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P.M. v. State, Division of Family and Youth Services (03/08/2002) sp-5549
P.M. v. State, Division of Family and Youth Services (03/08/2002) sp-5549
Notice: This opinion is subject to 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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
P.M., )
) Supreme Court No. S-10027
Appellant, )
) Superior Court No.
v. ) 3AN-96-381 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, DIVISION OF )
FAMILY AND YOUTH SERVICES, )
)
Appellee. ) [No. 5549 - March 8, 2002]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Barbara L. Malchick, Deputy Public Advocate,
Brant McGee, Public Advocate, Anchorage, for
Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
P.M. appeals the superior court's termination of his
parental rights to his son, J.M.H. Because we find that the
superior court did not violate P.M.'s statutory or due process
rights to counsel, did not err in terminating his parental
rights, and did not err in failing to place the child with P.M.'s
parents, we affirm the superior court's opinion in its entirety.
II. FACTS AND PROCEEDINGS
P.M.'s son, J.M.H., was born in January 1993. During
the first two years of his life, J.M.H. lived with his mother,
E.H.,1 in Vancouver, Washington. What, if any, contact P.M. had
with his son during this time is disputed in the record.2 It is
not disputed that P.M. knew of the child's existence and
whereabouts during those two years. The mother moved to Alaska
with her two sons around 1995 and P.M. has had no further contact
with J.M.H.
The mother and children were discovered in a wooded
area in Alberta, Canada in August 1996, in need of food, shelter,
clothing, and medical care. J.M.H. had an infected foot that had
not been treated. The children were taken into protective
custody by the Canadian authorities, and later transferred to the
care of the Anchorage authorities. The State filed a petition
for adjudication of children in need of aid (CINA) on August 28,
1996. The superior court adjudicated J.M.H. and his half-brother
children in need of aid and committed them to the temporary
custody of the Division of Family and Youth Services (DFYS). On
November 15, 1997, both children were placed in the home of
J.M.H.'s older half-brother's biological father and stepmother,
Mr. and Mrs. C. The C.'s have consistently expressed their
desire to adopt J.M.H.
P.M. has a history of criminal activity, and has been
in and out of jail in Washington and Oregon for several years for
a variety of drug-related and violent crimes. He was incarcerated
in Washington when the children were taken into protective
custody and was released just months before trial. He has a
history of anger management problems.
In January 1998 DFYS filed a petition for termination
of parental rights of E.H. and P.M. At that time, P.M. had not
yet been located, nor had he had contact with DFYS. In March
1998 DFYS located P.M. in prison in Washington state, and served
him with the petition to terminate parental rights. P.M. was
assigned counsel in May 1998. In June the court ordered paternity
testing that confirmed P.M. was the father of J.M.H., and the
court vacated the termination trial set for the following month.
Starting in January 1999, DFYS prepared a number of
case plans for P.M., working to integrate him into his son's
life. The case plans generally focused around P.M.'s anger
management problems. P.M. did not comply with any of these case
plans.
On June 24, 1999, DFYS filed an amended petition for
termination of parental rights for both E.H. and P.M. E.H.'s
parental rights were terminated by the superior court in December
1999. Trial on termination of P.M.'s parental rights was
scheduled for early January 2000.
In November 1998 P.M. attempted to fire his court-
appointed attorney, who was eventually allowed by the court to
step down due to threatening letters he received from P.M. Just
prior to his scheduled trial date, P.M. attempted to fire his new
court-appointed attorney, filed a complaint against his attorney
with the bar association, and moved to have new counsel
appointed. Given a choice to continue with his attorney or to
proceed pro se, P.M. refused to accept either option, and his
attorney was allowed to step down. Superior Court Judge Rene J.
Gonzalez refused to appoint new counsel; however, the judge
continued the trial for nearly six months to allow P.M. time to
be released from prison and attend the trial.
