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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Seth D. v. State, Dept of Health & Social Services, Office of Children's Services (01/17/2008) sp-6226
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
| SETH D., | ) |
| ) Supreme Court No. S- 12621 | |
| Appellant, | ) |
| ) Superior Court No. 3KN-03-18A CP | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) No. 6226 January 17, 2008 |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: George J. Dozier, Jr., Eagle
River, for Appellant. Megan R. Webb,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Appellee. Devinder Brar, Anchorage, for
Guardian Ad Litem Shelly Wilson-Schoessler.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
FABE, Chief Justice, with whom CARPENETI,
Justice, joins, concurring.
I. INTRODUCTION
A father who was a state prisoner asked to be
transported so he could attend the trial on the states petition
to terminate his parental rights. The superior court denied his
requests and, following a six-day trial, terminated his parental
rights. He argues here that denying his motion was both an abuse
of discretion and a denial of procedural due process. He also
argues that it was error to terminate his parental rights.
Because he participated telephonically the first four days of
trial, personally attended the last two days, and testified in
person, there was no deprivation of due process. And because he
testified in person and was given an adequate opportunity to
participate and confer telephonically with his lawyer during the
first four days of trial, any possible error in applying AS
33.30.081 was harmless. We also conclude that the superior court
did not commit clear error in terminating the fathers parental
rights. We therefore affirm.
II. FACTS AND PROCEEDINGS
Lacey D. is the daughter of Seth and Tiffany D.1 She
was born in January 2001.2
The Alaska Office of Childrens Services (OCS) first
received a report of harm regarding Lacey in June 2002 but closed
its file because the family could not be located. When it
received a second report of harm in December 2002, OCS located
Seth and Tiffany and conducted a home visit to their apartment.
During the visit, the social worker found a marijuana grow
operation in the apartment. OCS consequently requested that Seth
be tested for illegal substance use. The results were positive.
OCS therefore recommended that Seth participate in substance
abuse treatment and prepared a care and safety plan. He refused
to comply with OCSs recommendation and only engaged with OCS
through counsel.
In February 2003 OCS requested a temporary custody
hearing. After a hearing the superior court entered a temporary
custody order, finding that there was probable cause to believe
Lacey was a child in need of aid under AS 47.10.011(6), (9), and
(10). The court granted OCS temporary custody; OCS then allowed
Lacey to remain in Seths care.
In July 2003 Seth stipulated that Lacey was a child in
need of aid pursuant to AS 47.10.011(1) and (10) for the reasons
stated in the petition for adjudication filed in February 2003.
The superior court adopted the stipulation the same day Seth
signed it.
Seth began a new plan with OCS in September 2003.
Lacey was still in his physical custody and they appeared to be
healthy, happy, and well-bonded.
Seth was jailed in November 2003 for violating the
terms of his probation by testing positive for illegal
substances, and Lacey was removed from his custody. OCS briefly
placed Lacey with her maternal grandmother before placing her in
foster care in Kenai. In November 2003, following a November 25
hearing, the superior court granted OCS custody of Lacey for up
to two years.
In April 2004, after Seths release from jail, Lacey was
placed with Seth to begin trial home visits. The placement
seemed acceptable to the social worker, but while Lacey was in
Seths physical custody he was twice charged with shoplifting; he
missed his arraignment on one of the charges, and a warrant was
issued for his arrest.
Seth was arrested in August 2004 while Lacey was
present. The arresting officer thought he appeared to be very
high. Tiffany was also arrested at this time. Lacey reacted to
seeing her father in handcuffs and her mothers arrest by
screaming, crying, acting frantic, and pleading with the officers
not to arrest her mother.3 When arrested Seth possessed
prescription morphine pills that had not been prescribed to him.
Lacey was removed from Seths custody in August 2004.
OCS filed a petition in February 2005 to terminate
Seths parental rights. It amended the petition about a year
later. Trial was scheduled for the week of August 7, 2006.
