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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Todd v. Todd (10/8/99) sp-5188

Todd v. Todd (10/8/99) sp-5188

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


LISA C. TODD,                 )
                              )    Supreme Court No. S-8803
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-97-241 CI
                              )
ROBYN TODD [Fn. 1] and             )
LARRY AND ELIZABETH TODD,     )    O P I N I O N
                              )
             Appellees.       )    [No. 5188 - October 8, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                    Beverly W. Cutler, Judge.


          Appearances: John C. Pharr, Law Offices of
John C. Pharr, Anchorage, for Appellant.  Tara N. Logsdon, Tull &
Associates, Palmer, for Appellees.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          In a divorce proceeding between Robyn and Lisa Todd, the
superior court awarded sole physical and legal custody of the
couple's only child, K.T., to K.T.'s paternal grandparents,
intervenors Larry and Elizabeth Todd.  Lisa appeals that decision. 
We affirm.  
II.  FACTS AND PROCEEDINGS  
          K.T. was born June 12, 1990.  On November 4, 1991, Robyn
and Joe Harvey, Lisa's brother, robbed the Hub Bar in Anchorage. 
During that robbery the owner of the bar was fatally shot. [Fn. 2] 
Robyn was convicted of first-degree robbery, second-degree murder,
and third-degree assault; he was sentenced to consecutive sentences
for those crimes. [Fn. 3]  Lisa and Robyn were married in March
1993, while Robyn was in prison in Seward.  Robyn is now
incarcerated in Arizona.
          It is undisputed that from the time K.T. was
approximately eight months old to the present, she lived for much
of the time in Wasilla with Larry and Elizabeth.  Larry is Robyn's
father and Elizabeth is Robyn's step-mother.  They have been
married for twenty-four years and have owned their home in Wasilla
for the last twenty-two years.  Lisa disagrees sharply with Larry
and Elizabeth as to the amount of time K.T. was in Larry and
Elizabeth's care.  After substantial litigation of the issue, the
trial court found that Larry and Elizabeth had been K.T.'s primary
caretakers for about seventy percent of K.T.'s life. [Fn. 4]  The
following is a brief chronology of the relevant events.
          1991
          Larry and Elizabeth first met K.T. when the child was
approximately eight months old.  At that point, they began caring
for her.  By the end of 1991, K.T. was staying with Larry and
Elizabeth for extended periods of time. 
          1992
          In the spring of 1992, Lisa left K.T. with Larry and
Elizabeth for at least seven weeks while she was out of the state
to avoid involvement in the criminal case.  Lisa, with the
assistance of Larry and Elizabeth, moved into an apartment in
Wasilla in August 1992. 
          1993
          In June 1993 Lisa (now married to Robyn) moved to Seward
to be close to him.  It is unclear if K.T. ever moved with Lisa to
Seward. 
          1994
          Larry and Elizabeth contend that K.T. was living with
them on a full-time basis by 1994.  Lisa states that K.T. was
shuttled back and forth between the parties in the early part of
the year.  Both parties agree that K.T. spent the summer with Larry
and Elizabeth at their Lake Iliamna lodge. 
          1995
          Lisa testified that she had K.T. sixty percent of the
time and that Larry and Elizabeth had K.T. forty percent of the
time during 1995.  Elizabeth testified that K.T. was with her and
Larry one hundred percent of the time from January to June.  Both
sides agree that K.T. spent most of the summer with Larry and
Elizabeth at the lodge.  In the fall, Lisa enrolled K.T. in
kindergarten in Anchorage, but K.T. spent weekends with Larry and
Elizabeth.  K.T. moved in with Larry's daughter, Christy, after
Thanksgiving so that K.T. could finish the semester in Anchorage. 
This was done to allow Lisa to attend Charter College. 
          1996
          In January 1996 Larry and Elizabeth enrolled K.T. in a
Wasilla school and she lived with Larry and Elizabeth full time
until the end of the school year.  That summer, Lisa took K.T. to
Kansas for two months; K.T. spent the remainder of the summer at
the lodge with Larry and Elizabeth.  In the fall, K.T. again
attended school in Wasilla and continued to live with Larry and
Elizabeth. 
          1997
          In February 1997 Lisa, now residing in Kansas with her
parents, filed for divorce in that state.  At that time, K.T. was
still living in Wasilla with Larry and Elizabeth.  Robyn then filed
for divorce in Alaska in March 1997.  In his complaint, he sought
joint legal custody, with primary physical custody to Lisa, and
liberal visitation rights for Larry and Elizabeth.  Lisa answered
by seeking sole legal and primary physical custody of K.T. 
          In May, Larry and Elizabeth intervened and sought legal
and primary physical custody of K.T.  The court granted Larry and
Elizabeth interim physical custody of K.T.  But Lisa retained
shared legal custody. 
          1998
          In June 1998 the trial court issued a final divorce
decree, a final child custody decree, and findings of fact and
conclusions of law.  The court gave Larry and Elizabeth sole legal
and physical custody of K.T.  Lisa appeals that decision.
     III. DISCUSSION
     A.   Standard of Review  
          We have previously held that we will disturb the trial
court's resolution of child custody issues "only if the record
shows an abuse of discretion or if controlling findings of fact are
clearly erroneous.  Whether factual findings are sufficient to
support an award of custody to a non-parent is a legal issue to
which we apply our independent judgment."[Fn. 5] 
     B.   Child Custody Legal Standards  
          We apply a different legal standard in custody disputes
between parents than in custody disputes between parents and non-
parents.  In custody disputes between parents, custody is
determined "in accordance with the best interests of the child."
[Fn. 6]  However, in a child custody dispute between parents and
non-parents, parental custody is considered to be "preferable and
only to be refused where clearly detrimental to the child."[Fn. 7]
          We have previously noted that when a child has resided
with a non-parent for a significant amount of the child's life, 
"severing the bond between the psychological parent and the child
may well be clearly detrimental to the child's welfare."[Fn. 8] 
However, even if the non-parent has been the child's primary
caregiver, the burden is on the non-parent to prove, by a
preponderance of the evidence, that parental custody would be
"clearly detrimental."[Fn. 9] 
     C.   The Superior Court Did Not Err in Granting Larry and
Elizabeth Custody of K.T.

