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Nelson v. Jones (9/5/97), 944 P 2d 476
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
PAUL A. L. NELSON, )
) Supreme Court No. S-7760
Appellant, )
) Superior Court No.
v. ) 1JU-85-1188 CI
)
LORETTO L. JONES, ) O P I N I O N
)
Appellee. ) [No. 4881 - September 5, 1997]
)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Walter L. Carpeneti, Judge.
Appearances: Paul A. L. Nelson, pro se,
Haines. Keith B. Levy, Law Offices of Keith B. Levy, Juneau, for
Appellee Minor Child.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Chief Justice.
I. INTRODUCTION
This appeal is from the superior court's order denying
Paul Nelson's motion to modify child visitation. Nelson contends
that the court, by denying all past motions to modify visitation,
has effectively terminated his parental rights. Since we conclude
that Nelson's parental rights have not been terminated, we affirm
the superior court's order.
II. FACTS AND PROCEEDINGS
Paul Nelson and Loretto Jones had one child during their
two-year marriage. [Fn. 1] After three days of testimony during
their divorce trial, they stipulated to issues of custody and
visitation. The stipulation provided that "the court finds clear
and convincing evidence that [T.] was sexually abused by her
father." Asked in open court if he approved the stipulation,
Nelson stated, "Yes . . . with the understanding that it is not an
admission of guilt." The trial court entered a memorandum decision
and order which incorporated the stipulation. The court ordered
that Nelson have supervised visitation, conditioned upon Nelson's
participation in a sex-offender treatment program.
Nelson began the program, but refused to admit in therapy
that he sexually abused T. Dr. Anthony Mander, the court-appointed
therapist, terminated treatment, believing that patients in denial
of having committed abuse are untreatable. Jones then refused all
further visitation between Nelson and T. In 1987, Nelson moved to
enforce visitation rights with T.
In denying Nelson's 1987 motion, the trial court
observed, "[p]ast experience with [Nelson] shows that he will not
follow the rules of supervision, that he will attempt - using
counsel when necessary - to overcome and defeat the controls placed
upon him by the supervisor." In Nelson's appeal of that denial, we
stated, "[Nelson] violated the court's orders by initiating or
encouraging physical contact between him and T." Nelson v. Jones,
781 P.2d 964, 969 (Alaska 1989). We concluded that "[e]xpert
testimony and [Nelson]'s behavior both suggest that even supervised
visitation could be harmful to T. The trial court did not clearly
err in concluding that 'the risk of continuing, long lasting
emotional harm to T. from contact with Nelson while he remains in
denial is too great to be tolerated.'" Id.
We also specifically reviewed the trial court's
conditioning Nelson's visitation of T. upon his admission that he
abused her; we upheld the trial court's order. Id. We concluded
that the trial court did not clearly err in concluding that Nelson
sexually abused T., and therefore did not abuse its discretion in
conditioning supervised visitation on Nelson's participation in
sex-offender treatment. Id. at 969-70. Since that appeal, Nelson
has filed additional motions to modify visitation. The trial court
denied Nelson's next to last motion, because "[n]ot one of the
conditions for the renewal of visitation previously set by the
trial judge . . . has even remotely been met."
In March 1996, Nelson again moved to modify child
visitation. In June, the trial court denied, without hearing,
Nelson's motion. Nelson appeals, charging that the cumulative
effect of the superior court's orders is a termination of his
parental rights.
III. DISCUSSION
A. Standard of Review
Custody issues are reviewed under an abuse of discretion
standard. See Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977).
"Abuse of discretion is established if the trial court considered
improper factors or failed to consider statutorily-mandated
factors, or improperly weighted certain factors in making its
determination." Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
A trial court's factual findings are reversed only if they are
clearly erroneous. See Horutz, 560 P.2d at 399. A finding is
clearly erroneous if it leaves the court with "a definite and firm
conviction on the entire record that a mistake has been made."
City of Hydaburg v. Hydaburg Co-op Ass'n, 858 P.2d 1131, 1135
(Alaska 1993) (quoting Parker v. Northern Mixing Co., 756 P.2d 881,
891 n.23 (Alaska 1988)).
B. The Trial Court Did Not Exceed Its Jurisdiction and
Effectively Terminate Nelson's Parental Rights.