Seth, who was then a prisoner of the State of Alaska,
filed a mid-July 2006 motion asking that he be transported to the
parental-rights termination trial so he could attend the trial
and testify.4 The court denied the motion on August 1. Seth
gave additional reasons for his motion on the first morning of
trial. The superior court again denied the motion. Trial was
conducted over six days, on August 7, 8, 10, 11, and September 7
and 8, 2006. Seth remained incarcerated until mid-August 2006.
He participated telephonically from jail the first four days of
trial and was physically present the last two. Twenty-four
witnesses, including Seth himself, testified.
Following trial, the superior court found that Lacey
was a child in need of aid under AS 47.10.011(1), (8), and (10).5
The superior court also found that Seth had not remedied the
conduct or conditions that put Lacey at substantial risk of harm,
that OCS had complied with the reasonable effort requirements of
AS 47.10.086, and that it was in Laceys best interests to
terminate Seths parental rights. The court also made findings
justifying the termination of Tiffanys parental rights. The
court then ordered Seth and Tiffanys parental rights terminated.
Seth appeals.6
III. DISCUSSION
A. Standard of Review
We review decisions regarding the telephonic trial or
hearing appearance of a party for abuse of discretion.7 We
review de novo whether a decision requiring a parent who is a
state prisoner to participate telephonically rather than be
transported violates his right to due process.8 We will reverse
the factual findings of the superior court in a parental rights
termination case only when they are clearly erroneous, a standard
met only if we are left with a definite and firm conviction that
a mistake has been made after review of the entire record.9 When
reviewing factual findings, we view the evidence in the light
most favorable to the party prevailing below.10 Whether the trial
courts findings are consistent with the child-in-need-of-aid
statutes is a question of law that we review de novo.11 We bear
in mind at all times that terminating parental rights is a
drastic measure.12
B. The Superior Court Did Not Violate Seths Right to Due
Process by Denying His Motion for Transport.
Seth argues that he was denied his due process right to
be present in the courtroom throughout the trial by the superior
courts denial of his motion for transport.13 He first asked about
three weeks before trial was to begin to be present at trial so
he could testify in person as well as hear the witnesses and see
the evidence. He next asked at the beginning of the first day of
trial to be transported so he could hear the witnesses and see
the evidence himself because he has a learning disability.
There was no violation of Seths due process rights on
the first ground he raised attendance so he could testify in
person and the court could assess his credibility because he did
in fact testify in person at trial after his incarceration ended
mid-way through the trial. Similarly, any possible error in
failing to grant Seths motion to transport so he could testify in
person was also harmless.14
Seths second argument for transport, made on the first
day of trial, advanced a new theory. It was founded on his
assertion that a learning disability made his personal attendance
necessary so he could hear the witnesses and see the evidence.
We have stated that case law has not established a
procedural due process right of incarcerated parents to be
transported to parental rights termination trials.15 In Richard
B. v. State, Department of Health & Social Services, Division of
Family and Youth Services16 we refused to extend the holding of
Whitesides v. State, Department of Public Safety, Division of
Motor Vehicles17 to termination trials. In Richard B. we
distinguished Whitesides, stating [i]n Whitesides we considered
whether a hearing officer must permit an individual to appear in
person for a hearing whereas in a termination hearing we are
asked to decide whether the state should be required to transport
a prisoner across the state for a trial.18
Although transportation of an incarcerated parent to
attend a termination trial is not required by due process, we
have applied the balancing test of Mathews v. Eldridge to
determine whether a parent was deprived due process in a
termination hearing.19 That test requires the court to consider:
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.[20]
We now consider the three factors.
Interest of a parent. Seth correctly points out that
the right to the care and custody of ones own child is a
fundamental right recognized by both the federal and state
constitutions.21 This right is one of the most basic of all civil
liberties.22 The right to custody of ones own child clearly falls
within the protections of the due process clause and should be
accorded significant weight.23
The risk of wrongful deprivation. Seth argues that
there was a high risk of an erroneous decision because his
ability to participate was undermined by his mental handicap.
