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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

Matthew H. v. State, Dept. of Health & Social Services, Office of Children's Services (6/2/2017) sp-7177

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                      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,  



                     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.  



                      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  


                                      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.  




                                      Pseudonyms are used for all family members to protect their privacy.  

                                                                                                                      -2-                                                                                                                        7177  

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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  

                                                               -3-                                                         7177

----------------------- Page 4-----------------------


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  

                                                               -4-                                                        7177

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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  


 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)).                                                                                                                                 

                                                                                                                                                                                                                                   -5-                                                                                                                                                                                                                   7177

----------------------- Page 6-----------------------


conviction that the superior court has made a mistake.' "                                                                   We    review the superior          


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  




              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  


              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))).  


                                                                                     -6-	                                                                            7177

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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.  

                                                                -7-                                                         7177

----------------------- Page 8-----------------------

                                                        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  



                                                                                                                                                                             -8-	                                                                                                                                                               7177

----------------------- Page 9-----------------------


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  



 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).  


                                                                                                                                                                                              -9-                                                                                                                                                                                 7177

----------------------- Page 10-----------------------

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  



                     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  

                                                              -10-                                                         7177

----------------------- Page 11-----------------------

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  


                      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).  


                                                                                                                                         -11-                                                                                                                                  7177

----------------------- Page 12-----------------------

V.                       CONCLUSION  

                                                 We AFFIRM the superior court's order terminating Matthew's parental                                                                                                                                                                          


                                                                                                                                                                 -12-                                                                                                                                    7177

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