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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dara v. Gish (9/22/2017) sp-7201

Dara v. Gish (9/22/2017) sp-7201

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                      

HELENA  DARA,  f/k/a                                                 )  

HELENA  HARRIS,                                                      )     Supreme  Court  No.  S-16414  



                                                                     )     Superior Court No. 3AN-14-04479 CI  



                                                                     )     O P I N I O N  



HELENA GISH and HOWARD GISH,                                                                                           

                                                                     )     No. 7201 - September 22, 2017  


                                Appellees.                           )  




                        ppeal from the Superior Court of the State of Alaska, Third  


                     Judicial District, Anchorage, Erin B. Marston, Judge.  


                     Appearances:   Helena Dara, pro se, Memphis, Tennessee,  


                     Appellant.   Herbert M. Pearce, Law Office of Herbert M.  


                     Pearce, Anchorage, for Appellees.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     WINFREE, Justice.  



                     The superior court granted joint legal and primary physical custody of a  


child to his maternal grandmother and step-grandfather.  The child's mother - who  


retained joint legal custody and visitation rights - appeals, arguing that:   she was  


entitled  to  court-appointed  counsel  during  the  proceedings;  the  order  violates  her  


Fourteenth Amendment right to direct the upbringing and education of her child; and the  

----------------------- Page 2-----------------------


court erred in its custody determination. Because the mother provides no legal basis for  


her claimto court-appointed counsel, weaffirmthecourt's decision denying that request.  


Because the court applied the correct constitutional and legal standard for third-party  


custody, its factual findings were not clearly erroneous, and its exercise of discretion was  


not unreasonable, we affirm the court's order awarding joint legal and primary physical  


custody of the child to the grandparents.  



          A.        Facts  


                    Helena Dara's son was  born  in 2006.   Dara's mother and step-father,  


Helena and Howard Gish, have been a significant presence in the boy's life.  In March  


2009, at Dara's request, the Gishes took the boy into their home and became his primary  


care givers because his parents could not adequately provide for him. In September, with  


Dara's consent, the Gishes were appointed his legal guardians. Through 2012 Dara had  


frequent contact with her son, including overnight visitation.  


                    Dara's son began receiving Individual Education Plans (IEPs) from the  


local school district in 2009. He received a variety of reading and language assessments  


around  2012;  a  neuropsychological  evaluation  from Dr.  Kristi  Fuller  in  2013;  and  


speech,  language,  and  occupational  therapy  evaluations  in  January  2014.                                        Around  


January  2014  the  Gishes'  attorney  requested  that  Dr.  Alfred  Collins,  a  licensed  


psychologist, provide an opinion whether Helena Gish was the boy's "psychological  


parent"; Dr. Collins returned an opinion the next month that she was.  In that opinion  


Dr. Collins found that the boy was "developmentally very delayed" and that although the  


boy had "made some progress over the past five years, due in large part to the efforts of  


Helena Gish," he nonetheless "still remains far behind."  Dr. Collins further noted that  


the "Gishes have consistently provided the high level of support that [the boy] has  


required (OT, speech therapy, evaluations, etc.)."  

                                                               -2-                                                         7201

----------------------- Page 3-----------------------


                    Later testing - performed by Dr. Fuller in 2016 when the boy was almost  


ten years old - found "low-average general intellectual abilities," "global deficits, with  


basic reading skills falling at an early first-grade level, and math calculation skills at an  


early second-grade level," and "the presence of dyslexia."  Given the severity of the  


boy's  dyslexia,  Dr.  Fuller  recommended  that  he  continue  working  with  a  speech  


pathologist the Gishes had arranged.  

          B.        Proceedings  


                    In July 2012 Dara brought an action to terminate the guardianship, which  


the Gishes contested.  Around the same time the Gishes also filed a petition to adopt  


Dara's son.  The adoption petition was denied in March 2013, and the guardianship was  


terminated in August 2014.  In January 2014, after the adoption was denied but before  


the guardianship was terminated, the Gishes filed a separate complaint for custody and  


visitation, which underlies this appeal.  The Gishes were represented by private counsel  


throughout the proceedings. Dara had private counsel until May 2015, when she notified  


the firm that she no longer needed their services.  


                    In March 2015 the parties arrived at a settlement agreement under which  


Dara was granted primary physical and sole legal custody, and the Gishes received  


regular visitation rights.  The parties stipulated that "a strong and heartfelt bond" had  


developed between the boy and the Gishes and that it was in his "best interest that he  


have regular and consistent visitation" with them.  But less than two weeks after the  


parties reached the agreement, Dara left the state with her son without notifying the  


Gishes and cut off all communication with them. The Gishes hired a private investigator  


and  discovered  that  Dara  and  her  son  were  in  Tennessee;  another  family  member  


subsequently informed them of Dara's precise whereabouts.  After the Gishes informed  


the superior court that Dara had violated the settlement agreement's visitation provisions  


and left the state with the boy, the court issued an order granting them interim custody.  

                                                               -3-                                                         7201

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


In July 2015 the Gishes traveled to Tennessee and, using the interim custody order,  


secured the assistance of local authorities in obtaining physical custody of the boy and  


bringing him back to Alaska.  