          The court found that the preponderance of evidence
supported an award of custody of K.T. to Larry and Elizabeth. [Fn.
10]  In doing so, the court found that:
          (1) K.T.'s strongest psychological bonding has been with
Larry and Elizabeth; Larry and Elizabeth's physical and emotional
nurturing and caretaking also was instrumental in shaping K.T.'s
sense of her place in the universe.  Specifically, the trial court
found:
          [C]learly, over the course of the seven years,
the strongest psychological bonding and sense of place of being in
the universe has been through the physical and emotional nurturing
and caretaking of Larry and Elizabeth Todd, not through that of
Lisa. . . . Larry and Elizabeth Todd, for about two-thirds to
three-quarters of this child's life, have been her primary
caretaker and have been the most stability that she has had . . .
. 

          It is important for the child's welfare that
the child be in a situation where the child is nurtured constantly
in a way that they have a good, healthy springboard to adult life.
. . . 

          . . . [H]ere the paternal grandparents[] have
stepped into the shoes of being the primary caretakers, nurturers,
and the constant, over the seven, 7-1/2, almost eight years, for
the basic statutory needs of a child that need to [be] met under
our custody statute. 
               
          (2) Because K.T.'s bonds with her grandparents are so
strong, it would be detrimental to K.T. to destroy those bonds.  In
this regard, the trial court said:
          And because the child's bonds have been so
strong with the . . . grandparents with regard to the emotional,
psychological, and physical nurturing that's taken place from age
1-1/2 through age 7-1/2 here, that it would be detrimental to her
to destroy those. 

          It appears that the physical symptoms that the
child has exhibited as Lisa has become more of a presence in her
life over the last six months illustrate that to go for a big
change, even bigger than what we have now, would be emotionally,
psychologically harmful, detrimental to [K.T.] Even Dr. Collins, .
. . the witness that Lisa called, basically said no, . . . that
[it] would be detrimental to the child right now to do that. 

          (3) Lisa is not ready to be K.T.'s primary custodian, and
K.T. should be given the message that she "can continue to bond
with Larry and Elizabeth . . . without resistance from Lisa."
Specifically, the trial court found:
          It does appear as noted that Lisa is just not
motivated right now to put together a package where she would be
the primary custodian and the child would be given [a] healthy
message that she can continue to bond with Larry and Elizabeth
without arrows flying back between the two families here. 

          [Lisa has] never established and has continued
to let loosen or weaken the general[ly] very strong bond that a
child will develop with his or her primary parent. 