Seth contends he suffers from a lack of verbal comprehension, and
points to his trial testimony that he does not understand
vocabulary and that he struggles with comprehension because
theres no vocabulary that breaks down those words.24 Seth argues
here that [h]ad he been present and sitting with his attorney he
could have cleared up any questions regarding the testimony by
simply asking his attorney for an explanation.
The state contends that the evidence shows that Seths
learning disability is not auditory in nature, implying that his
disability did not prejudice his telephonic trial participation.
The state also points out that a previous test placed Seths IQ in
the normal range;25 that trial testimony is consistent with the
contention that Seths learning disability was related to reading
comprehension but that he has no problems with understanding
information if someone reads aloud to him; and that there was no
evidence or representation before or during Seths telephonic
participation at trial that Seth could not understand the trial
events and evidence being presented.
We have held that an individuals due process right to
confront and cross-examine witnesses was not denied when he
participated telephonically.26 Furthermore, even assuming Seths
disability extends to verbal comprehension, Seth fails to show
how the trial would have been different had he been sitting next
to his attorney. There is no evidence that Seth could not
understand the trial. At no point during his telephonic
participation did Seth assert that he was having trouble
understanding the information presented.27
The interest of the government. The primary government
interests involved are the costs and administrative burden of
transporting a prisoner to trial. In opposing Seths motion for
transport the Alaska Department of Corrections (DOC) discussed
the cost of transport and asserted that transporting Seth from
Seward to Kenai and back would cause an unnecessary expenditure
of state resources because it would require the presence of
understaffed judicial services officers, which could cause delay
in other trials and require overtime pay.
Seth argues that due process was not met because the
case involved a fundamental right, his learning disability
required his presence in the courtroom, and the administrative
costs were negligible.
We must weigh the interests at stake along with the
benefits and burdens that would result from implementing the
proposed rule.28 Balancing the factors, we conclude that Seths
right to due process was not violated. Even though the DOCs
showing of cost and burden associated with transporting Seth was
remarkably nonspecific and conclusory, and even though the trial
and procedure undoubtedly implicated Seths fundamental rights, he
has failed to show on appeal how the risk of infringing on his
rights could have been assuaged by his personal presence for the
first four days of trial.29
C. The Superior Court Did Not Abuse Its Discretion in
Denying Seths Request To Attend the Parental Rights
Termination Trial.
Seth also argues the superior court abused its
discretion by refusing to order his transport to trial. On
appeal, Seth argues that the state failed to present evidence of
the actual costs of transportation, that Seths physical
attendance would not have presented a substantial risk of danger,
that the issues involved in trial were of the utmost
significance, that the court failed to continue the trial, and
that the need for [Seths] personal attendance was of the highest
order because telephonic participation failed to protect his
interest in light of his learning disability. Seth argues that
the court could not actually assess the costs of transport
because the state failed to provided detailed financial
information about the costs.
It is important to keep the sequence of Seths arguments
in mind.
Need to testify. Seths pretrial motion for transport
argued that he needed to be present to testify. This basis for
relief was satisfied when Seth personally attended the last two
days of trial and testified live. Any error in failing to grant
the motion on this basis was therefore harmless. We note,
however, that this basis would have made denial problematic had
Seth not been fortuitously released from prison mid-trial.
Learning disability. The trial court denied Seths
motion for transport and explained its decision on the first day
of trial. Responding to this ruling, Seth argued that his
presence was necessary because he had a learning disability that
would make it more difficult for him to understand and process
information without being present at trial to talk to counsel.
Seth broadly suggested that evidence would support this assertion
but presented no evidence then or later to confirm this alleged
disability or to suggest how trial would be different if he were
present.
Responding to the learning disability arguments, the
court ruled that telephonic participation was adequate for a
fair trial. The court also told counsel that:
Ill do anything that I can to make it easier
for you. If you need a break to stop and
talk with your client, well do that, you
know, shut things down and give you a place
where you can talk to [your client]
privately. Well do whatever we can to
accommodate this less than perfect situation.
