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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alyssa B. v. State, Dept. of Health & Social Services, Division of Family & Youth Services (08/17/2007) sp-6147
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
| ALYSSA B., | ) |
| ) Supreme Court No. S- 12410 | |
| Appellant, | ) |
| ) Superior Court No. 3PA-02-00037 CP | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF HEALTH AND | ) |
| SOCIAL SERVICES, DIVISION OF | ) No. 6147 - August 17, 2007 |
| FAMILY & YOUTH SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Palmer, Eric Smith, Judge.
Appearances: A.B., San Ysidro, California,
pro se. Michael G. Hotchkin, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
Alyssa B. appeals from an order terminating her
parental rights to her daughter, Jaclyn.1 Alyssa contends that
the superior court violated her due process rights by conducting
the termination trial in her absence and terminating her parental
rights because she was mentally ill. Alyssa also raises various
other challenges to both the termination proceedings and her
preceding adjudication proceedings. Because we conclude that
Alyssas due process rights were not violated when the termination
trial was held without her, and because the superior courts
termination order was not based on her mental illness alone, we
affirm the termination order. Because the rest of Alyssas claims
lack merit, we affirm those rulings as well.
II. FACTS AND PROCEEDINGS
In March 2005 the Department of Health and Social
Services filed a petition to terminate Alyssa B.s parental rights
to her daughter, Jaclyn. Jaclyn had been adjudicated a child in
need of aid in October 2003 and was committed to the departments
custody in February 2004.
Alyssa chose not to be represented by her court-
appointed attorney at the termination trial. The trial was
delayed several times while the court tried to find Alyssa an
attorney who would be acceptable to her; Alyssa also filed
numerous motions and requests for continuances. Ultimately, the
court appointed the Palmer Public Defender Agency to serve as
Alyssas advisory counsel. On May 18, 2006, a notice of the date
of the termination hearing was mailed to Alyssas current address
in Talent, Oregon. In July Alyssa filed a change of address
form, notifying the court that she had moved to San Ysidro,
California. The calendaring notice was re-sent to Alyssas
updated address on July 26.
The termination trial was held on August 9, 2006.
Alyssa failed to appear in person at trial. She briefly appeared
telephonically at the outset, announced that she was on vacation
in Mexico, and requested a continuance because she could not
participate from there. Superior Court Judge Eric Smith refused
to continue the trial yet again and advised Alyssa to obtain
another phone card and call back. Alyssa objected to the trial
proceeding without her, disconnected the call, and did not call
back.
At trial, a department social worker testified that
Alyssa had not had any contact with Jaclyn since February 2003
and had not completed a single element of the case plan for
reunification with Jaclyn. The social worker also explained that
because the daughter had bonded with her foster parents and was
thriving in her current placement, the departments permanent plan
was for the foster parents to adopt her.
An expert in clinical psychology testified that, based
on a review of Alyssas case history and other information, he
believed that Alyssa suffered from severe psychological problems,
that she was socially maladjusted, and that it would not be in
Jaclyns best interests to return the child to Alyssas custody.
The psychologist testified that, given Alyssas failure to live up
to her obligations as a parent and the daughters solid attachment
to her current parental figures, termination of Alyssas parental
rights was appropriate.
At the close of trial, the superior court found by
clear and convincing evidence that Alyssa had abandoned Jaclyn
because Alyssa had not worked on her case plan and refused all
services, had made only minimal efforts to communicate with
Jaclyn, and had not visited with her daughter for more than six
months.2 The court also found by clear and convincing evidence
that Alyssa suffered from a mental illness that would result in
substantial risk of harm to Jaclyn if the child were in her
custody.3 In addition, the court found by clear and convincing
evidence that Alyssa had not remedied the causes or conditions
that created the risk of harm to Jaclyn. The court further found
that the department had made reasonable efforts to reunite Alyssa
and her daughter, but that these efforts had failed because
Alyssa would not accept the departments repeated offers of
assistance. Last, the court determined that, given the childs
need for permanency, it was in the daughters best interests to
terminate Alyssas parental rights.
On September 5, 2006, the superior court issued its
final order terminating Alyssas parental rights.
Alyssa appeals.
III. DISCUSSION
A. Standard of Review
In order to terminate parental rights under AS
47.10.088, the superior court must find by clear and convincing
evidence that
(1) the child has been subjected to conduct
or conditions described in AS 47.10.011
[children in need of aid statute];
(2) the parent
(A) has not remedied the conduct
or conditions in the home that
place the child at substantial risk
of harm; or
(B) 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
(3) the department has complied with the
provisions of AS 47.10.086 concerning
reasonable efforts.[4]
The court must also find by a preponderance of the
evidence that termination of parental rights is in the childs
best interests.5
We review the factual findings underlying the superior
courts termination order for clear error and will reverse a
finding only if the record leaves us with a definite and firm
conviction that the superior court has made a mistake.6 Whether
the superior courts factual findings satisfy the requirements of
the CINA statutes and rules is a question of law that we review
de novo.7
B. Probable Cause Hearing, Adjudication, and Disposition
Alyssas first set of arguments relate to the
proceedings leading up to the order adjudicating Jaclyn a child
in need of aid, entered in October 2003.
