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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. P.M. v. State, Division of Family and Youth Services (03/08/2002) sp-5549

P.M. v. State, Division of Family and Youth Services (03/08/2002) sp-5549

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


            THE SUPREME COURT OF THE STATE OF ALASKA

P.M.,                              )
                              )    Supreme Court No. S-10027
               Appellant,          )
                              )    Superior Court No.
     v.                             )         3AN-96-381       CP
)
STATE OF ALASKA,              )    O P I N I O N
DEPARTMENT OF HEALTH AND      )
SOCIAL SERVICES, DIVISION OF  )
FAMILY AND YOUTH SERVICES,    )
                              )
               Appellee.      )    [No. 5549 - March 8, 2002]
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Rene J. Gonzalez, Judge.

          Appearances:  Kenneth C. Kirk, Kenneth Kirk &
          Associates,    Anchorage,   for    Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,   Anchorage,   Bruce   M.   Botelho,
          Attorney   General,  Juneau,  for   Appellee.
          Barbara  L. Malchick, Deputy Public Advocate,
          Brant McGee, Public Advocate, Anchorage,  for
          Guardian Ad Litem.

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

          MATTHEWS, Justice.

I.   INTRODUCTION

          P.M.  appeals the superior court's termination  of  his

parental  rights  to his son, J.M.H.  Because we  find  that  the

superior  court did not violate P.M.'s statutory or  due  process

rights  to  counsel,  did  not err in  terminating  his  parental

rights, and did not err in failing to place the child with P.M.'s

parents, we affirm the superior court's opinion in its entirety.

II.  FACTS AND PROCEEDINGS

          P.M.'s  son, J.M.H., was born in January 1993.   During

the  first  two years of his life, J.M.H. lived with his  mother,

E.H.,1 in Vancouver, Washington.  What, if any, contact P.M.  had

with his son during this time is disputed in the record.2  It  is

not  disputed  that  P.M.  knew  of  the  child's  existence  and

whereabouts during those two years.  The mother moved  to  Alaska

with her two sons around 1995 and P.M. has had no further contact

with J.M.H.

          The  mother  and children were discovered in  a  wooded

area in Alberta, Canada in August 1996, in need of food, shelter,

clothing, and medical care.  J.M.H. had an infected foot that had

not  been  treated.   The  children were  taken  into  protective

custody by the Canadian authorities, and later transferred to the

care  of  the Anchorage authorities.  The State filed a  petition

for  adjudication of children in need of aid (CINA) on August 28,

1996.  The superior court adjudicated J.M.H. and his half-brother

children  in  need  of aid and committed them  to  the  temporary

custody of the Division of Family and Youth Services (DFYS).   On

November  15,  1997, both children were placed  in  the  home  of

J.M.H.'s  older half-brother's biological father and  stepmother,

Mr.  and  Mrs.  C.   The C.'s have consistently  expressed  their

desire to adopt J.M.H.

          P.M.  has a history of criminal activity, and has  been

in and out of jail in Washington and Oregon for several years for

a variety of drug-related and violent crimes. He was incarcerated

in  Washington  when  the  children were  taken  into  protective

custody  and  was released just months before trial.   He  has  a

history of anger management problems.

          In  January  1998 DFYS filed a petition for termination

of  parental rights of E.H. and P.M.  At that time, P.M. had  not

yet  been  located, nor had he had contact with DFYS.   In  March

1998  DFYS located P.M. in prison in Washington state, and served

him  with  the petition to terminate parental rights.   P.M.  was

          assigned counsel in May 1998. In June the court ordered paternity

testing  that  confirmed P.M. was the father of J.M.H.,  and  the

court vacated the termination trial set for the following month.

          Starting  in  January 1999, DFYS prepared a  number  of

case  plans  for  P.M., working to integrate him into  his  son's

life.   The  case  plans generally focused  around  P.M.'s  anger

management problems.  P.M. did not comply with any of these  case

plans.

          On  June  24, 1999, DFYS filed an amended petition  for

termination  of  parental rights for both E.H. and  P.M.   E.H.'s

parental rights were terminated by the superior court in December

1999.   Trial  on  termination  of  P.M.'s  parental  rights  was

scheduled for early January 2000.