Only later in the trial did Seth explain that his
learning disability arose out of either auditory problems or a
failure to understand words, making it necessary for him to
attend trial. Because Seth had not raised that contention
earlier, it was not before the court on the first day of trial,
when Seth last renewed his request for transportation. Based on
what the superior court heard before testimony began on the first
day of trial, the court could have justifiably thought that the
telephonic-attendance procedure it adopted including the
availability of breaks to confer with counsel was sufficient to
allow Seth to be an active participant.30 The court did not abuse
its discretion in denying Seths renewed request for transport on
the first day of trial.
Assist counsel. On appeal Seth also argues he needed
to be present to assist counsel during trial. He first offered
this explanation on the first day of trial, but he failed to
demonstrate that his physical presence was needed at the trial to
assist his attorney. The superior court gave him the opportunity
to confer with counsel by telephone. We therefore conclude that
the superior court did not abuse its discretion in denying Seths
motion to transport.
Even though we have concluded that Seth was not denied
due process and that the trial court did not abuse its statutory
discretion, this case illuminates potential problems concerning
the transportation statute31 and a parents due process right to
testify at a termination trial. As we saw above, due process
guarantees apply to termination proceedings. Parents have a
fundamental right to the care and custody of their children and
this right does not immediately cease when a parent is
incarcerated. When applied to termination proceedings, the
transportation statute, AS 33.30.081(f), appears to provide a
reasonable balance between a parents interests in being present
at a termination proceeding and the states interests in dealing
with state prisoners. The statutory standards, if rigorously
followed, seem likely to satisfy due process.
If a parent wishes to testify at a termination trial,
the state must present sufficient specific evidence allowing the
superior court to decide knowledgeably whether to grant a motion
for transport made under AS 33.30.081.32 Here DOCs entire
analysis of the dispute was contained in one paragraph of its
opposition to Seths motion to transport:
[Seths] transport will cause the unnecessary
expenditure of state resources to transport
him from Seward to Kenai for trial and then
back to Seward. [Seths] presence at trial
would also require under-staffed judicial
services officers to be present in the
courtroom for the entirety of the four-day
trial which could cause delay in other
proceedings and could result in overtime for
judicial services.
This paragraph lacks sufficient analysis or information to allow
a superior court to properly weigh whether to grant a motion to
transport.
We addressed a superior courts denial of a motion to
transport in Richard B.33 In that case we concluded that the
trial court did not abuse its discretion in denying a prisoners
request to attend a parental rights termination proceeding.34 A
Seward prisoner sought transport to attend a Bethel trial.35 The
state argued that transport would require an officer to transport
the prisoner from Seward to Bethel and back, and that the state
would have to house the prisoner in a crowded Bethel facility for
a number of days.36 The state also showed that transporting the
prisoner would possibly illegally overcrowd the prison system,
create a ripple effect of prisoner transport within the system,
and could require significant planning and coordination.37 We
affirmed the superior courts denial of the prisoners request
because the states demonstration of significant transportation
costs was persuasive.38
But as Seth argues here, Kenai is not far from Seward,
where he was imprisoned. Both communities are on the road
system. Seth did not have to be moved across a long distance at
great expense, unlike the prisoner in Richard B.39 We assume
based on DOCs opposition that transporting Seth would have
affected personnel assignments, security, and expense. But
neither DOC nor the Department of Public Safety made any adequate
showing about what might have been required. The state did not
even discuss any security risk Seth might have presented. Had
Seths incarceration not ended in time for him to testify live at
trial, DOCs opposition would be slender support for the superior
courts decision to deny the motion to transport. Therefore, in
the future, in opposing a transport motion made by an imprisoned
parent seeking to testify at a termination proceeding, the state
must provide a specific showing, and the trial court must
determine whether the states showing is specific and sufficient
before denying a motion to transport.