1. Moot claims
Alyssa contends that the department acted illegally and
unreasonably when it twice took emergency custody of Jaclyn in
2002; that the department acted wrongfully by failing to provide
notice to the natural father before taking custody of Jaclyn;
that the superior court denied Alyssa due process by not
permitting her to call her mother as a witness at the probable
cause hearing; that the court violated her constitutional rights
when it found probable cause to believe that Jaclyn was a child
in need of aid; that the court erred in admitting hearsay
testimony at the probable cause hearing; and that it also erred
in overlooking evidence that Jaclyn was not a victim of abuse or
neglect.
Because Alyssas claims concerning the departments
decision to take custody of Jaclyn and the probable cause hearing
are moot in light of the superior courts later decision
adjudicating Jaclyn a child in need of aid, which we affirmed in
Alyssa B. I,8 we need not address these claims.9
2. ICWA claim
Alyssa claims that the superior court lacked
jurisdiction because Jaclyn is an Indian child under the Indian
Child Welfare Act (ICWA).10 She contends that ICWA applies
because Jaclyns father is a native Hawaiian. But the act defines
Indian tribe as any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible
for the services provided to Indians by the Secretary because of
their status as Indians, including any Alaska Native village.11
As the superior court correctly noted, native Hawaiians have not
yet been recognized by Congress as Indian tribes for the purposes
of applying ICWA.12 Accordingly, this claim lacks merit.
3. Jury trial at adjudication
Alyssa argues that the trial court improperly denied
her a jury trial at adjudication. We decided in Alyssa B. I that
there is no right to a jury trial in CINA proceedings.13 Our
decision controls here.
4. Psychological evaluation before adjudication
Alyssa contends that the trial court erred in ordering
her to undergo a psychological evaluation before adjudication.
We upheld the superior courts ruling on this point in Alyssa B.
I.14 There is no need to re-decide the point here.
5. Rule 60(b) claims
Alyssa argues that the trial court erred in failing to
grant her motion for relief from its judgment of adjudication
under Civil Rule 60(b)(4).15 It is not clear what Rule 60(b)
motion Alyssa refers to; it appears that her argument could
pertain to either of two filings. In September 2004 Alyssa filed
what appears to be a Rule 60(b)(4) motion, challenging the
departments decision to take custody of Jaclyn as an illegal
seizure in want of due process of law. Because this motion
apparently relates to the superior courts adjudication finding,
which we affirmed in Alyssa B. I, this issue is now moot.
Alternatively, Alyssas argument might pertain to a
document and proposed order she filed in May 2006, citing Rule
60(b)(4) & (6).16 This filing consists of a rambling thirty-two-
page affidavit that fails to discuss the civil rule and appears
to relate mostly to the departments initial decision to take
custody of Jaclyn, an issue that is now moot. Because the point
appears to be moot and Alyssas briefing presents no colorable
grounds for granting Rule 60(b)(4) relief, we find no merit to
her argument on this point.
6. Ineffective assistance of counsel at adjudication
Alyssa argues that the trial court erred in refusing to
grant her oral motion for a mistrial due to ineffective
assistance of counsel at the disposition and permanency hearing
following the superior courts order of adjudication. She claimed
in her motion that her attorney had ignored her requests to file
numerous motions on her behalf. The court declined to rule on
the motion, indicating that it would consider the matter at a
later time when it ruled on Alyssas appointed counsels request to
withdraw.
It does not appear from the record that the ineffective
assistance of counsel claim was addressed again. But regardless
of the superior courts decision on the matter, we conclude that
Alyssas claim fails on appeal because it is inadequately briefed.
Apart from her conclusory allegation of ineffective assistance of
counsel, Alyssa provides no facts or legal authority to support
her claim or otherwise enable meaningful appellate review.
C. Claims Related to Termination
Alyssas next set of arguments relate to the judicial
proceedings leading up to the termination order, entered in
September 2006.
1. Challenges to Judge Eric Smith
Alyssa argues that (1) the trial court erred in denying
her peremptory challenge to Judge Smith before the termination
trial; (2) Judge Smith erred in refusing to recuse himself for
cause; and (3) Judge Smith erred in refusing to dismiss the case
and disqualify himself due to an alleged pecuniary interest in
the matter and cooperative agreement with Alyssas adversaries.