The trial was held June 26-28, 2000. P.M. proceeded
pro se. The court heard testimony from the DFYS social worker,
J.M.H.'s therapist, P.M.'s counselor at the Washington state
penitentiary, and a clinical psychologist. At the conclusion of
the trial, the superior court terminated P.M.'s parental rights
to J.M.H.
III. STANDARD OF REVIEW
In a CINA case, this court will overturn a superior
court's findings of fact only if they are clearly erroneous.3 We
review de novo whether the superior court's findings comport with
the requirements of the CINA statutes and rules.4 When
interpreting statutes5 and constitutional law,6 this court
applies its independent judgment, "adopt[ing] the rule of law
that is most persuasive in light of precedent, reason, and
policy."7
IV. DISCUSSION
A. The Superior Court Did Not Err in Refusing To Grant
P.M. Replacement Counsel.
When P.M.'s original counsel resigned (for reasons
unrelated to this case) the superior court appointed Thom Janidlo
to represent P.M. P.M. soon became unhappy with Janidlo's
performance. He wrote a number of letters to Janidlo that
Janidlo interpreted as threatening, culminating in a letter
purporting to "fire" Janidlo.8 P.M. unsuccessfully moved to have
the court appoint new counsel, alleging that Janidlo was
ineffective. Janidlo then requested permission to withdraw,
citing the "threats of harm" in letters he had received from
P.M., and the court permitted Janidlo to step down.9
In September 2000 the State moved the court to appoint
new counsel for P.M. and the court appointed Jim Hopper as
replacement counsel. P.M. quickly became unhappy with Hopper.
Just before trial was scheduled to begin, P.M. filed a bar
complaint against Hopper, "fired" him, and petitioned the court
to assign yet another attorney. The superior court heard
discussion on the issues of whether to allow Hopper to step down
and whether to appoint new counsel in his place.
Hopper told the court that, given the pending bar
complaint, he felt his interests were "somewhat in conflict" with
P.M.'s, and that he did not feel he could represent P.M.'s
interests. After discussion, the judge gave P.M. a choice:
THE COURT: Either Mr. Hopper goes forward
and represents you, you've already . . . .
went through one attorney. So either it's
Mr. Hopper or you proceed pro se.
P.M.: Sir, I will never waive my rights to
effective representation of counsel. There
is a conflict of interest that exists with me
and Mr. [Hopper], he does not want to do his
job, there is absolutely no way in the world
that I'm going to accept representation as
what Mr. [Hopper] has been showing he is
going to provide for me. There's no way I'm
going to proceed pro se and give up my
statutory rights to counsel. I refuse to
allow the attorney to - to represent me from
here forward. . . .
Following this exchange, the judge granted Hopper's application
to withdraw, citing the bar complaint and Hopper's assertion that
he and P.M. could no longer communicate, and ordered that P.M.
proceed pro se unless he retained private counsel. Despite
objections from the State, the guardian ad litem, and the
attorney for the foster father that a long delay went against the
child's best interests and that P.M. was using this dispute as a
delaying tactic, the judge continued the trial for nearly six
months in order to allow for P.M.'s release from prison so that
he could prepare his case and defend himself.
The trial took place June 26-28, 2000, with P.M.
appearing pro se.10 At the conclusion of trial, the superior
court ruled that P.M.'s parental rights to J.M.H. would be
terminated. In this appeal, P.M. argues that the superior
court's refusal to appoint new counsel to replace Hopper was a
violation of Alaska statutes and his due process rights under the
Fifth Amendment to the U.S. Constitution and article I, section 7
of the Alaska Constitution.
1. Attorney Hopper did not provide ineffective
assistance of counsel justifying his termination
by P.M.
P.M. argued before the superior court that he was
provided ineffective assistance of counsel and that this
justified his discharge of Hopper. The standard for effective
assistance of counsel is "that [counsel's] decisions, when viewed
in the framework of trial pressures, be within the range of
reasonable actions which might have been taken by an attorney
skilled in the . . . law, regardless of the outcome of such
decisions."11 Regarding P.M.'s arguments that Hopper provided
ineffective assistance, the superior court concluded that P.M.