Alaska provides for the termination of parental rights
only in the context of child in need of aid (CINA) proceedings
under AS 47.10.080 [Fn. 2] and adoption proceedings under AS
25.23.180. [Fn. 3] See Perry v. Newkirk, 871 P.2d 1150, 1151
(Alaska 1994).
Nelson contends that while the trial court never formally
terminated his parental rights, it did so in practical effect by
depriving him of all visitation with T. for almost ten years. He
has repeatedly moved to modify the visitation order, but has been
denied each time. He argues that these facts constitute a de facto
termination of his parental rights.
The gravamen of Nelson's argument is that he is innocent
of sexual abuse, and therefore he still may appeal the condition
attached to his visitation rights. However, the conditioning of
Nelson's visitation on participation in a sex-offender treatment
program was addressed in a previous appeal. He may not now raise
that issue. In 1987, the trial court found:
The court was well aware that the first step--
and an absolutely indispensable step--in that
treatment is a full admission of the offense and its cause to the
treatment provider, the victim, and others directly involved.
(Given the . . . lengthy involvement of experts in this case,
Nelson also must have been fully aware of this at the time.) The
court had previously terminated Nelson's supervised visitation,
pendente lite, because of his repeated and increasingly flagrant
disregard of the rules governing the visits. And the court
perceived no way in which visitation would not be harmful to [T.]
until after Nelson had begun an effective course of treatment. [Fn.
4]
In the 1989 appeal, this court reviewed the trial court's
decision to condition supervised visitation on Nelson's admitting
in therapy his sexual abuse of T. We concluded that it was not an
abuse of discretion. We stated:
[T]he [trial] court did not err in finding
again that [Nelson] had abused his daughter. A more difficult
question is whether, in light of its finding of abuse, the trial
court abused its discretion in conditioning further visitation by
[Nelson] upon his admission that he abused T. . . . Though the
trial court's order is severe, its severity is justified by the
overriding need to protect T. from further harm. . . . [Nelson]
violated the court's orders by initiating or encouraging physical
contact between him and T. . . . Expert testimony and [Nelson]'s
behavior both suggest that even supervised visitation could be
harmful to T. The trial court did not clearly err in concluding
that "the risk of continuing, long lasting emotional harm to T.
from contact with Nelson while he remains in denial is too great to
be tolerated."
Nelson, 781 P.2d at 969. Even though we acknowledged the
seriousness of conditioning Nelson's visitation on his admitting
the abuse, we still concluded that the condition was not the
product of an abuse of discretion.
Because Nelson can attempt to re-establish visitation
whenever he chooses, by complying with the trial court's
conditions, the trial court found that "[o]f course, Nelson's
parental rights have not been terminated." We decline to decide
whether a court could constructively terminate parental rights in
the manner asserted by Nelson, because we conclude that the trial
court's restriction on visitation is not, in effect, a termination
of Nelson's parental rights.
C. The Trial Court Did Not Err by Denying Nelson an
Evidentiary Hearing.
The trial court is not required to hold a hearing
whenever a parent moves for a change in visitation. See Carter v.
Brodrick, 816 P.2d 202, 204 (Alaska 1991). "[T]he court has
discretion to deny a hearing where no showing has been made of
changed circumstances or of an alteration in the best interests of
the child." Id. (denying an evidentiary hearing where father makes
prima facie showing of changed circumstances is an abuse of
discretion) (quoting Deivert v. Oseira, 628 P.2d 575, 579 (Alaska
1981)). "While a trial court must consider all motions for a
change in custody, it is not required to grant a hearing on the
motion if it is plain that the facts alleged in the moving papers,
even if established, would not warrant a change." Id. (quoting
Deivert, 628 P.2d at 578).
Since no facts are disputed with respect to the child's
present desire to see Nelson, [Fn. 5] there are no factual issues
which an evidentiary hearing would flesh out. Based on undisputed
facts and the record, there was no change in circumstances which
would require inquiry into the best interests of the child. Also,
for this reason, no evidentiary hearing was required. [Fn. 6]
D. The Trial Court Used the Standard of the Child's Best
Interest in Conditioning Visitation.