                    The Gishes moved to set aside the settlement agreement and resumed their  


custody action against Dara when they returned to Alaska.   Trial was scheduled for  


February 2016. At a November 2015 status hearing Dara informed the court she was no  


longer represented by counsel and was having some difficulty knowing what to file; she  


had requested appointed counsel at the legal aid center but had been denied.  Dara again  


brought up the issue of appointed counsel at a January 2016 pretrial conference, this time  


requesting that the court appoint her counsel under AS 25.23.180(h), which provides a  


right to counsel in parental rights termination proceedings. The court informed Dara that  


the statute did not pertain to custody determinations, and that the court knew of no  


avenue under which it might be authorized to appoint counsel in a case such as hers.  


                    In February 2016 the parties agreed to a temporary visitation schedule  


under which the boy would live with Dara and her new husband in Tennessee over the  


following summer. Trial was continued and a status and custody hearing was scheduled  


for  July.       In  April  the  Gishes  sent  Dara  a  letter  suggesting  her  son's  progress  in  


overcoming his special needs might bejeopardized by the summer away fromhis doctors  


and therapists in Alaska and proposing an alternative visitation schedule. Dara declined  


to alter the agreed-upon schedule and in May filed a motion to enforce visitation.  The  


court held a hearing and issued an order enforcing the original visitation agreement. The  


court noted Dara's son might lose some  progress he had made in therapy but was  


reassured by testimony from Dara and her new husband that they had enrolled the boy  


in a summer therapy program at the Sylvan Learning Center.  

                    Dara's son spent the summer in Tennessee with Dara and her husband, a  


man she had known for only about a month before the marriage.  Dara's son did not  

                                                               -4-                                                         7201

----------------------- Page 5-----------------------


attend the program in which Dara had testified to enrolling him.  In late July the court  


held the scheduled status and custody hearing.  Both Helena and Howard Gish attended  


in person; Dara and her husband participated telephonically.  The court took care to  


review  the  third-party  custody  legal  standard  with  Dara  at  the  beginning  of  the  


proceedings, and on numerous occasionsthecourtexplainedhearingprocedures. Helena  


and Howard Gish testified about the boy's special needs, what actions they had taken to  


address those needs, their concerns about Dara's capacity to care for the boy, and why  


theywereseeking custody. Dararaised concerns about theGishes'care-giving decisions  


and the safety and stability of the Gishes' home.  Her concerns about the Gishes' care  


giving stemmed in part from her own experience being raised by the Gishes, which she  


viewed unfavorably.  Dara and her husband also testified to their understanding of the  


boy's special needs and what steps they had taken to address those needs.  On cross- 


examination the Gishes' attorney raised the issue of the stability of Dara's home life,  


pressing  Dara's  husband  for  details  concerning  his  relationship  with  his  own  five  


children. After an argumentative exchange Dara's husband eventually had an extended,  


loud, and profane outburst, for which he later apologized.  


                    Three days after the hearing concluded the superior court issued its oral  


decision on record.  The court found the Gishes had proved by clear and convincing  


evidence that the boy would suffer clear detriment if sole custody were granted to Dara;  


it granted the Gishes and Dara joint legal custody (with final decision-making authority  


vested in the Gishes), granted the Gishes primary physical custody, and granted Dara  


regular visitation.  Dara appeals the superior court's final custody order.  

                                                               -5-                                                         7201

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

III.        STANDARD OF REVIEW                

                        "We . . . review constitutional questions de novo, adopting the rule of law                                                   


that is most persuasive in light of precedent, reason, and policy."                                                                      

                                                                                                                    "Likewise, '[w]hether  


the court applied the correct standard in a custody determination is a question of law we  



review de novo.' " 



                        "The  superior  court  has  'broad   discretion  in  custody  awards.'  " 


Consequently, "[w]e will reverse a superior court's custody and visitation determination  


'only if the superior court has abused its discretion or if its controlling findings of fact  


are clearly erroneous.' "                                                                                                   

                                               We will find an abuse of discretion when the superior court  


" 'consider[s] improper factors in making its custody determination, fail[s] to consider  


statutorily mandated factors, or assign[s] disproportionate weight to particular factors  


while  ignoring  others.'                       We  review  factual  findings,  including  determinations  of  



psychological parent status, for clear error."                                      Factual findings are "clearly erroneous  


when a review of the record leaves us with the definite impression that a mistake has  

            1           Ross  v. Bauman, 353 P.3d 816,  823  (Alaska  2015)  (omission  in  original)  

(quoting  Skinner  v.  Hagberg,   183  P.3d  486,  489  (Alaska  2008)  (footnote  omitted)).  

            2           Osterkamp   v.   Stiles,  235   P.3d   178,   184   (Alaska   2010)   (alteration   in  

original)  (quoting  Elton  H.  v.  Naomi  R.,   119  P.3d  969,  973  (Alaska  2005)).  