Under Civil Rule 42(c), a judge or master may be
peremptorily challenged as a matter of right.17 But Civil Rule
42(c)(4) provides that a party waives this right to change a
judge if the party knowingly participates before that judge in
[a]ny judicial proceeding which concerns the merits of the action
and involves the consideration of evidence or of affidavits.18
Shortly after receiving notice that a petition of
termination had been filed and that a hearing on the petition had
been scheduled before Judge Smith, Alyssa filed a Notice of
Change of Judge, seeking to peremptorily challenge Judge Smith
from the case. In challenging Judge Smith after receiving notice
of the termination petition, Alyssa appears to have implicitly
viewed the termination proceeding as a separate proceeding from
the previous adjudication and disposition hearings in her case,
over which Judge Smith had presided. But this view misconstrues
the character of a termination proceeding.
As recognized by Alaskas CINA Rules, when the state
files a petition to terminate parental rights to a child who has
already been adjudicated a child in need of aid, [t]he
termination hearing is a disposition hearing to the court on the
question of whether the parental rights to [the] adjudicated
child in need of aid should be terminated.19 Hence, a termination
proceeding is simply a procedural continuation of the earlier
proceedings in the existing CINA case. And because it does not
initiate a new proceeding, the petition does not create the right
to a new peremptory challenge under Civil Rule 42(c).20
Accordingly, Alyssas time for exercising the peremptory challenge
to Judge Smith ran from the notice of his assignment in the
initial proceedings in the CINA case. That time had long
expired, and because Alyssa had knowingly participated in
previous judicial proceedings concerning the merits of that
action, she retained no right to peremptorily disqualify Judge
Smith under Rule 42(c) upon receiving notice that he would still
be handling the case after the state filed the petition to
terminate Alyssas parental rights.
Alyssas motion also sought to disqualify Judge Smith
for cause, alleging that he was biased.21 This claim lacks merit
because Alyssa fails to show that Judge Smith abused his
discretion in refusing to disqualify or recuse himself; she does
not establish that Judge Smith had either a conflict of interest
or bias against her. We also point out that Alyssas claim for an
independent judge was separately reviewed and denied by Superior
Court Judge John Suddock. Alyssa fails to establish any abuse of
discretion in Judge Suddocks ruling.
2. Jury trial at termination
Alyssa argues that the trial court erred in denying her
a jury trial at termination. We conclude that a jury trial is
not required in a termination hearing for the same reasons it is
not required in an adjudication hearing under Alyssa B. I.22
First, the Alaska Constitution only preserves a jury trial for
legal causes of action, not those which are equitable in nature,
and [c]hild protection cases have historically been treated as
matters of equity in Alaska.23 Second, there is no due process
right to a jury trial in CINA proceedings:
Although [t]he private interest of a parent
whose parental rights may be terminated . . .
is of the highest magnitude, this interest
must be balanced against the childs right to
an adequate home and education and the states
interest in the childs welfare. Judges are
well situated to make reliable findings in
CINA cases, given their knowledge of and
familiarity with the controlling law and the
prior proceedings of the case. As for the
governments interests, the department points
out that jury trials in CINA proceedings
could delay reunification or permanent
placement, reduce judicial economy, increase
the number of parents contesting adjudication
instead of attempting to reach an agreement,
and compromise the departments ability to
maximize its resources.[24]
We affirm the superior courts denial of a jury trial at
termination.
3. Ineffective assistance of counsel
Alyssa contends that she repeatedly requested that the
court appoint her new counsel. She maintains that her advisory
counsel, Laurel Bennett of the Palmer Public Defender Agency,
refused to give her legal advice or become familiar with the case
file; Alyssa goes so far as to argue that her advisory counsel
actively connive[d] at [her] defeat.
We have recognized that [a] parent has a due process
right to effective assistance of counsel in a termination of
parental rights proceeding.25 But Alyssa was not represented by
an attorney. Instead she elected to proceed pro se. The court
appointed an attorney to serve as Alyssas advisory counsel. In
S.B. v. State, we recognized that an advisory attorney appointed
to help an unrepresented litigant present a case pro se does not
serve the function of representing the litigant as an attorney.26
Accordingly, we held that pro se defendants ordinarily may not
raise claims of ineffective assistance against advisory counsel.27
We identified only one exception to this rule, stating that an
ineffective assistance claim could be raised when the advisory
counsel oversteps his limited role and assumes a degree of
control consistent with legal representation.28
Alyssa makes no claim that her advisory counsel
overstepped her bounds and took control of the case.29 Because
Alyssas complaint is that the public defender did too little, and
not too much, she therefore does not fall under the exception to
the rule. As we put it in S.B., from the moment she decided to
represent herself she lost the right to claim that any subsequent
acts of advisory counsel constituted ineffective assistance.30
4. Due process rights
a. Conducting termination trial without her
Alyssa argues that the trial court violated her due
process rights by conducting the termination trial in her absence
and over her objection. She claims that she was unable to
proceed with the termination trial due to [her] situation and
that she was not given sufficient notice to appear.
