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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Matthew H. v. State, Dept. of Health & Social Services, Office of Children's Services (6/2/2017) sp-7177
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MATTHEW H., )
) Supreme Court No. S-16383
Appellant, )
) Superior Court No. 4FA-13-00042 CN
v. )
)
O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH &
) No. 7177 - June 2, 2017
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Laura Fox, Assistant Attorney General, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
The superior court terminated a father's parental rights to his daughter. He
appeals the superior court's finding that he failed to remedy the conduct and conditions
that placed his child in need of aid, arguing that he cleaned up the family home, obtained
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a commercial driver's license and a job, and passed drug tests during the pendency of the
case. He also argues that the superior court deprived him of his right to self-
representation when it denied his motion to allow his appointed counsel to withdraw
shortly before the termination trial.
We conclude that the superior court did not clearly err in finding that the
father did not remedy the mental health issues that were "the root cause" of his inability
to safely parent his daughter. We also conclude that it was not an abuse of discretion to
deny the father's motion to allow his attorney to withdraw. We therefore affirm the
superior court's judgment.
II. FACTS AND PROCEEDINGS
A. Facts
1
Matthew H. is the father of Henrietta H. and the stepfather of Greta W.
Before the Office of Children's Services (OCS) became involved in their lives, Matthew,
Henrietta, Greta, and the children's mother, Miriam S., lived together in a one-room
cabin. The cabin lacked electricity, plumbing, and a water source and, according to
Henrietta and Greta, was not always heated in the winter. Rabbits, chickens, dogs, and
a cat shared the family's living quarters. The cabin and its yard and driveway were
littered with garbage, including old appliances and nonfunctional vehicles.
OCS removed 7-year-old Henrietta and 13-year-old Greta from the home
in May 2013 following a report that they were being exposed to the manufacture and use
of methamphetamine. The two girls were "severely underweight"; they reported not
having enough food at home and occasionally having to forage for food at waste transfer
sites, and they tended to hoard food after their removal.
1
Pseudonyms are used for all family members to protect their privacy.
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Neither child was enrolled in school. Matthew and Miriam testified that
it was too hard to get the children to a bus stop, although the local school district had
offered a stipend to help them pay for gas. The parents claimed to have home-schooled
the girls, but both were "extremely far behind academically."
Except for a single emergency roomvisit, neither child had visited a doctor
or dentist in the six years the family had lived in Alaska. Henrietta had not received any
shots since she was an infant. Both girls had scars from untreated burns from the stove,
and Henrietta had a large untreated burn on her foot from stepping in a pot of boiling
water. Henrietta had significant tooth decay, requiring the extraction of nine teeth within
three months of her removal from the home. She also had an untreated scratch on her
cornea; after removal she was prescribed glasses with the hope of avoiding a permanent
loss of vision. Both girls also "had untreated counseling and mental health needs," and
a psychotherapist found them to be "extremely traumatized."
Both Henrietta and Greta also tested positive for methamphetamine and
exhibited withdrawal symptoms. They reported that Matthew and Miriammanufactured
and used methamphetamine, and they "were able to describe how methamphetamine is
made and used."
Henrietta reported witnessing domestic violence between Matthew and
Miriam and between Matthew and Greta; Matthew admitted to domestic violence
between himself and Miriam. After her removal from the home Henrietta worried that
Matthew might hurt Miriam since she was no longer there "to protect" her mother.
With the girls in its custody, OCS struggled to develop a relationship with
Matthew, who was "suspicious" and "hostile." A psychotherapist diagnosed him with
an anxiety disorder, possible psychotic disorder, and antisocial personality disorder with
paranoid and narcissistic traits. He was also diagnosed with methamphetamine abuse
and marijuana dependence, though he only admits to marijuana use, and his drug tests
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during OCS's involvement were negative for methamphetamine. Matthew did not
engage in substance abuse treatment or counseling for mental health and domestic
violence while this case was pending, despite recommendations that he do so.
Because of concerns about Matthew's unmanaged mental health, OCS did
not arrange visitation between him and Henrietta. The superior court, following a
contested visitation hearing, agreed that visitation was not in Henrietta's best interests.