            3           Id. at 183 (quoting In re Adoption of Missy M., 133 P.3d 645, 648 (Alaska  



            4           Id. (quoting R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000)) (citing Skinner,  


 183 P.3d at 489).  


            5           Id. (alterations in original) (footnote omitted) (quoting In re Missy M., 133  


P.3d at 648) (citing Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002)).  


                                                                           -6-                                                                     7201

----------------------- Page 7-----------------------


been   made."     "[W]e   ordinarily   will   not   overturn   a   trial   court's   finding   based   on  

conflicting evidence," nor will we "re-weigh evidence when the record provides clear                                            

support for the trial court's ruling; it is the function of the trial court, not of this court,                                                       

to judge witnesses' credibility and to weigh conflicting evidence."                                                               7  

IV.          DISCUSSION  

                          Dara challenges the superior  court's decision  to  award  custody  to  the  


Gishes on three grounds:  (1) she was entitled to appointed counsel; (2) the decision  


violated her Fourteenth Amendment right to direct the upbringing and education of her  


child; and (3) the superior court erred in its custody determination.  


             A.           Dara Was Not Entitled To Appointed Counsel.  


                          Dara argues that she should have received court-appointed counsel, stating  


that she "asked for [counsel] and was denied and I believe that this is one reason that I  


was unable to get my child back." Dara raised this issue twice before the superior court.  


At a status hearing in November 2015 the court inquired why in some time it had not  


received any communication from Dara; she responded that she was not sure what she  


should file because she had no money for an attorney, and that she had gone to legal aid  


and requested an attorney but was denied.  In late January 2016, about one week before  


the then-scheduled trial, Dara requested appointed counsel under AS 25.23.180(h),  


which provides a right to counsel in parental rights termination proceedings.  The court  


informed her that the statute did not apply because this was a custody proceeding and  


parental rights were not being terminated.  The court explained it was aware of case law  


requiring appointed counsel in custody cases where the state provided representation for  


             6            Id.  (citing  In re Missy M.                     , 133 P.3d at 648).         



                          In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska 2009) (quoting  


Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 182 P.3d  


 1110, 1114 (Alaska 2008)).  

                                                                                  -7-                                                                           7201

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


the opposing party                              but that situation did not apply, and the court was aware of no other                                                                                 

avenue authorizing it to appoint counsel.                                      

                                Dara's claim - "that when somebody is trying to take a child froma parent                                                                                         

and   said   parent   does   not   have   the   means   to   afford   an   attorney   that   one   shall   be  

                                                                                                                                                                9 but not in a custody  

appointed" - is accurate in the parental rights termination context,                                                                                                                         

case when  neither party has the benefit of state-appointed counsel.10                                                                                                           In our recent  


Dennis O. v. Stephanie O.  decision we held that in custody cases "self-represented  


indigent parents facing opposing parents represented by private counsel are not, as a  


class, deprived of due process rights solely because they do not have counsel."11                                                                                                                       The  


reasoning in Dennis O. applies also in the third-party custody context; if the third party  


seeking custody does not enjoy state-appointed counsel then no "fairness concerns"  


                                                                                                                                                               12      Dara presents no  

demand, as a rule,  appointing counsel for the opposing parent.                                                                                                                                            


argument causing us to reconsider that holding or to distinguish its operation in the third- 


                8               See Flores v. Flores                            , 598 P.2d 893, 896 (Alaska 1979) (holding "that there                                                                

is a constitutional right to counsel" in custody cases "where the other parent has an                                                                                                                       

attorney supplied by a public agency").                                  

                9               See AS25.23.180(h) ("Therespondent toapetition filed for thetermination  


of parental rights . . . is entitled to representation in the proceedings by an attorney.").  


                 10              Cf. Flores, 598 P.2d at 895 (holding that in custody cases where one parent  


is represented by state-appointed counsel, "[f]airnessalonedictatesthatthe[other parent]  


should be entitled to a similar advantage").  


                 11              393 P.3d 401, 409 (Alaska 2017).  


                 12             Id. at 408.  


                                                                                                      -8-                                                                                             7201

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

party custody context; we reject her claim that the superior court erred by denying                                                           

appointed counsel.                13  


            B.	         The Superior Court Applied The Correct Constitutional And Legal  



                        1.	         The  state's  third-party  custody  legal  framework  protects  


                                    parents' constitutional rights.  


                        Dara  argues  the  superior  court  violated  her  Fourteenth  Amendment  


substantive due process right "to direct the upbringing and education of [her] child[],"  



citing a number of United States Supreme Court cases establishing that right.                                                                             

                                                                                                                                               Dara is  


correct that "[t]he 'right to the care and custody of one's own child is a fundamental right  


recognized by both the federal and state constitutions' [that] therefore 'falls within the  



protections of the due process clause.' "                                    The Gishes do not contest this.  


                        But, as the Gishes note, we have established a legal framework in third- 


party custody cases under which parents' constitutional rights are appropriately and  

                                                                                      16   We have regularly applied this legal  


effectively balanced against the child's welfare. 