Whether a parents due process rights were violated in a
termination proceeding is a question of law that we review de
novo.31 We set out the test for determining the requirements of
due process in CINA proceedings in D.M. v. State:
[I]dentification of the specific dictates of
due process generally requires consideration
of three distinct factors: First, the private
interest that will be affected by the
official action; second, the risk of an
erroneous deprivation of such interest
through the procedures used, and the probable
value, if any, of additional or substitute
procedural safeguards; and, finally, the
Governments interest, including the function
involved and the fiscal and administrative
burdens that the additional or substitute
procedural requirement would entail.[32]
In this case, Alyssas private interest affected by the
official action is of great importance: parental rights are of
the highest order. 33 As to the second factor, [t]he crux of due
process is [the] opportunity to be heard and the right to
adequately represent ones interests. The provision of adequate
notice commonly guarantees these rights.34 The state maintains
that the superior court took ample measures to provide Alyssa
with adequate notice of the upcoming termination trial. Though
Alyssa claimed at the beginning of trial that she had only
received notice a week before the trial date, the record shows
that the court made multiple attempts to provide her with notice.
At trial, Judge Smith discussed the courts efforts to notify
Alyssa:
I double checked the log notes, and [Alyssa]
was called while the motion for me to recuse
myself was pending in front of Judge Suddock
and so she was called and told basically well
be in touch. And then we had a hearing the
following week [May 18] and at that hearing
we had a new address for [Alyssa], Mr.
Winterrowd was there, we had a new address
for [Alyssa], we didnt have a phone number
for her. And so we didnt call her that day,
but the notice of the hearing was sent out to
her right after that to her address in
Oregon. She then moved, and the address was
sent and July 25th we got a notice that she
was in California, and staff immediately sent
the notice of hearing on July 25th, so she
actually had quite a bit of notice that this
hearing was happening . . . . And she spoke
with Cindy Holtmann at some point after that,
and Ms. Holtmann told her again when the
hearing was.
The due process analysis in this case requires
consideration of the governments interest that the termination
trial proceed as scheduled. Under CINA Rule 18(e), a trial on a
petition to terminate parental rights must be held within six
months after the date on which the petition is filed, unless the
court finds good cause is shown for a continuance.35 When
determining whether to grant a continuance for good cause, the
court must consider the age of the child and the potential
adverse effect that the delay may have on the child.36 Here, the
termination petition was filed on March 23, 2005, yet the trial
was not held until August 9, 2006 over sixteen months later.
As the state points out, the delay in trial was caused
by Alyssas numerous motions to dismiss the case and disqualify
the judge, requests to change court-appointed attorneys and
advisory counsel, and appeals from trial court rulings.37 The
superior court accordingly made an express finding that Alyssas
failure to appear at trial was yet another attempt to delay the
proceedings: [M]y finding is that [Alyssas] effort today to
continue this yet again is just an ongoing effort to delay this
trial . . . and at this point I find that it is not appropriate
or in the best interests of this child that we delay it any more
and that theres absolutely no good cause to continue this trial
yet again. The superior courts finding that Alyssa was
deliberately avoiding trial demonstrates that extraordinary
circumstances existed so that it was not improper for the trial
court to proceed with the trial without Alyssas participation.
Furthermore, we also call attention to the interests of
Jaclyn, which are of paramount importance. Jaclyn was last
removed from Alyssas custody in May 2002, when she was one and a
half months old, and apart from a brief period spent in the
custody of her father, has been in foster homes for all of her
life. The superior court found at trial that the child needed
permanency in the worst way. The court also found that the child
was in a good setting with foster parents who wanted to adopt her
and it determined that denying the termination petition would put
the child in an unsettled situation. The superior court thus
correctly recognized that if Alyssa caused the termination trial
to be delayed yet again, Jaclyns interests would have been
seriously harmed.
Given the circumstances created by Alyssa herself, we
do not see any additional or substitute procedural safeguards
the superior court could have taken to guarantee Alyssas presence
at trial. The court kept updated records of Alyssas address, it
sent notice of the trial to her at two separate addresses with
the last notice being sent more than two weeks before the trial
date, and it informed her again of the trial date when she spoke
with court personnel via telephone. It was Alyssas choice to
waive her right to appointed counsel, to be on vacation in
Mexico, and to refuse to participate telephonically at the trial.