          (4) "[i]t would be psychologically, emotionally and
possibly physically detrimental to [K.T.] to be placed primarily in
Lisa Todd's care." In this regard, the trial court found:
          [H]er security and her structure over the five
to seven years really come from what . . . she's been given by
Larry and Elizabeth. . . . Lisa has been during that period of time
more like a visiting parent, not followed through with promises .
. . . [W]hat really would be detrimental to the child from a
psychological and emotional standpoint is that through this whole
five to seven years, Larry and Elizabeth have tried to foster the
situation as one of extended family, . . . but if Lisa were to be
given primary physical custody, it just does not appear that she is
capable of continuing to nurture all those relationships in the
same positive way, and . . . that would be very harmful to [K.T.] 

          After a careful review of the record we find that there
is adequate factual support for each of these findings. 
Accordingly, they are not clearly erroneous.
          The trial court heard testimony and read reports written
by several experts who were familiar with the case.  This
information supports the court's award of custody to Larry and
Elizabeth.  For example, as part of a court-ordered custody
investigation, the parties were instructed to undergo an assessment 
by psychologist Dr. Susan LaGrande.  Dr. LaGrande performed two
separate evaluations, the first for the interim custody hearing in
August 1997 and the second for the final custody hearing conducted
in March and April 1998.  Lisa declined to participate in the
second evaluation.  
          In her summary of these two evaluations, Dr. LaGrande
wrote the following in recommending that Larry and Elizabeth retain
custody of K.T.:
          For this child's psychological needs it is
important to recognize that [Larry and Elizabeth's] home has been
her primary stable and consistent home.  Abrupt transition from
this or a disruption of this support system puts this child in
emotional jeopardy.  A child relies [on] stability and consistency
to develop a strong sense of self worth, empathy, and ego strength. 
It is from this platform that a child develops healthy coping
mechanisms and problem solving strategies.  If this is disrupted
and impaired it can [jeopardize] this child's ability to form
meaningful relationships in her future.  To date a demonstration
that stability and consistency can be provided in the mother's home
has not been shown to this evaluator . . . . 

          Larry, Elizabeth, Lisa, and K.T. also met with custody
investigator Susan Arth.  Like Dr. LaGrande, Ms. Arth recommended,
among other things, that Larry and Elizabeth receive primary
physical custody of K.T. and that they share legal custody with
Lisa.  She based this recommendation on her findings that:
          Lisa's parenting skills are not so limited
that there is cause to contact the Division of Family and Youth
Services.  However, . . . [K.T.] has resided mostly with her
paternal grandparents . . . . 

          It [] appears that Larry and Elizabeth have
served a much greater role in the child's life than has her mother
. . . . To date Larry and Elizabeth have been meeting [K.T's]
needs.  This Investigator is not convinced that Lisa can.  Lisa
seems to have poor judgement about her daughter's need for safety,
nurturing, and emotional support . . . . 

          Repeatedly, [Lisa] abandoned her daughter to
take care of her own needs, which she experiences as more pressing. 
It is electrifying that Lisa probably took [K.T.] to at least one
armed robbery and served as a lookout. 

          Laudably, Lisa and K.T. began therapy to "work on the
mother-daughter relationship"with Dr. Alfred Collins.  Dr. Collins
testified that the bond between Lisa and K.T. is "strong but also
threatened with some ambivalence . . . on K.T.'s part." Dr.
Collins further testified that placing K.T. primarily in Lisa's
care would disrupt "the life that she has got with her grandparents
right now [and] would be difficult for her."
          Taken together, the testimony and experts' reports
provide adequate grounds to support placing K.T. with Larry and
Elizabeth.
IV.  CONCLUSION
          Because the record supports the conclusion that placement
of K.T. with Lisa would be clearly detrimental to the welfare of
the child, we AFFIRM the superior court.                                 


                            FOOTNOTES


Footnote 1:

     Robyn Todd has not participated in this appeal.


Footnote 2:

     There is evidence that Robyn and others participated in a
series of armed robberies.  An accomplice to one of these alleged
crimes told police officers that Lisa accompanied them to one of
these crimes, but stayed in the car with the infant K.T. 


Footnote 3:

      We upheld his conviction and sentence.   See Todd v. State, 917
P.2d 674 (Alaska 1996).


Footnote 4:

     The trial court found that Larry and Elizabeth had been K.T.'s
primary caretakers for two-thirds to three-fourths of the child's
life. 


Footnote 5:

     J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998) (citations
omitted).


Footnote 6:

     AS 25.24.150(c).


Footnote 7:

     Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975).


Footnote 8:

     Buness v. Gillen, 781 P.2d 985, 989 n.8 (Alaska 1989)
(citations omitted).


Footnote 9:

     Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977) (quoting
Turner, 540 P.2d at 1055).


Footnote 10:

     The court also found that Lisa had abandoned K.T.  But since
we are affirming the court's first finding, we need not review this
finding.