            13          Under  Dennis O.                a litigant may argue an individual due process right to                                          

counsel   given   a   case's  particular   circumstances.     See   id.   at   409-11.     Dara   has   not  

suggested, and the record does not                           reflect,any dueprocess                    concerns indicatingappointed         

counsel might have been uniquely necessary in her case.                                                 

            14          See U.S. Const. amend. XIV,  1; Troxel v. Granville, 530 U.S. 57, 65-66  


(2000); Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972); Prince v. Massachusetts, 321  


U.S.  158, 164-66 (1944); Pierce v. Soc'y of the Sisters of the Holy Names of Jesus &  


Mary, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).  


            15          Alex H. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,  


389 P.3d 35, 48 (Alaska 2017) (footnote omitted) (quoting Seth D. v. State, Dep't of  


Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1222, 1227-28 (Alaska  



            16          See Evans v. McTaggart, 88 P.3d 1078, 1082, 1089-90 (Alaska 2004)  



                                                                            -9-	                                                                   7201

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framework in third-party custody cases without challenge to its constitutionality, and                                                          

Dara presents no argument why we should consider a departure now.                                                       17              

                                                                                                                             If the superior  


court applied the correct third-party custody legal standard in this case, then there is no  


reason to question the constitutionality of its decision.  


                       2.          The superior court applied the correct legal standard.  


                       A "non-parent who has a significant connection with the child has standing  



to assert a claim for custody."                           "[E]stablishing psychological parent status 'is more  


demanding than the "significant connection" status that a third party must have in order  



to seek custody.' "                   Once standing is established, a third party seeking custody must  


"show by clear and convincing evidence that the parent is unfit or that the welfare of the  



                                                                                                                 To satisfy the burden  

child requires the child to be in the custody of the non-parent." 


under the "welfare of the child" analysis, the "non-parent must show that the child would  



suffer clear detriment if placed in the custody of the parent."                                                   In determining clear  


detriment, "analysis is not limited to examining the child's relationship with the legal  

            16         (...continued)  


(discussing constitutionality of legal framework applied in third-party custody cases;  


holding  that  related  legal  framework  used  in  third-party  visitation  cases  is  not  


unconstitutional under relevant precedent).  

            17         See, e.g., Osterkamp v. Stiles, 235 P.3d 178, 184-89 (Alaska 2010); Elton  


H. v. Naomi R., 119 P.3d 969, 975-77 (Alaska 2005); Kinnard v. Kinnard, 43 P.3d 150,  


 153-55 (Alaska 2002).  


            18         Evans, 88 P.3d  at 1081 (quoting Buness v. Gillen, 781 P.2d 985, 988  


(Alaska 1989), overruled on other grounds by Evans, 88 P.3d at 1085 n.34 (requiring the  


clear and convincing evidence standard in third-party custody cases)).  


            19         Osterkamp, 235 P.3d at 184 n.17 (quoting Evans, 88 P.3d at 1082).  


            20         Id. at 185 (quoting Evans, 88 P.3d at 1085).  


            21         Id. (quoting Evans, 88 P.3d at 1085).  


                                                                       -10-                                                                  7201

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


parent; courts may take into account the relationship between a child and a third party."                                                                             


Accordingly, although "[p]sychological parent status does not entitle a third party to  


custody[,] . . . this status can help a third party prove that it would be clearly detrimental  



to a child to deny third party custody." 

                         The superior court applied this framework throughout the proceedings and  


when issuing its decision on record.   Counsel for both parties submitted briefing in  


October 2014 on standing and relevant third-party custody case law. Following a March  


2015 settlement conference, the court in its findings of fact and conclusions of law  


implementing the parties' settlement agreement noted that the parties had stipulated to  


the "strong and heartfelt bond" between Dara's son and the Gishes, and that the Gishes  


had served as "the primary care givers of the minor child for a period in excess of five  


years." This stipulation and the court's conclusion that the Gishes served as primary care  


givers  for  the  majority  of  the  boy's  life  demonstrated  the  "significant  connection"  


between the boy and the Gishes sufficient to establish standing to seek custody.24  


                         The Gishes' standing to seek custody was further established by the court's  


later  finding  that  the  Gishes  had  achieved  "psychological  parent"  status,  a  "more  


demanding" means of establishing standing than the significant connection test.25   In its  


July 2015 order granting the Gishes interim custody, the court found that "[b]ased upon  


             22          Id. (citing  J.W. v. R.J.                , 951 P.2d 1206, 1211 (Alaska 1998),                                     overruled on  

other grounds by Evans                         , 88 P.3d at 1085 n.34 (requiring the clear and convincing                                     

evidence standard in third-party custody cases)).                             

             23          Id. at 184 n.17 (emphasis in original) (citing Buness, 781 P.2d at 989 n.8).  


             24          See Buness, 781 P.2d at 986, 988 (holding that significant connection was  


"unquestionably" established when child lived with half-sister's father several days a  


week for approximately four years and continuously for about one year).  