Taking these facts into account along with the states and the
childs strong interests in expeditiously finding a permanent
home, we conclude that Alyssa was not deprived of procedural due
process when the trial court held the termination trial without
her.
b. Calling witnesses at trial
In addition, as part of her claim that her rights were
violated when the court conducted the trial without her, Alyssa
argues that she was improperly prevented from calling witnesses
at trial.38
Because we have concluded that it was proper for the
trial court to proceed in Alyssas absence after she voluntarily
failed to appear, it follows that she cannot complain of
prejudice she suffered by losing testimony that she could have
presented if she had chosen to be present at trial. Moreover,
although Alyssa names the various witnesses she would have
called, she provides nothing to indicate that they would have
given testimony materially disputing the issues at trial. The
psychologist who screened Alyssa for depression, for instance,
expressly disclaimed the evaluations relevance to child custody,
insisting that the evaluation did not cover Alyssas parenting or
custody issues.
5. Hearsay in the final order
Alyssa argues that the trial court erred by
incorporating previous hearsay testimony into its final order
terminating her parental rights. But she does not specify what
previous testimony was used in error. The department suggests
that Alyssa is challenging the termination orders language
incorporating findings based on testimony presented at the
adjudication.
At the termination stage, a trial court may rely on
findings entered at the adjudication stage when they are made by
clear and convincing evidence.39 Here there is no indication that
the superior court admitted hearsay testimony at the adjudication
hearing Alyssa gives no examples of the testimony that she
characterizes as hearsay and does not point to any objections to
such evidence raised at the hearing on adjudication. Because
Judge Smith found by clear and convincing evidence that Jaclyn
was a child in need of aid at the adjudication hearing and
because Alyssa has failed to point out any inadmissible hearsay
in the adjudication findings, we find no error in the superior
courts reliance on those findings in its final order of
termination.
6. Alyssas documentary evidence
Alyssa alleges that she submitted four psychological
evaluations to the court indicating that she did not have a
mental illness. She claims that the court ignored those
evaluations and failed to acknowledge that she completed her case
plan.
It is only apparent from the record that Alyssa
submitted two documents to the department containing
psychological information. One document was a brief, handwritten
progress report prepared by an unidentified psychologist on
December 4, 2003. It does not appear to set out any formal
diagnosis. The second document was a psychological evaluation
from Dr. Anita Kemp, who Alyssa claimed was going to testify at
trial on her behalf. Dr. Kemps evaluation stated that there was
no current evidence that Alyssa suffered from depression.
The superior court did not ignore Dr. Kemps evaluation,
but rather found it to be unreliable for several reasons. First,
Alyssa had not advised the department before the evaluation so
that it could communicate with Dr. Kemp about the purposes of the
evaluation and provide the doctor with collateral information.
Second, the court found that Alyssa had thoroughly misled Dr.
Kemp by circling zero for every indicator of depression and
mental illness when Dr. Kemp evaluated her. And finally, during
the trial, the state published into the record a more recent
letter from Dr. Kemp stating that her earlier evaluation was not
applicable in a matter of child custody because Dr. Kemp did not
cover Alyssas parenting or custody issues during the evaluation.
We have consistently held that it is the role of the
trial court, and not this court, to judge the credibility of any
witnesses and to weigh conflicting evidence.40 Because the record
showed that Dr. Kemps evaluation was not fully informed and was
not directed to the custody issue, the superior court could
properly discount the evaluation and give more weight instead to
the testimony of the departments expert psychologist, who
testified that Alyssa suffered from severe psychological
problems.
7. Placement with blood relatives
Alyssa argues that the superior court erred by denying
her requests to place Jaclyn with blood relatives. The record
shows that on July 25, 2005, Alyssa filed six motions seeking to
place Jaclyn with various blood relatives under AS 47.14.100(e).41
The superior court denied the motions. Alyssa did not seek
review of the courts ruling at the time it was made. There is
currently no need to consider the placement decision, because the
superior courts termination order now renders earlier issues of
placement moot.42 Accordingly, we decline to decide this claim.
8. Request to change foster placement
Alyssa claims that she made many motions to remove
Jaclyn from abusive foster homes but those motions were ignored
by the court. On June 15, 2005, Alyssa moved for a placement
review hearing to determine the best interests of Jaclyn,
alleging that the state had placed the child in several foster
homes where she had been physically and potentially sexually
abused. On July 11, 2005, the superior court denied the motion.
Because the denial was a final, appealable order, Alyssa was
required to file a timely appeal in order to preserve this issue
for appellate review.43 Since she did not timely appeal the
order,44 we decline to consider the issue here.
9. Hearsay and opinion testimony at trial
Alyssa also contends that the court wrongly allowed the
states witnesses to provide hearsay and opinion testimony at the
termination trial. This section of Alyssas brief consists of two
sentences and provides no citations to the trial log notes for
examples of impermissible hearsay or opinion testimony.