"was manipulating the court." Judge Gonzalez wrote:
Both Mr. Thom Janidlo and Mr. James
Hopper are attorneys who have many years of
experience in representing clients in Child
In Need of Aid proceedings and both have a
proven record of representing clients in a
highly professional manner. The fact that
they were not willing to comply with every
whim and unreasonable requests made by [P.M.]
did not make their representation of him
suspect or in any way incompetent.
Although finding that both Alaska Rules12 and the Alaska
Constitution guaranteed to P.M. the right to counsel, the judge
concluded that these provisions did "not grant [P.M.] the right
to manipulate the court and continue to delay the termination of
parental rights proceedings." He found that the tone and content
of the letters sent by P.M. to both Janidlo and Hopper made it
"clear that he is unwilling to communicate and cooperate with any
attorney unless they respond to his every whim and unreasonable
requests." He further found that it was "blatantly unfair for a
court-appointed attorney to be placed in a position by [P.M.] of
having to be concerned of threats of bodily harm or having to
respond to a bar grievance even though it is not well founded."
He therefore denied P.M.'s final motion for appointment of
substitute counsel. The superior court's characterization of the
nature of P.M.'s conduct with respect to his appointed counsel is
amply borne out by the documentary evidence in the record.13
P.M. argues that he should, at the very least, have
received a hearing on his claim of cause to discharge Hopper.
P.M. sent a seven-page handwritten motion to the judge, seeking
to have Hopper replaced and explaining his reasons.14 He had
previously alleged nearly identical grounds against Janidlo in
writing. Having reviewed these pleadings we conclude that the
judge did not err in considering these allegations so facially
unpersuasive as not to require an evidentiary hearing.15 In
J.L.P. v. V.L.A. we recognized that where allegations are "so
general or conclusory, and so convincingly refuted by competent
evidence, as to create no genuine issue of material fact" no
evidentiary hearing is needed.16 This standard was satisfied in
the present case.
2. P.M. was not denied due process of law.
P.M. correctly argues that the due process clause of
the Alaska Constitution grants indigents the right to appointed
counsel.17 But "[t]he right to the effective assistance of
counsel does not extend . . . to the right to reject appointed
counsel and have new counsel appointed in the absence of any
showing of cause for such change."18 Although P.M. claims that he
did show cause (or was not given the opportunity to show cause)
the record demonstrates, as we concluded above, that P.M. did not
present a prima facie case of justifiable cause to fire either of
his attorneys.19
We have upheld a number of court decisions refusing to
appoint new counsel when the superior court had found that the
request for replacement counsel lacked merit or was being used as
a delay tactic.20 Here, the superior court made such findings,
and did not err in refusing to appoint replacement counsel.
The closer question is whether the superior court erred
in dismissing Hopper. As P.M. correctly points out, he did not
affirmatively waive his right to counsel. It might have been
preferable in this case to have continued with the trial as
scheduled, with Hopper remaining as P.M.'s attorney. But it was
not error for the court to proceed as it did. Fundamental
fairness is the main requirement of the due process clause.21
Given the facts in this case - P.M.'s refusal to work with two
separate appointed attorneys, his threats against his attorneys,
the bar complaint against one attorney and his threats of bar
complaints, his aggressive and disturbing letters to his own and
other attorneys, to the judge, and to his son's foster father -
as well as the superior court's efforts to accommodate P.M. by
delaying the trial, we find that the superior court's decision to
have P.M. proceed pro se was not fundamentally unfair.
B. The Superior Court Did Not Err in Terminating P.M.'s
Parental Rights to J.M.H.