Matthew did write letters to Henrietta, but she declined to reply. And she became upset
and frightened when she encountered Matthew unexpectedly after a visit with Miriam.
In September 2015,shortlybeforethetermination trial, Henriettaand Greta
were placed with Matthew's sister in another state.
B. Proceedings
OCS's petition to terminate Matthew's and Miriam's parental rights was
filed in May 2014. The superior court granted several continuances of the termination
trial, which was finally scheduled to begin on September 22, 2015.
On August 4, 2015, Matthew filed a motion asking that his public defender
be allowed to withdraw, explaining that he intended to represent himself going forward.
A judge who was temporarily handling the case granted the motion on August 26, but
when the assigned judge, Superior Court Judge Michael A. MacDonald, learned of it on
September 8 he vacated the order granting the motion to withdraw and set a hearing to
discuss the parents' representation. Midway through the subsequent hearing Judge
MacDonald referred the matter to another judge for an ex parte inquiry into Matthew's
and his attorney's reasons for filing the motion to withdraw. The other judge conducted
the ex parte hearing and recommended that the motion for withdrawal be denied. Judge
MacDonald accepted this recommendation, reasoning that the children's interests
required that the case go forward "in the most urgent way" and that no last-minute
substitute, whether "an experienced attorney or a pro se litigant, could adequately be
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prepared to represent the parents' interests when the stakes are so high and a fundamental
right is involved."
The termination trial began as scheduled on September 22, 2015. At the
start of trial the court asked Matthew again whether he wanted to represent himself.
Matthew initially said that "[i]t wasn't [his] wish to go into this without an attorney, [he]
just didn't feel that [he] was being represented properly." Shortly thereafter, however,
he said he would like his public defender to remain on the case.
The trial took place over 11 days and concluded in January 2016. In a
written order issued in June the superior court found that Henrietta and Greta were
children in need of aid under a number of subsections of AS 47.10.011: (4) (failure to
provide necessary medical care), (6) (substantial physical harm or risk of harm to the
children), (8) (domestic violence), (9) (neglect), (10) (parental substance abuse), and
(11) (parental mental illness). The court found that Matthew and Miriam had failed to
remedy the conduct that caused their children to be children in need of aid, that OCS had
made reasonable but unsuccessful efforts to reunify the family, and that termination was
in the children's best interests. The court accordingly terminated Matthew's and
Miriam's parental rights to Henrietta and Miriam's parental rights to Greta. Matthew
appeals.
III. STANDARDS OF REVIEW
Whether a parent has remedied the conduct or conditions that placed the
child in need of aid is a factual determination "best made by a trial court after hearing
2 When reviewing findings of fact, "[w]e will find
testimony and reviewing evidence."
clear error only when a review of the entire record leaves us 'with a definite and firm
2 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1104 (Alaska 2011) (citing Barbara P. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010)).
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3
conviction that the superior court has made a mistake.' " We review the superior
4
court's denial of an attorney's motion to withdraw for abuse of discretion.
IV. DISCUSSION
Matthew raises two challenges on appeal. First, he argues that the superior
court clearly erred in finding that he failed to remedy the conduct and conditions that
made Henrietta a child in need of aid. Second, he argues that the superior court deprived
him of his right to self-representation when it denied his motion to allow his attorney to
withdraw.
A. The Superior Court Did Not Clearly Err In Finding That Matthew
Failed To Remedy The Conduct Or Conditions That Made Henrietta
A Child In Need Of Aid.
Alaska Statute 47.10.088(a)(2) provides that parental rights may be
terminated if the court finds by clear and convincing evidence that the parent "has failed
. . . 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." A parent's failure to remedy any one of the conditions that
placed the child in need of aid leaves the child at risk of harm and therefore supports
termination.5
3 David S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
270 P.3d 767, 774 (Alaska 2012) (citing S.H. v. State, Dep't of Health & Soc. Servs.,
Div. of Family & Youth Servs. , 42 P.3d 1119, 1122 (Alaska 2002)).
4 Devincenzi v. Wright, 882 P.2d 1263, 1265-66 (Alaska 1994).
5 See Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 212 P.3d 756, 762 (Alaska 2009) ("[O]nly one statutory basis is required for a
CINA finding." (citing G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 67 P.3d 648, 651 (Alaska 2003))).