Given Alyssas failure to identify any inadmissible
hearsay, the state plausibly suggests that Alyssa objects to the
testimony of the departments expert psychologist, Dr. Michael
Rose. Dr. Rose testified after reviewing various records that,
in his opinion, Alyssa suffered from severe psychological
problems, and awarding custody to her would place Jaclyn at risk
of harm. The state argues that Dr. Rose was qualified to offer
his opinion as an expert in clinical psychology; it points out
that Dr. Rose testified that it was customary for an expert in
his field to rely on the types of documents he used in forming
his opinion. Accordingly, the state contends, his testimony was
explicitly allowed under Evidence Rules 702 and 703.45
The states position has merit. Under Evidence Rules
702 and 703, Dr. Roses testimony did not involve inadmissible
hearsay it was admissible as expert scientific opinion. Because
Alyssa identifies no other evidence addressed in her hearsay
claim, we conclude that her claim lacks merit.
D. Termination Based on Alyssas Mental Illness
Alyssa argues that the superior court improperly used
her past or present or future mental illness to terminate [her]
parental rights. She relies on our statement in V.S.B. v. State
that [m]ental illness, absent related conduct, cannot be a basis
for termination of parental rights.46
We first observe that the departments petition for
termination was based on the grounds that Jaclyn was a child in
need of aid under five separate provisions of Alaska law: AS
47.10.011(1), (6), (8)(B)(i), (9), and (11).47 At the conclusion
of the trial, the superior court found by clear and convincing
evidence that Jaclyn was a child in need of aid under two
alternative grounds: Alyssas mental illness under
AS 47.10.011(11) and Alyssas abandonment of Jaclyn under AS
47.10.011(1). Because either finding alone would support the
termination order and because Alyssa does not challenge the
courts finding of abandonment, her challenge to the mental
illness finding has no impact on the outcome of the case.
In any event, we conclude that Alyssas argument
regarding mental illness lacks merit, since the trial court did
not terminate her parental rights merely because she suffered
from a mental illness. Although the expert testimony at trial
certainly supported the conclusion that Alyssa suffered from
chronic depression and borderline personality disorder, the
superior court did not ground its termination order on these
signs of mental illness alone. Instead, the court relied on
specific conduct by Alyssa that would continue to place Jaclyn at
risk if she were placed in Alyssas custody: Alyssas complete
refusal to work with the department and her consequent failure to
develop any attachment or bond with Jaclyn in the three years
since Jaclyns birth. The court emphasized that Alyssa also
refused to get psychological treatment and had not taken the
first step of obtaining a valid psychological evaluation in
accordance with her case plan. And it further found that Alyssa
was completely unable to cooperate with authority figures,
expressing concern that she would not be able or willing to get
adequate help for Jaclyn if the child needed it for medical or
other problems.
We conclude that the superior court adequately combined
the finding that Alyssa suffered from a mental illness to
evidence of actual, conduct-based problems creating a risk of
substantial harm to Jaclyn. Because the courts decision to
terminate Alyssas parental rights was not based on her mental
illness alone, we affirm the superior courts ruling that Jaclyn
was a child in need of aid under AS 47.10.011(11).
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts order
terminating Alyssas parental rights to Jaclyn.
_______________________________
1 Alyssa B. is a pseudonym that we used in a previous
appeal in this case, Alyssa B. v. State, Dept of Health & Soc.
Servs. (Alyssa B. I), 123 P.3d 646 (Alaska 2005). Jaclyn is a
pseudonym we used in another related appeal, Brynna B. v. State,
Dept of Health & Soc. Servs., 88 P.3d 527 (Alaska 2004).
2 See AS 47.10.011(1).
3 See AS 47.10.011(11).
4 AS 47.10.088(a).
5 CINA Rule 18(c)(2)(C); AS 47.10.088(b), (c).
6 Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska
2005).
7 Id. (citing D.M. v. State, DFYS, 995 P.2d 205, 207
(Alaska 2000)).
8 Alyssa B. I, 123 P.3d at 651.
9 We have held that [a] claim is moot where a decision on
the issue is no longer relevant to resolving the litigation, or
where it has lost its character as a present, live controversy,
that is, where a party bringing the action would not be entitled
to any relief even if he or she prevailed. Clark v. State, Dept
of Corr., 156 P.3d 384, 387 (Alaska 2007) (quoting Municipality
of Anchorage v. Baxley, 946 P.2d 894, 899 (Alaska App. 1997) and
citing Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328,
1329 n.2 (Alaska 1995)).
10 See 25 U.S.C. 1911(b) (2007) (stating that [i]n any
State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian childs tribe,
the court, in the absence of good cause to the contrary, shall
transfer such proceeding to the jurisdiction of the tribe).
11 25 U.S.C. 1903(8).
12 See Arakaki v. Lingle, 477 F.3d 1048, 1066-68 (9th Cir.
2007) (observing that Congress and the executive do not yet
recognize Hawaiians as federal Indian tribes); Kahawaiolaa v.