The superior court found by clear and convincing
evidence that J.M.H. was a child in need of aid under AS
47.10.011, and that P.M. had "failed within a reasonable time to
remedy the conduct or conditions in the home that placed the
child at substantial risk of harm so that returning the child to
his care would place the child at substantial risk of physical
and mental injury." The court found that P.M. had abandoned the
child under AS 47.10.013 and had neglected the child under AS
47.10.014. The court specifically found that P.M. had abandoned
J.M.H.22 by leaving the child "without provision for the child's
support and without meaningful communication with the child for
the first six years of the child's life"; being "absent from the
home for a period of time that created a substantial risk of
serious harm to the child"; "fail[ing] to make reasonable efforts
to locate and communicate with the minor child for the first six
years of the minor's life"; and failing to offer financial
assistance. Furthermore, the court found that despite P.M.'s
failures, he was "given the opportunity to meaningfully
participate in four suitable case plans by DFYS" and that "he
failed to do so."
The court further found that P.M. had neglected J.M.H.23
since birth by failing "to provide the child with adequate food,
clothing, shelter, education, medical attention and other care
and control necessary for the child's physical and mental health
and development." The court found that P.M.'s "willful neglect"
of the child created the conditions causing J.M.H. to be a child
in need of aid, due to the "substantial physical and mental harm"
caused by the mother during the father's absence.
In E.J.S. v. State, Department of Health and Social
Services, we held that "a parent has the duty to make reasonable
efforts to locate and communicate with his or her child. Token
efforts by a parent to communicate with his or her child are
insufficient to satisfy this parental duty."24 In that case, we
affirmed the superior court's finding that the father had
physically abandoned his child, and that his conduct was likely
to continue.25 That case is strikingly similar to this case. In
E.J.S. the record showed that the father had made little or no
effort to locate his child for three years. The father, like
P.M., was in Washington state, while the mother and child were in
Alaska.26 In E.J.S. we faulted the father for not contacting
DFYS, the Alaska State Troopers, the Alaska Police Department, or
the Alaska Child Support Enforcement Division for information,
and not traveling to Anchorage to attempt to find his child.27
Similarly, P.M. made no attempt to locate his son for three
years, despite knowing that he was in Alaska.
The superior court additionally found by a
preponderance of the evidence that the Department of Health and
Social Services had made "timely reasonable efforts to provide
support services to [P.M.] as required by AS 47.10.086. The
Department prepared four case plans for [P.M.] . . . that
addressed his rehabilitative needs and the special needs of the
minor child, and he refused and failed to meaningfully
participate in said plans." Accordingly, the superior court
terminated P.M.'s parental rights to J.M.H.28
P.M. challenges the court's termination of his parental
rights on the grounds that the facts do not support a finding of
either abandonment or neglect. P.M. claims that the record does
not support the court's finding that he had no contact with his
son while his son was living in Washington state for the first
two years of his life.29 P.M. is correct that the record is not
conclusive on this point. However, even if it were assumed that
P.M. had contact with his child from 1993 to 1995,30 it is
uncontested that P.M. had no contact with J.M.H. from 1995 until
he was contacted by DFYS in 1998, and it is similarly uncontested
that he made no effort to locate the child during this time.
This is sufficient to satisfy the requirements for a finding of
abandonment and neglect.
P.M. claims that he did not abandon his son, and that
for a time he did not know the whereabouts of his son, except to
know that the mother and children were in Alaska. Elsewhere in
the record, however, he claimed that he knew the child's mother
was on welfare and stated that it is easy to find people on
welfare. There is no evidence that P.M. made any attempt to
locate the mother or J.M.H. after they left Washington state in
1995.