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Matthewargues that thecourt's failure-to-remedyfinding"is error because
it overlooks the fact that one of the most substantial issues in this case was the condition
of the family's cabin," which "he had made great efforts to remedy" by cleaning up the
property. He adds that he also "obtained his commercial driver[']s license and gainful
employment" and "had not tested positive for methamphetamine for the duration of the
case." But the court found Henrietta to be a child in need of aid for a number of reasons;
further, it found that "the root cause of the harm the children have suffered" was parental
"mental illness and mental deficiencies." None of the personal improvements that
Matthew advances in his brief directly addressed his mental health, and the evidence
supports the superior court's finding that this "root cause" of the children's harm
remained unremedied.
Matthewreceived behavioral and mental healthevaluations fromLisaHay,
a psychotherapist, licensed social worker, and director of a domestic violence treatment
program, and from Dr. Marti Cranor, a licensed psychologist. Both Hay and Dr. Cranor
agreed that Matthew had a personality disorder involving antisocial and paranoid traits,
along with a "marijuana use disorder," anxiety disorder, and possible psychotic disorder.
The two providers were particularly concerned about Matthew's lack of
self-awareness, "lack of empathy for those he has hurt, . . . lack of remorse, . . . lack of
insight[,] and . . . lack of desire to make changes in his lifestyle and behaviors." Hay
worried that Matthew's "high level of denial," his inability "to recognize the effect the
situation in the home had on the children," and his lack of remorse were "indicative of
a very dangerous individual who is very likely to repeat his violence and should not have
anyone vulnerable to him in his custody." Dr. Cranor concluded that Matthew "was at
[a] very high risk for neglecting his children" and that he was in the "at-risk range" for
engaging in child abuse.
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Hay noted that Matthew's mental health issues were probably severe
enough that he was "unable to handle these issues himself." She and Dr. Cranor
recommended that Matthew receive individual therapy, but they were concerned that
"the severity of [his] personality disorder(s)" would negatively affect his capacity for
"making positive changes." Dr. Cranor referred Matthew to a particular counselor with
expertise in working with people like him, and the counselor agreed to take Matthew on
as a client; but Matthew refused to sign a release of information or follow through with
therapy sessions.
This record amply supports a finding that Matthew has significant mental
health issues that negatively affect both his own functioning and his ability to parent.
The record supports the court's further finding that Matthew resists taking steps to
improve his mental health and that, in the view of the mental health professionals, he is
unlikely to "respond positively toany formof psychological intervention." We therefore
affirm the superior court's finding that Matthew failed to remedy the "mental illnesses
and deficiencies" that placed Henrietta "at substantial risk of continued physical harm
and continuing mental injury." Matthew's failure to remedy this condition is, by itself,
sufficient to support the court's failure-to-remedy finding. 6
B. The Superior Court Did Not Abuse Its Discretion By Denying
Matthew's Motion To Allow His Attorney To Withdraw.
Matthew next contends that "[t]he trial court erred when it denied [his]
request to represent himself." He notes that Alaska CINA Rule 12(c) permits a parent
7 and he argues that the court erred when it failed to respect
to waive the right to counsel,
6 See id.
7 CINA Rule 12(c) ("The court shall accept a valid waiver of the right to
counsel by any party if the court determines that the party understands the benefits of
(continued...)
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8
his waiver of that right. But allowing Matthew to assume the task of self-representation
close to trial would have delayed the trial to the detriment of the children's best interests.
Matthew filed his motion for withdrawal of counsel on August 4, 2015,
seven weeks before the start of trial. The motion was granted later that month by a judge
handling the case temporarily, but the case's assigned judge, Judge MacDonald, did not
learn of the motion or the order allowing withdrawal until the September 8 pretrial
hearing. At that hearing the public defender who had been representing Matthew
informed the court that he had not yet "been able to transfer any of the [discovery] to
[Matthew]," noting that there were both videos and "many thousands of pages worth of
discovery," some of which was confidential, that he needed to sort through before the
transfer could be completed. He believed that given the quantity of discovery and the
fact that Matthew did not yet have it, Matthew "need[ed] time to prepare." On the basis
of these representations Judge MacDonald vacated the order granting the public
defender's withdrawal and scheduled a hearing on the motion.