             25          Osterkamp, 235 P.3d at 184 n.17 (quoting Evans, 88 P.3d at 1082).  


                                                                              -11-                                                                        7201

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

the long and established relationship that exists between [Dara's son] and Howard and                                                                                                                                                                                                                                                                                       

Helena Gish, and in conjunction with the professional opinion and recommendations of                                                                                                                                                                                                                                                                                                

Dr. Alfred Collins," the Gishes "are the 'psychological' parents" of Dara's son.                                                                                                                                                                                                                                                                                        The  

court reiterated its finding that the Gishes are psychological parents in its July 2016                                                                                                                                                                                                                                                       

decision on record. In making these findings the superior court applied the correct legal                                                                                                                                                                                                                                                                               

standard to determine standing in a third-party custody case.                                                                                                                                                                                       

                                                           The superior court likewise required the correct standard of proof and                                                                                                                                                                                                                                          

applied the correct substantive legal standard.                                                                                                                                                               The court distinguished this case from                                                                                                                   

custody cases between two biological parents wherecustody                                                                                                                                                                                                            isdetermined                                                in accordance  

                                                                                                                                   26          The court expressly noted that it was required to make  

with the child's best interests.                                                                                                                                                                                                                                                                                                                                     

findings under the clear and convincing evidence standard's "quite high burden," rather  


than under the preponderance of the evidence standard typically applied in custody  


disputes.27  Citing a number of relevant third-party custody and visitation decisions,28 the  


                             26                            Compare Ronny M. v. Nanette H.                                                                                                                 , 303 P.3d 392, 401 (Alaska 2013) (noting                                                                                                           

that in a dispute between biological parents "[t]he superior court must determine custody                                                                                                                                                                                                                                                                  

in accordance with the best interests of the children" (citing AS 25.24.150(c)),                                                                                                                                                                                                                                                                                         with  

 C.R.B.  v. C.C.                                               , 959 P.2d 375, 380 (Alaska 1998) (observing that "despite an inevitable                                                                                                                                                                                                          

 sacrifice of children's best interests in cases where a nonparent can better serve those                                                                                                                                                                                                                                                                            

interests," the higher burden of showing that "a parent is unfit or that his or her custody                                                                                                                                                                                                                                                               

is clearly detrimental" is necessary in third-party cases to avoid the danger of taking                                                                                                                                                                                                                                                                         

children from their parents simply because authorities personally disapprove of parents'                                                                                                                                                                                                                                                                 

lifestyles or limited means (citing                                                                                                                        Carter v. Novotny, 779 P.2d 1195, 1197 (Alaska                                                                                                                                                

 1989))),  overruled on other grounds by Evans                                                                                                                                                               , 88 P.3d at 1085 n.34.                                                     

                             27                            See Evans, 88 P.3d at 1085 (requiring "heightened . . . clear and convincing  


evidence standard" in "initial custody contests between parents and non-parents" rather  


than preponderance of evidence standard used in custody cases between parents).  


                             28                            The superior court relied on Ross v. Bauman, 353 P.3d 816 (Alaska 2015);


 Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010); Evans v. McTaggart, 88 P.3d 1078



                                                                                                                                                                                      -12-                                                                                                                                                                              7201

----------------------- Page 13-----------------------

superior   court   noted   the   extremely   high   burden   the   Gishes   had   to   surmount   to  

demonstrate that the child's welfare required them to have custody; they had to prove                                                                                                        

that "custody by the biological parent would be clearly detrimental to the child."                                                                                                              The  

court conveyed this same standard to Dara at the beginning of the trial to ensure that she                                                                                                         

understood   what   the   Gishes   were   required   to   prove   and   that   she   could   effectively  

represent herself.                        The legal standard the court conveyed to the parties and applied in its                                                                                     

decisioncomportswith our established requirements;third                                                                               parties seekingcustody "must                            

show by clear and convincing evidence that the parent is unfit" or that "the child would                                                                                                    

suffer clear detriment if placed in the custody of the parent."                                                                               29  

                               Because the superior court applied the correct legal framework and that  


framework appropriately balances the child's welfare against the fundamental right to  


parent, Dara's constitutional argument fails.  


                C.             The Superior Court Did Not Err In Its Custody Determination.  


                               The  superior  court  found  the  Gishes  proved  by  clear  and  convincing  


evidence that Dara's son would suffer clear detriment if Dara were given sole custody.  


The court entered a number of findings supporting that determination.   Its "primary  


finding" was that the boy has special educational, emotional, and psychological needs,  


including severe dyslexia.  The court also found that:  (1) the Gishes have undertaken a  


number of actions to meet the boy's special needs; (2) Dara cannot meet those needs, is  


unwilling to recognize those needs, has a history of not following through with the boy's  


care, and her failings are attributable not to a lack of resources but rather a lack of will;  


(3)  the  Gishes  were  the  boy's  primary  parents  for  five  years,  they  remain  his  


                28             (...continued)  


(Alaska 2004); Todd v. Todd, 989 P.2d 141 (Alaska 1999); and Buness v. Gillen, 781  


P.2d 985 (Alaska 1989).  