In considering whether to terminate parental rights
under AS 47.10.088, the court is instructed to consider the best
interests of the child.31 According to social workers and
therapists, J.M.H. has "blossomed" in the home of the C.'s. When
J.M.H. was first taken into protective custody at age four, he
suffered seizures and developmental delays. He has now been with
the C.'s for four years, is described as happy and secure, and
refers to the C.'s as "mom and dad."32
At trial, J.M.H.'s social worker, Kathy Gray, testified
that P.M. was not receptive to the need to participate in his
case plan. She testified that DFYS was concerned about P.M.'s
anger, that he "came across as threatening" in a letter he wrote
to J.M.H.'s foster father, and that his letters to her were
"threatening in nature and argumentative." She testified that he
refused to undergo a psychological evaluation; that he refused to
sign releases giving DFYS access to his records; that he did not
comply with any of DFYS's case plans, despite their efforts to
work with him; and that in all of her communication with P.M., he
had never expressed any concern for J.M.H.'s well-being or shown
any insight into the child's needs. Gray further expressed the
opinion that P.M. had not shown an ability to provide a stable
home for a young child with special needs like J.M.H.33
Regarding J.M.H.'s life with the C.'s, Gray testified
that "[h]e's doing great," and that DFYS had concerns that
removing him from his current home with the C.'s "would be very
traumatic for him. . . . [H]e's basically been there almost half
his life. And then to remove him into an unknown, unstable home
would be not something that we would do." She further testified
that J.M.H. identified Mr. C. as his "dad."
Clinical psychologist Susan LaGrande testified34 that
J.M.H. had progressed farther than most people had expected. She
also testified to J.M.H.'s "very special bond" with his older
brother, J.J.H., who had taken care of him while the two were in
their mother's care. She commented that nowhere in the letters
regarding his son did P.M. ever express concern for his son's
welfare. She pointed out that P.M. does not have a stable work
history, a stable drug-free history, or a record of stability and
consistency that a special needs child would require. Dr.
LaGrande described J.M.H. as "a specially needful child who is
making progress, which is a very good positive thing here." She
suggested that the special bond with his brother was extremely
important, and that J.M.H. appeared to have bonded with his
foster family.
J.M.H.'s counselor, Isa Jennings, testified that when
the child entered state custody, he suffered from post-traumatic
stress symptoms, nightmares, anxiety, fear, developmental delays,
and epilepsy. She testified that J.M.H. "bonded really strongly"
with his foster mother and "felt very safe and protected with
her," and that he "blossomed" with the C.'s. She opined that
removal from the C.'s' care would cause J.M.H. to "lose whatever
developmental gains he has made," and she worried that J.M.H.'s
seizures might return.
DFYS's concerns about P.M.'s anger management issues
are clearly supported by the record. Carla Schettler, P.M.'s
case worker at the Washington state penitentiary, testified that
P.M. "had a very negative attitude" and "was very
confrontational" with her. She testified that during his time in
prison, P.M. received multiple infractions for threatening other
prisoners, refusing his cell assignment, and for threatening
staff. P.M. also proved to be highly confrontational in his
dealings with the court, and he sent a number of aggressive
and/or threatening letters to his attorneys, other attorneys in
the case, the judge, and his son's foster father.35
P.M. clearly failed to comply with any of DFYS's case
plans and refused to cooperate with his social worker, Gray. He
wrote to Gray that "[y]ou absoulteley [sic] do not have my
permission for any information you asked for concerning me that
you asked for on that confidential release form. And you MAY NOT
have any other information that pertains to me for that matter."
He wrote to the assistant attorney general regarding Gray: "I
want this lady to stay away from me, if she sends me anything, I
will reject it." Gray made several attempts to communicate with
P.M. and the assistant attorney general also advised P.M. that it
was in his best interest to work with Gray on a case plan. P.M.,
however, refused to take anger management or parenting classes,36
to submit to a psychological evaluation, or to allow DFYS access
to his criminal history, all of which were required by his case
plans.
Based on all of the information in the record and
testimony at trial, the superior court's decision to terminate
P.M.'s parental rights to J.M.H. is clearly supported by the
record. We therefore uphold the termination.
C. The Superior Court Did Not Err in Refusing To Grant
Custody of J.M.H. to the Parents of P.M.
P.M. argues that the superior court erred in refusing
to grant custody of J.M.H. to P.M.'s parents. He argues that
under AS 47.14.100(e),37 the court is obligated to place the child
with a blood relative unless it finds, based on clear and
convincing evidence, that placement with the relative will result
in physical or mental injury. P.M. contends that this standard
was not met.