D. The Superior Court Did Not Err in Terminating Seths
Parental Rights by Determining that Lacey Is a Child in
Need of Aid.
Seth argues the superior court erred in terminating his
parental rights because there was not clear and convincing
evidence to support a finding that Lacey was a child in need of
aid under AS 47.10.011(1) (the parent has abandoned the child),
(8) (the parents conduct has led to mental injury), and (10) (the
ability to parent has been substantially impaired by the
addictive or habitual use of an intoxicant).
Because we affirm the superior courts holding that
Lacey was a child in need of aid on one of the three bases found
by the superior court, there is no need to consider the other
two.40
We therefore consider the superior courts determination
that Lacey was a child in need of aid under AS 47.10.011(10)
because it found that Seths ability to parent had been affected
by his use of intoxicants. Seth argues that there was no
evidence that his ability to parent had been affected by his use
of intoxicants. He argues that two social workers never saw him
impaired when they visited to check on Lacey. He also argues
that the presumption contained in AS 47.10.011(10) that a
relapse within one year is prima facie evidence of substantial
impairment does not apply because he was still in treatment.
Alaska Statute 47.10.011(10) states that a child is in
need of aid if the parents ability to parent has been
substantially impaired by the addictive or habitual use of an
intoxicant, and the addictive or habitual use of the intoxicant
has resulted in a substantial risk of harm to the child. The
presumption states that the resumption of use of an intoxicant by
a parent . . . within one year after rehabilitation is prima
facie evidence that the ability to parent is substantially
impaired.41 In Stanley B. v. State, DFYS, we upheld the superior
courts finding that Stanleys ability to parent had been affected
by his use of intoxicants.42 In that case, we said that
subsection .011(10) may be satisfied by evidence that a parents
drug use is at least partially responsible for his current and
past incarcerations, and that his frequent and prolonged absences
while incarcerated substantially impair his ability to parent.43
Here there was sufficient evidence for the superior
court to find under AS 47.10.011(10) that Seths ability to parent
had been substantially impaired by his addictive use of
intoxicants and that this use had resulted in a substantial risk
of harm to Lacey. In making its finding under subsection
.011(10), the trial court relied on: testimony that Seth had
ongoing problems with addiction to prescription and illicit
drugs; treatment program records showing that Seth participated
in programs to treat opioid dependence, cannabis abuse, and
cocaine abuse; evidence Seth was discharged from a number of
treatment programs for a variety of reasons; evidence of Seths
relapse with morphine for six days; evidence of Seths attempt to
steal money and drugs from the police while he worked as a
confidential informant; records of Seths no-shows and refusal to
submit to urine analysis, and positive tests; and evidence Seth
cut off his ankle monitor and absconded from a treatment program.
Seth argues that his use of intoxicants did not expose
Lacey to a substantial risk of harm. Seth points out that two
social workers noted that he was attentive toward Lacey and that
she appeared to be doing well in his care. Seth further argues
that there was no evidence that he exposed Lacey to a drug
operation. The state responds that Seth was often unable to
parent Lacey because he was incarcerated or under house arrest as
a result of his criminal conduct, which was linked to his
substance abuse. Additionally the state asserts that Seth
potentially exposed Lacey to members of the criminal element and
risks inherently associated with drug use, drug buys, and a
marijuana grow operation. This was substantial evidence that
Seths substance abuse exposed Lacey to a substantial risk of harm
as it led to, among other problems, the marijuana grow operation
in the home in which Lacey lived, and caused Seth to be absent
for much of Laceys life.
There was therefore substantial evidence upon which to
find Lacey was a child in need of aid under AS 47.10.011(10).
There was sufficient evidence on the record to find that Seth had
an addiction to prescription and illegal intoxicants. It appears
that many of Seths legal problems and incarcerations were related
to his use of intoxicants and that his use resulted in
substantial harm to Lacey.