          In  November  1998 P.M. attempted to  fire  his  court-

appointed  attorney, who was eventually allowed by the  court  to

step  down due to threatening letters he received from P.M.  Just

prior to his scheduled trial date, P.M. attempted to fire his new

court-appointed attorney, filed a complaint against his  attorney

with   the  bar  association,  and  moved  to  have  new  counsel

appointed.   Given a choice to continue with his attorney  or  to

proceed  pro  se, P.M. refused to accept either option,  and  his

attorney was allowed to step down.  Superior Court Judge Rene  J.

Gonzalez  refused  to  appoint new counsel;  however,  the  judge

continued the trial for nearly six months to allow P.M.  time  to

be released from prison and attend the trial.

          The  trial  was held June 26-28, 2000.  P.M.  proceeded

pro  se.  The court heard testimony from the DFYS social  worker,

J.M.H.'s  therapist,  P.M.'s counselor at  the  Washington  state

penitentiary, and a clinical psychologist.  At the conclusion  of

the  trial, the superior court terminated P.M.'s parental  rights

to J.M.H.

III. STANDARD OF REVIEW

          In  a  CINA  case, this court will overturn a  superior

court's findings of fact only if they are clearly erroneous.3  We

          review de novo whether the superior court's findings comport with

the   requirements  of  the  CINA  statutes  and  rules.4    When

interpreting  statutes5  and  constitutional  law,6  this   court

applies  its  independent judgment, "adopt[ing] the rule  of  law

that  is  most  persuasive  in light of  precedent,  reason,  and

policy."7

IV.  DISCUSSION

     A.   The  Superior  Court Did Not Err in Refusing  To  Grant
          P.M. Replacement Counsel.
          
          When  P.M.'s  original  counsel resigned  (for  reasons

unrelated to this case) the superior court appointed Thom Janidlo

to  represent  P.M.   P.M.  soon became  unhappy  with  Janidlo's

performance.   He  wrote  a  number of letters  to  Janidlo  that

Janidlo  interpreted  as  threatening, culminating  in  a  letter

purporting to "fire" Janidlo.8  P.M. unsuccessfully moved to have

the   court  appoint  new  counsel,  alleging  that  Janidlo  was

ineffective.   Janidlo  then requested  permission  to  withdraw,

citing  the  "threats of harm" in letters he  had  received  from

P.M., and the court permitted Janidlo to step down.9

          In  September 2000 the State moved the court to appoint

new  counsel  for  P.M.  and the court appointed  Jim  Hopper  as

replacement  counsel.  P.M. quickly became unhappy  with  Hopper.

Just  before  trial  was scheduled to begin,  P.M.  filed  a  bar

complaint  against Hopper, "fired" him, and petitioned the  court

to  assign  yet  another  attorney.   The  superior  court  heard

discussion on the issues of whether to allow Hopper to step  down

and whether to appoint new counsel in his place.

            Hopper  told  the court that, given the  pending  bar

complaint, he felt his interests were "somewhat in conflict" with

P.M.'s,  and  that  he  did not feel he  could  represent  P.M.'s

interests.  After discussion, the judge gave P.M. a choice:

          THE  COURT:   Either Mr. Hopper goes  forward
          and  represents you, you've already . .  .  .
          went  through one attorney.  So  either  it's
          Mr. Hopper or you proceed pro se.
          
          P.M.:   Sir, I will never waive my rights  to
          effective  representation of counsel.   There
          is a conflict of interest that exists with me
          and  Mr. [Hopper], he does not want to do his
          job,  there is absolutely no way in the world
          that  I'm  going to accept representation  as
          what  Mr.  [Hopper] has been  showing  he  is
          going to provide for me.  There's no way  I'm
          going  to  proceed  pro se  and  give  up  my
          statutory  rights to counsel.   I  refuse  to
          allow the attorney to - to represent me  from
          here forward. . . .
          
Following  this exchange, the judge granted Hopper's  application

to withdraw, citing the bar complaint and Hopper's assertion that

he  and  P.M. could no longer communicate, and ordered that  P.M.

proceed  pro  se  unless  he retained private  counsel.   Despite

objections  from  the  State,  the guardian  ad  litem,  and  the

attorney for the foster father that a long delay went against the

child's best interests and that P.M. was using this dispute as  a

delaying  tactic, the judge continued the trial  for  nearly  six

months  in order to allow for P.M.'s release from prison so  that

he could prepare his case and defend himself.

          The  trial  took  place  June 26-28,  2000,  with  P.M.

appearing  pro  se.10  At the conclusion of trial,  the  superior

court  ruled  that  P.M.'s parental rights  to  J.M.H.  would  be

terminated.   In  this  appeal, P.M.  argues  that  the  superior

court's  refusal to appoint new counsel to replace Hopper  was  a

violation of Alaska statutes and his due process rights under the

Fifth Amendment to the U.S. Constitution and article I, section 7

of the Alaska Constitution.