The guardian ad litem argues that AS 47.14.100(e) is
not applicable. The last sentence of AS 47.14.100(f) (which
concerns a relative who agrees that a child should be placed
elsewhere) states that "[n]othing in this subsection or in (e) of
this section applies to child placement for adoptive purposes."
The guardian ad litem asserts that because J.M.H. is in a pre-
adoptive home, AS 47.14.100(e) does not apply to this case. The
guardian ad litem is correct.
In S.S.M. v. State, Department of Health and Social
Services, this court wrote that "[t]he basic model of a
`placement for adoptive purposes' within the meaning of
subsection .100(f) would seem to entail placement of a child with
adults who wish to adopt the child."38 In the current case, the
C.'s have clearly expressed their desire to adopt J.M.H.
Likewise, DFYS has repeatedly acknowledged its plan for the C.'s
to adopt J.M.H. In S.S.M. we wrote:
It is the specific purpose of the DFYS
placement, not the general purpose of the
custody granted to DFYS, that is important
under subsection .100(f). . . . Thus
subsection .100(f)'s "placement for adoptive
purposes" language refers to DFYS's specific
decisions concerning "placement" of a child
in its custody, not to the court's threshold
decision to give DFYS "custody" over the
child.[39]
In this case, although the first two case plans, dated September
1996 and January 1997, listed permanency planning goals of
"return[ing] home" (by which DFYS meant to return the children to
the mother, not to P.M.), the permanency planning goal as of
September 1997 became that of "adoption," by the C.'s.40 DFYS's
goal of adoption by the C.'s and the C.'s' expressed interest in
the adoption are reiterated in each subsequent case plan. The
grandparents first requested custody of J.M.H. in June of 1998,
by which time J.M.H. was already living with the C.'s in a pre-
adoptive home. Under AS 47.14.100(f) and S.S.M., therefore, AS
47.14.100(e) does not apply to this case.
Putting the statutory issue aside, we note that the
court's decision to deny the grandparents' appeal is supported by
the record. J.M.H. has been living with the C.'s for more than
four of his nine years. Testimony at trial showed that J.M.H. is
very close to his brother and foster family, has made great
strides toward overcoming his developmental problems, and is
happy. The experts testified that removing him from that
environment would not be in his best interests and would likely
cause him to regress. We therefore uphold the superior court's
refusal to place J.M.H. with P.M.'s parents.
V. CONCLUSION
Because the superior court did not err in refusing to
grant P.M. replacement counsel, in terminating P.M.'s parental
rights, or in denying P.M.'s parents' appeal that J.M.H. be
placed with them, we uphold the superior court's opinion in its
entirety.
AFFIRMED.
_______________________________
1 The termination of E.H.'s parental rights to J.M.H. and
his older half-brother J.J.H. was upheld by this court in E.H. v.
State, Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001).
2 At trial, the clinical psychologist testified that it
appeared J.M.H. had "only seen his dad once or twice." Judge
Gonzalez found that P.M. had no contact with his son for the
first six years of the child's life. However, P.M.'s mother
wrote to P.M.'s attorney that P.M. had visited J.M.H. when he was
a baby.
3 In re S.A., 912 P.2d 1235, 1237 (Alaska 1996).
4 E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d
766, 768 (Alaska 1998).
5 Longwith v. State, Dep't of Natural Res., 848 P.2d 257,
260 n.5 (Alaska 1992).
6 Brandon v. Corrections Corp. of America, 28 P.3d 269,
273 (Alaska 2001).
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 P.M. also filed a complaint against Janidlo with the
bar association.
9 P.M. unsuccessfully appealed this decision.
10 P.M. failed to appear for the first day of the trial.
On day two he appeared and was allowed to listen to the tapes of
the first day. Despite the trial having been calendared for only
two days, the judge granted P.M.'s request to be allowed to put
on his case on a third day to provide him time to organize his
case. Upon reconvening on day three, the judge granted P.M.'s
request for an additional hour to organize his notes.
11 V.F. v. State, 666 P.2d 42, 46 (Alaska 1983) (quoting
Risher v. State, 523 P.2d 421, 424 (Alaska 1974)).