Norton, 386 F.3d 1271, 1276, 1282 (9th Cir. 2004) (noting that
Congress has dealt with Hawaiians differently than Indian
tribes).
13 Alyssa B. I, 123 P.3d at 648-49.
14 Id. at 650-51.
15 Alaska R. Civ. P. 60(b)(4) provides: On motion and upon
such terms as are just, the court may relieve a party or a partys
legal representative from a final judgment, order, or proceeding
for the following reasons: . . . (4) the judgment is void.
16 Alaska R. Civ. P. 60(b)(6) provides: On motion and upon
such terms as are just, the court may relieve a party or a partys
legal representative from a final judgment, order, or proceeding
for the following reasons: . . . (6) any other reason justifying
relief from the operation of the judgment.
17 Alaska R. Civ. P. 42(c)(1) provides in relevant part:
In all courts of the state, a judge or master may be peremptorily
challenged as follows: . . . In an action pending in the Superior
or District Courts, each side is entitled as a matter of right to
a change of one judge and of one master.
18 Alaska R. Civ. P. 42(c)(4)(i). The interpretation and
application of the right to a change of judge under Rule 42(c) is
a question of law that we review de novo. Cook v. Rowland, 49
P.3d 262, 264 (Alaska 2002) (citing Barber v. Barber, 915 P.2d
1204, 1208 n.8 (Alaska 1996) and Staso v. State, Dept of Transp.,
895 P.2d 988, 990 (Alaska 1995)).
19 CINA Rule 18(b).
20 For this reason, as is typical in this procedural
setting, Alyssas termination petition was filed under the same
case number as the original CINA case, not under a new docket
number. Cf. Staso, 895 P.2d at 990 (holding that [a] refiled
suit, which is assigned a new docket number, for which new filing
fees are imposed, and for which new process must issue, provides
this necessary bright-line for determining whether there is a new
right under Civil Rule 42(c) to disqualify an assigned judge).
21 We review for abuse of discretion a trial courts
decision on an issue of recusal or a motion to disqualify a
judge. Carr v. Carr, 152 P.3d 450, 458 (Alaska 2007); Wasserman
v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002). We will
reverse a judges refusal to step down from a case only when it
appears patently unreasonable or when a fair-minded person could
not rationally come to [the same] conclusion on the basis of
known facts. Carr, 152 P.3d at 458 (alteration in original)
(quoting Long v. Long, 816 P.2d 145, 156 (Alaska 1991)).
22 See Alyssa B. I, 123 P.3d at 648-50.
23 Id. at 648.
24 Id. at 649-50 (alteration in original) (internal
quotation marks and citations omitted).
25 Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska
2004) (citing S.B. v. State, Dept of Health & Soc. Servs., DFYS,
61 P.3d 6, 10 (Alaska 2002)).
26 S.B., 61 P.3d at 15.
27 Id. (citing Downey v. People, 25 P.3d 1200, 1203 (Colo.
2001)).
28 Id. (citing Downey, 25 P.3d at 1204).
29 A review of the record confirms that the public
defenders conduct at the termination trial did not rise to the
level of active representation near the end of trial, the public
defender noted her limited role as advisory counsel and merely
restated Alyssas position that she was against termination.
30 S.B., 61 P.3d at 15.
31 Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska
2005).
32 D.M. v. State, DFYS, 995 P.2d 205, 212 (Alaska 2000)
(quoting Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)).
33 Id. (quoting In re J.L.F. & K.W.F., 828 P.2d 166, 170
(Alaska 1992), overruled on other grounds by In re S.A., 912 P.2d
1235, 1241 (Alaska 1996)).