Because we conclude that the superior court did not err
in finding facts demonstrating that Lacey was a child in need of
aid under AS 47.10.011(10), we do not need to address the
presumption contained in that subsection.
E. The Superior Court Did Not Err in Finding that Seth
Failed To Remedy His Conduct.
Seth argues that there was no clear and convincing
evidence that he failed to remedy his substance abuse. He claims
the superior court should take into consideration the
difficulties facing the parent when determining a reasonable time
to remedy addiction. He asserts the superior court should have
taken his comprehension difficulties into consideration, giving
him more time to remedy his addiction. He examines the factors
under AS 47.10.088(b)44 and concludes he should have been granted
more time.
In finding that Seth had not remedied his conduct in
relation to his use of intoxicants, the superior court relied on
evidence that Seth had not successfully completed a treatment
program, had not refrained from using illegal substances, and had
not refrained from engaging in criminal activity resulting in
arrest. Although the court noted that Seth had presented
evidence of his completion of treatment, it did not find the
evidence persuasive because Seth refused to allow OCS to provide
collateral information, and he continued to obtain prescription
medications.
The superior court also found that Seth had not
remedied his conduct and that placing Lacey with him would place
her at substantial risk of physical or mental injury. The court
based this finding on the fact that Seth had not completed any of
the recommendations from his various treatment programs, and the
fact that if Seth were to successfully begin a treatment program,
including substance abuse and psychological examination, there
would be a considerable amount of time before OCS could even
start a trial home visit to reunite Lacey with Seth.
There was sufficient trial evidence to permit the court
to find by clear and convincing evidence that Seth had failed to
remedy his conduct related to his substance abuse. The superior
court did not err in deciding that it was not in the best
interest of the child to give Seth more time to remedy his
conduct.
F. The Superior Court Did Not Err in Finding that
Terminating Seths Parental Rights Was in Laceys Best
Interest.
Alaska Statute 47.10.088(c) requires the superior court
to consider the best interests of the child when deciding whether
to terminate a parents parental rights.
Seth argues that terminating his parental rights is not
in Laceys best interest because he is devoted to her and there is
evidence he and Lacey had a strong bond.45 In light of this
strong bond he argues it would not be in Laceys best interest to
place her in another foster home.
The state argues that there was sufficient evidence to
support the superior courts finding that it was in Laceys best
interest to terminate Seths parental rights. The state points to
evidence presented at trial that Lacey has been involved with OCS
for most of her life, including over twenty-four consecutive
months in foster care, and needs permanency. The state also
argues that Seth would not be in a place to care for Lacey in the
foreseeable future due to his need to complete substance abuse
treatment and the fact that he was still on electronic
monitoring.
The brief of the GAL also argues that it is in Laceys
best interest to terminate Seths parental rights. The GAL
presented evidence in support of its conclusion that was largely
similar to the states arguments. The GAL additionally points out
that because of his legal problems Seth was not present when
Lacey was an infant, leading her to spend her tender years in the
homes of different adults, and that Seths behavior over the three
years leading up to the termination trial demonstrated an
unwillingness to change to reunify with Lacey. The GAL admits
that Seth is at times a loving and devoted father, but that on
the whole he is unable to break away from his drug use.
Although Seth may be a devoted father and may believe
he has a bond with Lacey, ample evidence supports the superior
courts best-interest determination. The superior court therefore
did not err in finding that terminating Seths parental rights was
in Laceys best interest.
IV. CONCLUSION
We therefore AFFIRM the termination decision.
FABE, Chief Justice, with whom CARPENETI, Justice, joins,
concurring.
I agree that because Seth D. eventually testified in
person at trial, his due process claim must fail. I write
separately to express my view that the cost of transportation,
standing alone, should not suffice as grounds for denying a
prisoner the right to testify in person at trial on termination
of parental rights. Our case law makes clear that the trial
court erred in ruling that Seths telephonic testimony was
adequate for a fair trial. Only the fortuity of Seth D.s release
from prison before the conclusion of his hearing rendered the
superior courts decision to deny transport harmless error.
