, respondent asserts that his failures to appear for hearings in New Orleans (the venue of a number of his clients' cases) should be deemed exeused due to his fear of flying. Respondent claims that each time he arranged to travel to New Orleans, he believed he would be able to board the airplane, but he ultimately was unable to do so. We agree with the Referee and the Hearing Panel that, under the cireumstances of this case, the matter of respondent's fear of flying is more aggravating than it is mitigating. Respondent, in spite of his awareness that he suffered from this condition, not only took on matters involving hearings in a distant city, he failed to advise his clients of the risk that he would be unable to appear at such hearings due to his disability.

While genuinely mitigating factors are absent, aggravating factors are clearly present. In this connection, it is significant that respondent had accumulated a substantial disciplinary history before any of the events on which the present charges are based. On December 28, 1994, the Fourth Department suspended him, on default, pending further proceedings (Matter of Muto, 210 A.D.2d 1008, 621 N.Y.S.2d 994), and on December 22, 1995, that court suspended him for one year from the date of his interim suspension, and until further order of the court, for neglect and use of client funds for personal purposes (Matter of Muto, 218 A.D.2d 328, 636 N.Y.S.2d 703). Before respondent was reinstated to the bar on December 30, 1996 (Matter of Muto, 234 A.D.2d 1014, 652 N.Y.S.2d 462), the Fifth District Grievance Committee issued a Letter of Admonition to him in March 1996, based on 10 different client complaints of neglect pre-dating his suspension. - Respondent's culpability is further aggravated by his lack of candor in these proceedings, and by his lack of genuine remorse and contrition, as evidenced by his continued mantra-like recitation, even in this Court, of the baseless assertion that he rendered "low cost high quality" representation to his ill-served clients. As the Referee observed, respondent's repetition of this empty claim "has an air of delusion about it."

In sum, we confirm the findings of fact and conclusions of law sustaining all 48 charges against respondent. Further, we agree with the Referee and the Hearing Panel that disbarment is the appropriate sanction in this case. As aptly noted by the Referee, respondent's conduct demonstrates a "truly shocking disregard for his clients' welfare in what is for them one of the most important undertakings of their lives." Respondent, who already has a substantial disciplinary history based on neglect of client matters during an earlier period of his career, has been proven in this proceeding to have neglected the representation of no less than 17 clients in matters of the gravest significance, involving possible loss of their personal liberty and deportation. Through this "long-standing pattern of insensitivity to his legal and ethical obligations, ... respondent has shown himself to be unfit to continue in the practice of law" (Matter of Hunter, 120 A.D.2d 214, 220, 508 N.Y.S.2d 176; see also, Matter of Evangelista, 233 A.D.2d 1, 662 N.Y.S.2d 48; Matter of Kranis, 219 A.D.2d 278, 640 N.Y.S.2d 523, lv denied 89 N.Y.2d 805, 653 N.Y.S.2d 917, 676 N.E.2d 499; Matter of Stenstrom, 194 A.D.2d 277, 605 N.Y.S.2d 603). In the words of the Hearing Panel, respondent "is a danger to any client who might retain him." The protection of the public demands that respondent be removed from the legal profession.

Accordingly, the petition of the DDC for an order pursuant to 22 NYCRR § 608.4(d) should be granted, the findings of fact and conclusions of law of the Referee and the Hearing Panel confirmed, and respondent disbarred from the practice of law in this State and his name stricken from the roll of attorneys and counselors-at-law, effective immediately. -

At a Term of the Appellate Division of the Supreme Court held in and for the First Judicial Department in the County of New York on March 19, 2002.

Present: Hon. Eugene Nardelli, Justice

Presiding

David B. Saxe

Joseph P. Sullivan

Richard W. Wallach

David Friedman, Justices

In the Matter of Joseph F. Muto (admitted as Joseph Francis Muto), an attorney and counselor-at-law:

Departmental Disciplinary Committee for the First Judicial Department, Petitioner,

Joseph F. Muto, Esq., Respondent. -- X

An unpublished order of this Court having been entered on February 27, 2001 (M-762) appointing a Referee to conduct a hearing and file a report in the above-referenced proceeding pursuant to Section 605.12(f) of the Rules of the Court on formal charges against respondent (who, as Joseph Francis Muto, was admitted to practice as an attorney and counselor-at-law in the State of New York at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on January 27, 1987),

And the Departmental Disciplinary Committee for the First Judicial Department by Thomas J. Cahill, its Chief Counsel (Sherry K. Cohen, of counsel), having presented a petition to this Court on January 29, 2002 seeking an order, pursuant to Judiciary Law § 90 and 22 NYCRR 608.4(d), confirming the Report of the Hearing Panel, which confirmed the Referee's findings of fact and conclusions of law and recommended sancetion of disbarment,

And respondent, pro se, having interposed an answer and reply affirmation stating, inter alia, that disbarment is too harsh a sanction and that a lesser sanction such as a public censure or reprimand be imposed,

(M-6977) -2- March 19, 2002

Now, upon reading and filing the papers with respect to the petition, and due deliberation having been had thereon, and upon the Opinion Per Curiam filed herewith, it is unanimously

Ordered that the petition is granted and the Report of the Hearing Panel, which confirmed the Referee's findings of fact and conclusions of law and recommended sanction, is confirmed, and respondent is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof, and it is further

Ordered that respondent is commanded to desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that respondent is forbidden to appear as an attorney and counselor-at-law before any court, judge, justice, board, commission or other public authority; that respondent is forbidden to give to another an opinion as to the Law or its application or any advice in relation thereto, effective the date hereof, Respondent is directed to fully comply with the provisions of Title 22, Seetion 608.18, of the Rules of this Court, a copy of which is annexed hereto and made a part hereof.

      . Respondent challenges only two of the 43 charges against him as based on insufficient evidence. We agree with the Hearing Panel that the charges in question were supported by sufficient evidence.