                29              Osterkamp, 235 P.3d at 185 (quoting Evans, 88 P.3d at 1085).  


                                                                                                 -13-                                                                                          7201

----------------------- Page 14-----------------------

psychological parents, and separating the boy from them would cause him emotional                                                                                                                                                                                             

harm; (4) due to Dara's "severe hatred of her parents" her "actions are not dictated by                                                                                                                                                         

the welfare of" her son, and if she has custody "she will do everything to terminate the                                                                                                                                                                                                                

relationship   between   the   grandparents   and   the   child,"   to   her   son's   detriment;   and  

(5)  Dara has an unstable home-life.                                                                                               Dara challenges many of the court's controlling                                                                                         

factual findings and its failure to address in its decision on record a number of facts and                                                                                                                                                                                                           

factors she considers relevant to the determination.                                                                                                                                   

                                               Dara   first   argues  the   superior   court   should   have   considered   her   son's  

purported preference to live with her.                                                                                               The court informed Dara at the trial's conclusion                                                                                      

that, given her son's age and special needs, his preference would not "carry the day one                                                                                                                                                                                                              

way or the other."  The court noted that in a custody case between parents it would be                                                                      

required under AS 25.24.150 to consider her son's preference if he were "of sufficient                                                                                                                                                                                           

                                                                                                                                            30  but under that statutory analysis most judges  

age and capacity to form a preference,"                                                                                                                          


would not consider her son sufficiently mature to develop an informed preference.                                                                                                                                                                                                                                     


Given the boy was only ten years old at the time of trial and there was extensive evidence  


concerning his developmental delays, the court's finding that Dara's son was not "of  


sufficient age and capacity to form a preference" was not clearly erroneous.  There thus  


was no need for the court  to address in its decision on record the boy's purported  


preference, even assuming courts must consider that factor in the third-party custody  



                        30                     AS 25.24.150(c)(3).   

                        31                     See William P. v. Taunya P.                                                                         , 258 P.3d 812, 816 (Alaska 2011) (affirming                                                                               

finding   that   children   aged   10   and   11   lacked   sufficient   age   and   capacity   to   form  


                        32                      Cf.  Park  v.  Park,  986  P.2d  205,  207  (Alaska  1999)  ("While  a  court  



                                                                                                                                                  -14-                                                                                                                                           7201

----------------------- Page 15-----------------------

                                             Dara next challenges the superior court's finding that she has an unstable                                                                                                                                               

home.   She contends her son was with her and her husband "for the entire summer and                                                                                                                                                                                                  

was healthy, reading on his own, [and] took to [her] husband to the point that he calls                                                                                                                                                                                           

him Dad." The court relied on the following evidence for its unstable home-life finding:                                                                                                                                                                                                             

Dara married a man in Tennessee after knowing him for only 30 days; her husband has                                                                                                                                                                                                    

5 children under the age of 11 by 3 different women yet has visitation with none; and her                                                                                                                                                                                               

husband "exhibited explosive anger," cursing in court at counsel and the parties, all in                                                                                               

front of Dara despite her earlier testimony that she suffered from post-traumatic stress   

disorder. The court found that behavior was not "an indication that the biological mother                                                                                                                                                                                  

 . . . comes from a stable home environment at this point."                                                                                                                                                  Dara argues no adverse                                    

inference   should   be   drawn   from   her   husband's   outburst   because   he   "was   asked  

relentlessly   about   his   children   that   are   not   part   of   this   case   and   [he]   asked   nicely  

numerous times that they leave his children out of it but the[y] beat on him about it until                                                                                                                                                                                    

he did have that outburst," and "anybody when pushed enough would have done the                                                                                                                                                                                                        

same thing."                                But the superior court was entitled to draw reasonable inferences from the                                                                                                                                                                  

                                                                                                                                                33  it is not unreasonable to be concerned that  

husband's testimony and demeanor at trial;                                                                                                                                                                                                                                           

                      32                     (...continued)  


determining custody [between biological parents] must always consider each of these  


 [AS 25.24.150(c)] factors, it need not refer to all of them in explaining its custody  


decision."); Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997) ("While trial courts are  


encouraged to state all findings in their written orders, they are not required to do so as  


long as the basis for their decisions is clear from the record and susceptible to review.").  

                      33                     See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20  


P.3d 1130, 1136 (Alaska 2001) ("The significance of live testimony and demeanor  


evidence has been long recognized.  Blackstone explained that, '[by] examination of  


wittnesses viva voce, in the presence of all mankind, . . . and this [method] only, the  


persons who are to decide upon the evidence have an opportunity of observing the . . .  


behaviour. . . and inclinations of the witness.' " (first omission and first and second  



                                                                                                                                          -15-                                                                                                                                    7201

----------------------- Page 16-----------------------

if the husband is unable to control his temper in a courtroom he may also be unable to                                                                                                                                                                                                                                                                                                             

do so in a child's presence. The court's finding that Dara had an unstable home-life was                                                                                                                                                                                                                                                                                                                                      

reasonable and grounded in testimony; it was not clearly erroneous.                                                                                                                                                                                                                                                                                    