The constitutional protections afforded in-person
testimony reflect subtle but important shortcomings of
telecommunications technology. We have recognized that the
potential for empathy and nuanced understanding is much greater
in person-to-person communications than in any of the various
forms of telecommunicating.1 Consequently, when a party is
denied an in-person hearing before a trier of fact, there is a
risk that the party will be less able to convey the message that
his story is the truth.2 In other words, appearing in person
supplies an essential component of the right to testify.
The cost of transporting a prisoner from Seward to
Kenai certainly falls well short of justifying a decision to deny
a prisoner the right to testify in person in a termination trial.
Indeed, we have never held that the mere cost of transportation
should suffice as grounds for denying a prisoners right to
testify in person where a fundamental right is at stake. In
Richard B., the trial court denied the request for transport not
only because it would have involved significant expense but also
because flying Richard from Anchorage to Bethel would potentially
lead to illegal overcrowding and would create ripple effects
throughout the system and require significant planning and
coordination.3 Similarly, in Whitesides our decision turned on
our determination that public safety, [t]he foremost government
interest involved in drivers license revocation proceedings, . .
. will not be prejudiced by providing a person who is under
threat of license revocation with an in-person hearing.4 We held
in favor of in-person hearings despite our recognition that in
some circumstances, travel costs and travel time for hearing
officers will be greater for in-person hearings than for
telephone hearings.5
As the court today has noted, Whitesides is
distinguishable in that we did not require the state to transport
a prisoner, but rather provided that a person must be allowed to
appear in person before the hearing officer. On the other hand,
Whitesides did not involve the fundamental right to the care and
custody of ones own child. The interest at stake in potential
termination of that right may not always lead to a decision that
a prisoners personal appearance is essential to the just
disposition of the action.6 But it should in many cases. Where
security risks or other extraordinary circumstances are absent,
the due process clause dictates that a just disposition in a
parental rights termination trial includes permitting requested
in-person testimony.
_______________________________
1 We have used pseudonyms throughout this opinion to
protect the privacy of family members.
2 Lacey is not an Indian child within the meaning of the
Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq.
3 It is somewhat unclear exactly when Seth and Tiffany
were in contact during Laceys life. It is clear that he was
staying with Tiffany at this time.
4 AS 33.30.081 governs the transport of prisoners to
trials in which they are parties.
5 The superior court did not directly cite AS
47.10.011(8) in its Findings, Conclusions, and Order Terminating
Parental Rights and Responsibilities. Nonetheless, the superior
court made findings and a conclusion that appear to satisfy
subsection .011(8).
6 Although Tiffanys parental rights were also terminated,
she has not appealed.
7 Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 817 (Alaska 2003).
8 Id. (citing Whitesides v. State, Dept of Pub. Safety,
Div. of Motor Vehicles, 20 P.3d 1130, 1134 (Alaska 2001)).
9 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
10 Id.
11 Id.
12 Id.
13 Under AS 33.30.081(f):
A court may order a prisoner who is a party
or a witness to a civil action . . . to
appear at a place other than within a
correctional facility only if the court
determines, after providing a reasonable
opportunity for the commissioner to comment,
that the prisoners personal appearance is
essential to the just disposition of the
action. In making its determination, the
court shall consider available alternatives
to the prisoners personal appearance
including deposition and telephone testimony.
The trial court has significant discretion in
determining whether to grant an incarcerated parents request to
be transported to a termination trial. Richard B., 71 P.3d at
827.
14 Although the court agrees with many of the comments
contained in the concurring opinion, the fortuity of Seths
release in time for him to testify in person at trial makes it
unnecessary here to explore what due process and the
transportation statute minimally require when prisoners seek to
testify at the trial on state petitions to terminate their
parental rights.
15 Richard B., 71 P.3d at 828.
16 Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 829-30 (Alaska 2003).