34 Id. at 213-14 (quoting Matanuska Maid, Inc. v. State,
620 P.2d 182, 192 (Alaska 1980)).
35 CINA Rule 18(e).
36 Id.
37 Alyssa made the following filings after the states
termination petition was filed: May 2, 2005 Motion to Dismiss and
Grant Sole Legal and Physical Custody to Natural Mother; May 2,
2005 Notice of Change of Judge (Peremptory Challenge:
Disqualification of Judge); May 13, 2005 Expedited Motion to Stay
CINA Trial Court Proceedings Pending Appeal; May 23, 2005
Expedited Motion for Continuance; May 31, 2005 Motion to
Disqualify Judge Eric Smith and Demand for an Evidentiary
Hearing; June 6, 2005 Petition to Terminate States Custody and
Demand for an Evidentiary Hearing; June 6, 2005 Motion to Dismiss
and Demand for a Misconduct Hearing; June 20, 2005 Motion to
Compel GAL; June 28, 2005 Reply to Opposition to Motion to
Disqualify Judge Eric Smith and Demand for an Evidentiary
Hearing; July 5, 2005 Motion to Dismiss and Grant Sole Legal and
Physical Custody to Natural Father; July 12, 2005 Motion to
Strike the Petition for Termination of Parental Rights; July 19,
2005 Reply to Opposition to Petition to Terminate States Custody
and Demand for an Evidentiary Hearing and Motion to Dismiss and
Demand for a Misconduct Hearing; July 25, 2005 Motion for
Placement of [Daughter] with Blood Relative; November 10, 2005
Withdrawal of Request for Court Appointed Attorney; December 23,
2005 Expedited Motion for Continuance and an Extension of Time;
February 16, 2006 Expedited Motion for Stay [of] the Termination
Trial; February 17, 2006 Motion to Dismiss; February 17, 2006
Demand for Jurisdictional Hearing; April 11, 2006 Expedited
Motion for Default Judgment; April 17, 2006 Motion for
Independent Judge and Motion to Dismiss; April 17, 2006 Expedited
Demand for an Evidentiary Hearing Before an Independent Judge;
April 21, 2006 Objection and Reply to Response to Motion to
Dismiss and Demand for Jurisdictional Hearing and Objection to
Motions to Accept Late-Filed Responses; May 8, 2006 Motion for
Reconsideration and Demand for an Evidentiary Hearing; and May
11, 2006 Motion of [Alyssa] in support of Order.
38 Alyssa claims that she had served subpoenas on an
assistant attorney general, her public defender advisory counsel,
and the guardian ad litem in order for them to testify as hostile
witnesses about their cooperative agreements for gaining custody
of Alyssas child. She also claims that a psychologist who
evaluated her, and Judge Julie Macek of Montana, who found that
Alyssa did not have a serious mental illness and therefore
ordered the state of Montana to return Alyssas son to her
custody, would have testified on her behalf had she been present.
39 D.M., 995 P.2d at 209.
40 Martin v. Coastal Vills. Region Fund, 156 P.3d 1121,
1129 (Alaska 2007) (citing Silvan v. Alcina, 105 P.3d 117, 122
(Alaska 2005)).
41 AS 47.14.100(e) provides in part that:
(e) When a child is removed from a parents
home, the department shall place the child,
in the absence of clear and convincing
evidence of good cause to the contrary,
(1) in the least restrictive setting that
most closely approximates a family and that
meets the childs special needs, if any;
(2) within reasonable proximity to the
childs home, taking into account any special
needs of the child and the preferences of the
child or parent;
(3) with, in the following order of
preference,
(A) an adult family member[.]
42 Erica A. v. State, Dept of Health & Soc. Servs., DFYS,
66 P.3d 1, 10 (Alaska 2003); see also Martin N. v. State, Dept of
Health & Soc. Servs., DFYS, 79 P.3d 50, 57 (Alaska 2003).
43 See Owen M. v. State, OCS, 120 P.3d 201, 203 (Alaska
2005) (citing S.S.M. v. State, Dept of Health & Soc. Servs.,
DFYS, 3 P.3d 342, 345 (Alaska 2000) (holding order denying
placement of child in need of aid with his sister was final,
appealable order)).
44 See Alaska R. App. P. 204(a)(1).
45 Alaska R. Evid. 702(a) provides:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
Alaska R. Evid. 703 provides:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to
the expert at or before the hearing. Facts
or data need not be admissible in evidence,
but must be of a type reasonably relied upon
by experts in the particular field in forming
opinions or inferences upon the subject.
46 V.S.B. v. State, Dept of Health & Soc. Servs., DFYS, 45
P.3d 1198, 1206 n.22 (Alaska 2002).
47 AS 47.10.011 provides in relevant part:
Subject to AS 47.10.019, the court may find a
child to be a child in need of aid if it
finds by a preponderance of the evidence that
the child has been subjected to any of the
following:
(1) a parent or guardian has abandoned the
child as described in AS 47.10.013, and the
other parent is absent or has committed
conduct or created conditions that cause the
child to be a child in need of aid under this
chapter;
. . . .
(6) the child has suffered substantial
physical harm, or there is a substantial risk
that the child will suffer substantial
physical harm, as a result of conduct by or
conditions created by the childs parent,
guardian, or custodian or by the failure of
the parent, guardian, or custodian to
supervise the child adequately;
. . . .
(8) conduct by or conditions created by the
parent, guardian, or custodian have
. . . .
(B) placed the child at substantial risk of
mental injury as a result of
(i) a pattern of rejecting, terrorizing,
ignoring, isolating, or corrupting behavior
that would, if continued, result in mental
injury;
. . . .
(9) conduct by or conditions created by the
parent, guardian, or custodian have subjected
the child or another child in the same
household to neglect;
. . . .
(11) the parent, guardian, or custodian has a
mental illness, serious emotional
disturbance, or mental deficiency of a nature
and duration that places the child at
substantial risk of physical harm or mental
injury[.]
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