12 Alaska Child in Need of Aid Rule 12 provides in part:
(a) Notice of Right to Counsel. The
court shall inform the parties at the first
hearing at which they are present of their
respective rights to be represented by
counsel at all stages of the proceedings.
(b) Appointed Counsel. The court shall
appoint counsel pursuant to Administrative
Rule 12:
(1) for a parent or guardian who is
financially unable to employ counsel[.]
13 In his very first letter to Janidlo, P.M. wrote "I AM
either going to be a blessing to you, or a curse. But which of
the two I AM to you, will be your choice. Because I will be one
of the two." He also admitted to being "defensive" on the phone
with Janidlo's office. In a subsequent letter to Janidlo, he
reiterated that "I AM going to be to you either an eternal
blessing, or a curse." P.M. later wrote to Hopper that
I have sent copies of my letters to the Bar
Association as a protection . . . . But if I
ever get suspcious [sic] of your motives or
representation I will involve the Bar
Association whether they like it or not and I
will not let them not be involved with
monitoring and supervising our
attorney/client relationship if I have to
write complaints to everyone in the World.
He wrote in another letter to Hopper that
I will be suiting (sic) my former attorney,
you've got my word on this. Jim I'm not
going to play games with you. You have a job
to do, now I expect you to do it to the best
of your ability. And if you've got a problem
with that, then get out of the way. Because
Jim I promise you you will not play games
with my life without consequences.
Another letter reads: "Mr. Hopper don't try and play me for some
fool. You can't tell me how the law reads on issues I have
studied, so don't try bullshitting me. Save that drag for some
jake who doesn't know any better." Throughout his
correspondence, P.M. repeatedly demanded that his counsel submit
particular motions; contact his family members; send him entire
copies of large files; send him all discovery; and send him
copies of all applicable laws as well as all Alaska Court and
Appellate Rules and DFYS/DHSS policies. He demanded that his
counsel follow up on particular motions even when counsel appears
to have disagreed with the motions or told P.M. that the legal
authority contained in the motions did not apply to his case.
14 In his motion, P.M. alleged a "conflict of interest"
with his attorney. He alleged that Hopper did not interview
P.M.'s relatives (in Washington state) regarding J.M.H.'s
placement; arrange for the DFYS case worker to fill out a
visiting form for P.M.; file a motion to stay the proceedings
until P.M. was out of jail (although Hopper did file for one
continuance and appeared willing to file for another continuance
to accomplish this goal); file a motion to have the presiding
judge step down; ensure that the judge ruled on P.M.'s previously-
entered pro se motions; return a copy of a newspaper article P.M.
had sent him; send P.M. copies of all Alaska appellate rules and
all annotated Alaska statutes; or send P.M. copies of all
motions, pleadings and discovery in the case. Even if proven,
this conduct would not constitute a conflict of interest between
P.M. and Hopper, or ineffective assistance of counsel by Hopper.
15 The Alaska Bar Association came to the same conclusion,
writing in a letter to P.M. that there was "an inadequate or
insufficient basis for opening an investigation" into P.M.'s
complaints against Hopper.
16 30 P.3d 590, 595 (Alaska 2001) (citation omitted).
17 See V.F., 666 P.2d at 45.
18 Id. at 46 n.5.
19 Filing a bar grievance against an attorney does not by
itself destroy the attorney-client relationship or require the
attorney to withdraw from representation. See Michigan Comm. on
Prof'l and Judicial Ethics, Informal Op. RI-84 (1991) (a lawyer
need not withdraw from representation when a client files a
grievance against the lawyer provided that a disinterested lawyer
would conclude that the grievance would not adversely affect the
representation); cf. ABA Comm. on Ethics and Prof'l
Responsibility, Formal Op. 94-384 (1994) ("A lawyer against whom
a disciplinary complaint has been filed by opposing counsel in an
ongoing matter is ordinarily neither required nor permitted on
that account alone to withdraw from representing the client in
the matter.").