17 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1139 (Alaska 2001) (holding that when
credibility of party is in issue at license revocation hearing,
an in-person hearing is required).
18 Richard B., 71 P.3d at 829-30 (emphasis in original).
19 Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), cited
in Richard B., 71 P.3d at 831.
20 Richard B., 71 P.3d at 829 (quoting Mathews, 424 U.S.
at 335).
21 J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001).
22 Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).
23 Richard B., 71 P.3d at 831.
24 Seth also relies on the testimony of witnesses who
testified that he may need someone to explain words to him to
help reading comprehension; that he has trouble responding to
written questions; that he has to have someone read written
questions to him; that he had previously asked a case worker to
read his plan to him because he feared he would be unable to
understand it himself; and that Seths vocabulary deficiency
affects both reading and verbal comprehension. This evidence,
and this theory for attendance, were not presented to the
superior court when Seth last requested, on the first day of
trial, that the court order him transported for trial.
25 The state notes that at the pretrial discussion the
guardian ad litem (GAL) pointed out that Seth had a low verbal
score but that there was a discrepancy with the score. Citing
the previous IQ report, the GAL told the superior court that
there was hope that that would advance and that he could
compensate by verbal learning.
26 E.J.S. v. State, Dept of Health & Soc. Servs., 754 P.2d
749, 752 (Alaska 1988) (holding that fathers right to due process
was not violated by his telephonic participation in termination
hearing).
27 The superior court gave Seth an opportunity to
interrupt at trial if he had comprehension difficulty. See Part
III.C. The court even stopped the trial at one point when Seth
said that he was having trouble hearing the proceedings.
28 Richard B., 71 P.3d at 833.
29 As noted above, Seth attended the last two days of
trial and testified in person. This is not a case in which a
parent was denied an opportunity to testify in person.
30 We express no opinion whether this would have been
sufficient to satisfy either due process or the transportation
statute had Seth not ultimately been able to attend the trial
personally and testify live.
31 AS 33.30.081.
32 We focus our discussion here on a parents right to
testify at trial, not on the right to be present, because the
right to testify involves a higher degree of participation in the
trial process and therefore imposes a greater limitation on the
superior courts discretion. As discussed earlier, it is hard to
imagine how being present at trial, but not testifying, would be
any different than telephonic participation conducted properly
per our previous decisions. No party argues here that modern
video conferencing would not have been an adequate alternative to
personal attendance.
33 Richard B., 71 P.3d at 811.
34 Id. at 828.
35 Id. at 816.
36 Id. at 828.
37 Id.
38 Id.
39 Id. at 816.
40 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 54 n.14 (Alaska 2003)
(stating [b]ecause we affirm the trial courts holding that Amanda
was a child in need of aid on the bases of AS 47.10.011(6) and
(8), it is not necessary to reach the third issue of whether she
was also a child in need of aid on the basis of AS 47.10.011(2));
see also Rick P. v. State, OCS, 109 P.3d 950, 956 (Alaska 2005).
41 AS 47.10.011(10).
42 Stanley B. v. State, DFYS, 93 P.3d 403, 407 (Alaska
2004).
43 Id. at 407.
44 AS 47.10.088(b) states that in determining whether the
parent has remedied the conduct that put the child at substantial
risk of harm, the court may consider:
(1) the likelihood of returning the child to
the parent within a reasonable time based on
the childs age or needs;
(2) the amount of effort by the parent to
remedy the conduct or the conditions in the
home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct
will continue; and
(5) the history of conduct by or conditions
created by the parent.
45 Because Seths challenge to the superior courts best-
interest-of-the-child determination goes to the facts underlying
the determination, we review the determination for clear error.
See Jeff A.C., Jr. v. State, 117 P.3d 697, 707 (Alaska 2005);
Stanley B., 93 P.3d at 408.
1 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1137 (Alaska 2001).
2 Id.
3 Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 827 (Alaska 2003).
4 20 P.3d at 1138.
5 Id.
6 AS 33.30.081.
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