At the hearing two days later, Judge MacDonald advised the parties that he
would ask another judge to inquire ex parte into Matthew's reasons for seeking his
counsel's withdrawal. Superior Court Judge Michael McConahy took on the task and,
after hearing from the parties and their lawyers, recommended against allowing
7(...continued)
counsel and knowingly waives those benefits.").
8 Matthewalso asserts that hehas aconstitutional rightto self-representation.
We have never squarely decided whether the right to self-representation that exists in the
criminal context extends to child in need of aid proceedings. See Donna A. v. State,
Dep't of Health & Soc. Servs., Office of Children's Servs. , No. S-11391, 2005 WL
564143, at *3 n.4 (Alaska Mar. 9, 2005). We need not reach the issue in this case,
because even where such a right exists a trial judge may deny a request for self-
representation when it would delay trial and the litigant has shown a lack of diligence in
asserting the right. See Brewer v. State, 55 P.3d 749, 753 (Alaska App. 2002).
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withdrawal. Judge MacDonald accordingly denied Matthew's motion, stating that his
request for self-representation "will be denied because it's too late an hour to find that
any person, an experienced attorney or a pro se litigant, could adequately be prepared to
represent the parents' interests when the stakes are so high and a fundamental right is
involved."
Trial began 12 days later. At the start of trial OCS's counsel asked the
superior court to confirm whether Matthew still wished to represent himself. Matthew
initially explained, "It wasn't my wish to go into this without an attorney, I just didn't
feel that I was being represented properly." Moments later he said he "would like [his
appointed counsel] to remain in the case."
OCS argues that Matthewthus waived his argument for self-representation
on the day of trial. But we cannot view Matthew's consent at trial as an effective waiver.
He had appeared with his counsel with the understanding that he would be represented;
trial was actually beginning; the superior court had made clear that it would not grant any
more continuances; and Matthew had had no opportunity to prepare to represent himself.
He could reasonably conclude that at that point he had no realistic choice but to proceed
with his public defender.
Nevertheless, we conclude that the superior court did not abuse its
discretion when it found that Matthew's request for self-representation came too late.
OCS had filed its petition for termination in May 2014, 15 months before trial. Matthew
sought his counsel's withdrawal with seven weeks remaining. While that may be ample
time for a pro se litigant to prepare for trial in some cases, Matthew's counsel informed
the court that in this case it was not enough. The case had a "long history and
complicated facts." At the time of the September 8 status hearing Matthew's public
defender, though working on the assumption that he was withdrawing, was still in the
beginning stages of gathering and reviewing the voluminous discovery so that he could
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transfer it to Matthew. By that point only two weeks remained before the multi-day trial
was scheduled to go forward, and the public defender believed that Matthew needed
more time to prepare. The superior court agreed, finding that "even experienced counsel
could not adequately be prepared to go in this case . . . in such a short period of time."
Thesuperior courtthusreasonably concluded that allowingMatthewto represent himself
would delay the trial.
The superior court also appropriately considered that the interests of the
children counseled against delay. The court noted that the termination trial had been
continued a number of times already, and by the time of Matthew's motion "the case
need[ed] to go forward . . . in the most urgent way"; "there [was] no time for the sake of
the[] children's permanency to delay." We have repeatedly emphasized that the
permanency needs of children weigh heavily against delaying termination proceedings, 9
as "stability and permanency [are] crucial to . . . children's health."10 There were thus
compelling "reasons to have [the] case tried promptly and on the trial date which had
11 We conclude that the superior court did not abuse its discretion
already been set."
when it denied Matthew's motion to allow withdrawal and required him to go to trial
represented by his appointed counsel.
9 Rowan B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 361 P.3d 910, 910, 913-15 (Alaska 2015) ("The best interests of children,
including the interest in permanency as opposed to leaving children in limbo, are
paramount.").
10 Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 848 (Alaska 2009); see also Barbara P. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263-64 (Alaska 2010).
11 Huitt v. State, 678 P.2d 415, 421 (Alaska App. 1984).
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V. CONCLUSION
We AFFIRM the superior court's order terminating Matthew's parental
rights.
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