A court may modify visitation rights if it finds both a
change in circumstances and that the modification is in the best
interests of the child:
An award of custody of a child or visitation
with the child may be modified if the court determines that a
change in circumstances requires the modification of the award and
the modification is in the best interests of the child.
AS 25.20.110(a). In denying Nelson's motion to modify, the trial
court determined that "Nelson has already received a hearing on
this issue, and the court has determined that the conditions placed
on the resumption of visitation between Nelson and T. are in T.'s
best interests."
We conclude that the court specifically considered the
child's best interests, and therefore committed no error. [Fn. 7]
IV. CONCLUSION
We conclude that Nelson's parental rights have not been
terminated. Also, since it is undisputed that the child continues
to oppose visitation, Nelson failed to show the change in
circumstances needed to warrant an evidentiary hearing. Nelson's
other arguments are without merit. The judgment of the superior
court is AFFIRMED.
FOOTNOTES
Footnote 1:
T., born in 1983, is now 14 years old.
Footnote 2:
AS 47.10.080 (c)(3) provides in part:
If the court finds that the minor is a child
in need of aid, it shall by order, upon a showing in the
adjudication by clear and convincing evidence that there is a child
in need of aid . . . as a result of parental conduct and upon a
showing in the disposition by clear and convincing evidence that
the parental conduct is likely to continue to exist if there is no
termination of parental rights, terminate parental rights . . . .
Footnote 3:
AS 25.23.180(c) provides in part: "The relationship of parent
and child may be terminated by a court order issued in connection
with a proceeding under this chapter . . . ."
Footnote 4:
This directly contradicts Nelson's continued proclamation that
"Nelson never got a hearing at which ANYBODY proved that ending
visitation served [T.]'s best interest." In fact, the trial court
referred to "lengthy post-judgment evidentiary hearings"concerning
"Nelson's sexual abuse of his daughter"and "other evidence bearing
on Nelson's motions"(including motions regarding Nelson's
visitation).
Footnote 5:
The trial court quoted T.'s counsel in its opinion:
The only change in circumstance since the last
motion is simply the passage of time. . . . The minor child still
opposes Nelson's motions for modification and other legal actions
he purportedly undertakes on her behalf. If the passage of time
has any effect, it only serves to emphasize the child's steadfast
desire to keep the visitation limitations in effect. . . . T. is
now a teenager and her preferences deserve serious consideration.
T. does not want further motions, hearings or orders. T. does not
want visitation reinstated. It is T.'s desire that this endless
stream of litigation come to an end.
(alteration in original).
Footnote 6:
Nelson raises constitutional first and fifth amendment
violations for the first time in his appellate brief, having failed
to argue them in his motion to modify visitation. We decline to
review these issues. See, e.g., Tommy's Elbow Room, Inc. v.
Kavorkian, 754 P.2d 243, 245 n.7 (Alaska 1988) (holding that
argument first raised on appeal will not be addressed). Nelson, as
a pro se appellant, is allowed a more lenient standard in his
pleadings. See, e.g., Zok v. State, 903 P.2d 574, 576 n.2 (Alaska
1995) (holding pro se litigants to less stringent standards than
lawyers). However, Nelson raised these constitutional claims in
federal court in August 1993, showing that he was aware of the
issues.
Nelson also argues that T.'s constitutional and civil
rights are violated as well as his own. [Fn. 8] It is worth noting
that T. opposes all visitation with her father. The trial court
rejected Nelson's assertion of T.'s rights:
T. is represented by counsel in this
proceeding. Counsel for T. has not voiced these concerns; indeed,
on behalf of T., she takes the opposite position. In these
circumstances, there is no reason to conclude that T.'s rights have
been violated by her lack of visitation with plaintiff. T. opposes
visitation with plaintiff.
Footnote 7:
Nelson argues that the trial court did not use the standard of
the child's best interest when ordering visitation in 1987. To the
extent that the earlier appeal does not directly address the best
interests of the child, Nelson is foreclosed from now raising the
issue.
Footnote 8:
One of Nelson's argument headings is "The Superior Court
Continues To Violate The Civil Rights, Constitutional Rights and
Pre-Constitutional Fights (sic) Of Nelson and [T.] To Be Together
And Communicate." Appellant brief, TOC.
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