                                                                   Dara next challenges the superior court's findings that she is unwilling to                                                                                                                                                                                                                                                                                          

recognize her son's special needs and is ill-equipped to meet his needs.                                                                                                                                                                                                                                                                                           She argues that                                             

 she and her husband have done everything in their power to care for her son, and that she                                                                                                                                                                                                                                                                                                                                        

 failed to enroll her son in therapy during the summer of 2016 - despite her husband's                                                                                                                                                                                                                                                                                                        

insurance providing coverage - only because the boy was with her for a relatively short                                                                                                                                                                                                                                                                                                                                  

time, making treatment impractical. But the superior court relied on Dara's own actions                                                                                                                                                                                                                                                                                                                        

 and testimony, which contradict the explanation she offers on appeal.                                                                                                                                                                                                                                                                                          When the court  

 agreed to permit her son to remain in Tennessee for a summer in the face of concerns the                                                                                                                                                                                                                                                                                                                                          

Gishes raised, the court acknowledged that the boy "may lose some of the progress he                                                                                                                                                                                                                                                                                                                                                  

has gained through the therapy he has completed."                                                                                                                                                                                                                Despite these misgivings the court                                                                                                                     

 allowed Dara to take custody for the summer because she and her husband assured the                                                                                                                                                                                                                                                                                                                                               

court they had enrolled the boy in summer therapy.                                                                                                                                                                                                              "Despite that agreement," the court                                                                                                                     

noted at trial, Dara's son never attended the courses, and Dara's only explanation was  

that "his spot got taken by someone else."                                                                                                                                                                           

                                                                   Referencing tests indicating Dara's son was at a first-                                                                                                                                                                                                             or second-grade level                                                              

when he should have been entering the fifth grade, the court asked Dara whether she                                                                                                                                                                                                                                                                                                                                             

recognized her son's developmental delays and whether she thought they were a real                                                                                                                                                                                                                                                                                                                                      

problem.   Dara responded by minimizing his needs, equivocating, and noting that many                                                                                                                                                                                                                                                                                                                                 

of her family members had some sort of delay.  When asked whether she had read the                                                                                                                                                                                                                                                                                                                                                

 expert   reports   on   her   son   and   whether   she   believed   they   had   validity,   Dara   again  

                                  33                                (...continued)  

                                                                                                                                                                                       ILLIAM  BLACKSTONE, C                                                                                                  OMMENTARIES  *373)).  

 alterations in original) (quoting 3 W 

                                                                                                                                                                                                                -16-                                                                                                                                                                                                      7201  

----------------------- Page 17-----------------------

equivocated.   She focused on her belief that Dr. Collins's report was biased, noted that                                                                                                                                                     

her father thought she had dyslexia simply because she did not enjoy reading, and                                                                                                                                                            

informed the court that a friend with dyslexia told her people sometimes just grow out                                                                                            

of it.          When the court asked Dara what she had done over the summer to address her                                                                                                                                                     

 son's dyslexia, she replied only that she had been working with him and working on his                                                                                                                                                          

reading.   This testimony, and Dara's failure to provide her son with therapy over the                                                                                                                                                          

                                                                                                                                                                                                                                        34        Its  

 summer as she had assured the court she would, support the court's decision.                                                                                                                                                                  

 finding that Dara is unwilling and ill-equipped to address her son's needs is not clear  



                                       Dara also argues that her admittedly "very unhealthy relationship" with her  


parents is not her fault and that it should not be held against her.  She contends they  


physically and emotionally abused her, but denies she will put her antipathy toward them  


above her son's needs; she has "no intention of cutting [her] parents out of [her son's]  


life as he does love them."   Regardless of fault, our inquiry centers on the child's  


welfare; the relevant question is which party is more likely to detrimentally cut the boy  


offfroman emotionallyand psychologically important relationship.35  Thesuperior court  


 found that the Gishes are psychological parents to Dara's son, and we have stated that  


"courts may take into account the relationship between a child and a third party in  


                   34                 In re Adoption of S.K.L.H.                                                       , 204 P.3d 320, 325 (Alaska 2009) ("When                                                                  

reviewing factual findings . . . we will not re-weigh evidence when the record provides                                                                                                                                         

clear support for the trial court's ruling; it is the function of the trial court . . . to judge                                                                              

witnesses' credibility and to weigh conflicting evidence." (quoting                                                                                                                                  Tessa M. v. State,                 

Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                                          , 182 P.3d 1110, 1114 (Alaska                                   


                   35                  See Osterkamp v. Stiles, 235 P.3d 178, 186 ("[W]hen a child's 'strongest  


psychological bonding' is with third parties, 'it would be detrimental to [the child] to  


destroy those bonds.' " (second alteration in original) (quoting Todd v. Todd, 989 P.2d  


 141, 143 (Alaska 1999))).  


                                                                                                                       -17-                                                                                                                7201

----------------------- Page 18-----------------------

determining whether awarding custody to the legal parent . . . would result in clear                                               


detriment to the child."                                                                                                      

                                           The superior court also found that, if granted sole custody,  


Dara would "do everything to terminate the relationship between the grandparents and  


the child," to her son's detriment.  