20 See Coleman v. State, 621 P.2d 869, 877-78 (Alaska
1980) (upholding denial of motion for assignment of private
counsel and denial of petition to withdraw after judge determined
attorney could properly represent his client, because "indigent
defendants are not constitutionally entitled to counsel of their
choice or private appointed counsel in lieu of a public defender
attorney as a matter of right"); Bentley v. State, 393 P.2d 225,
230-31 (Alaska 1964) (upholding refusal to appoint new counsel,
finding that state is not "obliged to appoint counsel in whom
[the party has] confidence" so long as appointed counsel is
"capable"); see also Mute v. State, 954 P.2d 1384, 1385 (Alaska
App. 1998) ("the right to effective assistance of counsel does
not encompass the right to reject appointed counsel and have new
counsel appointed in the absence of any showing of cause for such
change"); Annas v. State, 726 P.2d 552, 557 (Alaska 1986)
(finding that "[t]he trial court fulfills its obligation under
the United States and Alaska Constitutions when it makes
available to a defendant a competent attorney. A defendant is not
entitled to pick and choose among appointed counsel.").
21 See, e.g., State v. Mouser, 806 P.2d 330, 336 (Alaska
App. 1991).
22 Under AS 47.10.013.
23 Under AS 47.10.014.
24 754 P.2d 749, 751 (Alaska 1988).
25 Id. at 751-52.
26 Id. at 750-51.
27 Id. at 751.
28 Termination of parental rights is governed by AS
47.10.088(a), which provides that parental rights may be
terminated if a court finds:
(1) by clear and convincing evidence
that
(A) the child has been subjected to
conduct or conditions described in AS
47.10.011; and
(B) the parent
. . . .
(ii) has failed, within a reasonable
time, to remedy the conduct or conditions in
the home that place the child in substantial
risk so that returning the child to the
parent would place the child at substantial
risk of physical or mental injury; and
(2) by a preponderance of the evidence
that the department has complied with the
provisions of AS 47.10.086 concerning
reasonable efforts.
29 P.M. does not affirmatively claim that he did have
contact with his son during the first two years of his son's
life, only that the record fails to prove that he did not have
such contact.
30 Although not conclusive, the record best supports a
conclusion that P.M. had limited, if any, contact with J.M.H.
during this time, and provided little or no financial support.
31 AS 47.10.088(c).
32 J.M.H. has lived with his older brother, J.J.H., his
entire life, and removing J.M.H. from the C.'s' home would also
separate him from his brother.
33 J.M.H. had been sexually abused by his mother, led a
transient lifestyle for the first several years of his life,
suffered from seizures, threw temper tantrums, was very fearful,
and was developmentally behind other children his age.
34 Dr. LaGrande testified on the basis of her review of
the files in this case. She did not actually interview the
various parties.
35 In a letter to J.M.H.'s foster father, P.M. wrote "I'm
in prison for assaulting a cop. So understand I don't fear the
cops." This is only one example of the many aggressive,
disturbing, and threatening remarks contained in P.M.'s letters
to people involved in this case.
36 P.M. completed one anger management class and one
parenting class prior to formulation of the first case plan, but
given his ongoing aggressiveness related to this case and the
repeated infractions at the prison, DFYS requested that he retake
the classes, which he refused to do.
37 AS 47.14.100(e) provides in pertinent part:
A child may not be placed in a foster
home or in the care of an agency or
institution providing care for children if a
relative by blood or marriage requests
placement of the child in the relative's
home. However, the department may retain
custody of the child and provide for its
placement in the same manner as for other
children if the department
(1) makes a determination, supported by
clear and convincing evidence, that placement
of the child with the relative will result in
physical or mental injury; . . . this
determination may be appealed to the superior
court to hear the matter de novo[.]
38 3 P.3d 342, 347 (Alaska 2000).
39 Id.
40 J.M.H. did not begin living with the C.'s until
November 1997. DFYS's goal of adoption by the C.'s therefore has
been consistent ever since it contemplated placing J.M.H. with
the C.'s.