                     Evidence in the record supports this finding. The parties, stipulating to the  


"strong and heartfelt bond" between Dara's son and his grandparents, agreed at a March  


2015 settlement hearing that Dara would have primary custody of the boy, and that the  


grandparents would have regular visitation so he would not be traumatized by an abrupt  


end  to  contact  with  them.                    But  less  than  two  weeks  after  this  settlement,  Dara  

"intentionally did abscond" from the state, cutting off all contact between the boy and  


his grandparents until the Gishes tracked Dara down several months later.  When the  


court inquired why Dara had cut off all contact, she responded that she asked her son  


whether he wanted to talk to the Gishes and he said "no," and that she was not going to  


otherwise  contact  the  Gishes  because  of  her  dislike  for  them.                                      And  in  July  2015  


Dr.  Collins  testified  that  Dara's  decision  to  move  away  and  cut  off  contact  was  


"detrimental to [the boy's] welfare and has likely created significant trust issues between  


[the boy] and [Dara] that may lead to further difficulties in their relationship in the  


future."  Given this evidence and the superior court's responsibility to judge witnesses'  

                  37  it  was  not  clear  error  to  find  that  Dara,  if  given  sole  custody,  would  


terminate  her  son's  relationship  with  the  Gishes  and  that  such  action  would  be  


detrimental to the boy's welfare.  


           36        Id.   at   185   (citing  J.W.   v.   R.J.,   951   P.2d   1206,   1211   (Alaska   1998),  

overruled on other grounds by Evans v. McTaggart                                   , 88 P.3d 1070, 1085 n.34 (Alaska  


           37        See In re S.K.L.H., 204 P.3d at 325 (quoting Tessa M., 182 P.3d at 1114).  


                                                                  -18-                                                             7201

----------------------- Page 19-----------------------

                                Dara next suggests the bond and "psychological parent" status between her                                                                                                  

son and the Gishes should be discounted because she has been "fighting to get [her] child                                                                                                             

back since 2012," but the Gishes have used litigation "so that they would be able to keep                                                                                                              

 [her] son long enough to validate their claim" to psychological parent status.                                                                                                            We have   

held that "the relevant point in time for establishing psychological parent status is the                                                                                                                 

                                                                                                                                        38    By January 2014, when this  

time when a complaint for custody or visitation is filed."                                                                                                                                               

action was initiated, the Gishes had served as primary care givers for almost five of the  


boy's eight years.   The superior court expressly referenced this five-year period in  


finding that the Gishes had established "psychological parent" status.  Relying on the  


five-year period ending on the date the Gishes filed their complaint for custody was not  


legal error.39  


                                Dara finally argues the superior court's order should be reversed because  


the Gishes have "an unhealthy relationship with [her] child" and a "severely unstable  


home." Among the allegations Dara raises to support these contentions are: Helena Gish  


at times allows the boy to sleep in her bed; the Gishes "sleep in separate bedrooms," a  


sign of instability; Helena is scared  of  Howard; and the Gishes are "both severely  


deceitful and manipulative."  These factual allegations are necessarily either new on  


appeal or were litigated at trial.  If the former, we will not consider arguments based on  


                38               Osterkamp, 235 P.3d at 188.                               



                                We note that it is unlikely the superior court's analysis would have changed  


if it had assessed whether the Gishes had established psychological parent status by the  


time Dara commenced litigation in 2012, rather than by the time the Gishes filed their  


complaint 18 months later, and a finding that they had would not have been clearly  


erroneous.  By 2012 the Gishes had served as primary care givers and legal guardians  


for approximately half the boy's life.  

                                                                                                    -19-                                                                                              7201

----------------------- Page 20-----------------------


those allegations.                                   If the latter, given that Dara's challenges to the superior court's                                                                                       

controlling factual findings, as discussed above, do not demonstrate clear error, any                                                                                                                                  

conflicting contentions argued on appeal concerning the relative stability and felicity of                                                                                                                                  

the Gishes' home are insufficient to overturn the court's clear detriment finding.                                                                                                                                 41  As  

noted above the court correctly relied on the third-party custody legal framework we  


have established.  And as outlined in this section the court exercised a high degree of  


care in its role as fact-finder, entering detailed findings under those exacting third-party  


custody standards.  The court did not err in awarding the Gishes joint legal and primary  


physical custody.  


V.                CONCLUSION  

                                   We AFFIRM the superior court's decision.  


                  40               See Reilly v. Northrop                                   , 314 P.3d 1206, 1214 (Alaska 2013) ("We 'will not                                                                           

consider on appeal new arguments which . . . "depend on new or controverted facts," . . .                                                                                                                                     

unless the new issue raised establishes plain error.' " (quoting                                                                                                      Krossa v. All Alaskan   

Seafoods, Inc.                       , 37 P.3d 411, 418-19 (Alaska 2001))).                                          

                  41               See In re S.K.L.H., 204 P.3d at 325 ("[W]e ordinarily will not overturn a  


trial court's finding based on conflicting evidence, and we will not re-weigh evidence  


when the record provides clear support for the trial court's ruling . . . ." (quoting Tessa  


M., 182 P.3d at 1114)).  


                                                                                                            -20-                                                                                                    7201

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