          1.   Attorney   Hopper  did  not  provide   ineffective
               assistance  of counsel justifying his  termination
               by P.M.
               
          P.M.  argued  before the superior  court  that  he  was

provided   ineffective  assistance  of  counsel  and  that   this

justified  his  discharge of Hopper.  The standard for  effective

assistance of counsel is "that [counsel's] decisions, when viewed

in  the  framework  of trial pressures, be within  the  range  of

reasonable  actions which might have been taken  by  an  attorney

skilled  in  the  . . . law, regardless of the  outcome  of  such

          decisions."11  Regarding P.M.'s arguments that Hopper provided

ineffective  assistance, the superior court concluded  that  P.M.

"was manipulating the court."  Judge Gonzalez wrote:

               Both  Mr.  Thom  Janidlo and  Mr.  James
          Hopper  are attorneys who have many years  of
          experience in representing clients  in  Child
          In  Need of Aid proceedings and both  have  a
          proven  record of representing clients  in  a
          highly  professional manner.  The  fact  that
          they  were  not willing to comply with  every
          whim and unreasonable requests made by [P.M.]
          did  not  make  their representation  of  him
          suspect or in any way incompetent.
          
Although  finding  that  both  Alaska  Rules12  and  the   Alaska

Constitution guaranteed to P.M. the right to counsel,  the  judge

concluded  that these provisions did "not grant [P.M.] the  right

to  manipulate the court and continue to delay the termination of

parental rights proceedings."  He found that the tone and content

of  the  letters sent by P.M. to both Janidlo and Hopper made  it

"clear that he is unwilling to communicate and cooperate with any

attorney  unless they respond to his every whim and  unreasonable

requests."  He further found that it was "blatantly unfair for  a

court-appointed attorney to be placed in a position by [P.M.]  of

having  to  be concerned of threats of bodily harm or  having  to

respond  to a bar grievance even though it is not well  founded."

He  therefore  denied  P.M.'s final  motion  for  appointment  of

substitute counsel.  The superior court's characterization of the

nature of P.M.'s conduct with respect to his appointed counsel is

amply borne out by the documentary evidence in the record.13

          P.M.  argues  that he should, at the very  least,  have

received  a  hearing on his claim of cause to  discharge  Hopper.

P.M.  sent a seven-page handwritten motion to the judge,  seeking

to  have Hopper replaced and explaining his reasons.14    He  had

previously  alleged nearly identical grounds against  Janidlo  in

writing.   Having reviewed these pleadings we conclude  that  the

judge  did  not err in considering these allegations so  facially

unpersuasive  as  not  to require an evidentiary  hearing.15   In

J.L.P.  v.  V.L.A. we recognized that where allegations  are  "so

          general or conclusory, and so convincingly refuted by competent

evidence,  as  to  create no genuine issue of material  fact"  no

evidentiary hearing is needed.16  This standard was satisfied  in

the present case.

          2.   P.M. was not denied due process of law.

          P.M.  correctly argues that the due process  clause  of

the  Alaska Constitution grants indigents the right to  appointed

counsel.17   But  "[t]he  right to the  effective  assistance  of

counsel  does  not extend . . . to the right to reject  appointed

counsel  and  have new counsel appointed in the  absence  of  any

showing of cause for such change."18 Although P.M. claims that he

did  show cause (or was not given the opportunity to show  cause)

the record demonstrates, as we concluded above, that P.M. did not

present a prima facie case of justifiable cause to fire either of

his attorneys.19

          We  have upheld a number of court decisions refusing to

appoint  new counsel when the superior court had found  that  the

request for replacement counsel lacked merit or was being used as

a  delay  tactic.20  Here, the superior court made such findings,

and did not err in refusing to appoint replacement counsel.

          The closer question is whether the superior court erred

in  dismissing Hopper.  As P.M. correctly points out, he did  not

affirmatively  waive his right to counsel.  It  might  have  been

preferable  in  this case to have continued  with  the  trial  as

scheduled, with Hopper remaining as P.M.'s attorney.  But it  was

not  error  for  the  court to proceed as  it  did.   Fundamental

fairness  is  the  main requirement of the due process  clause.21

Given  the facts in this case - P.M.'s refusal to work  with  two

separate  appointed attorneys, his threats against his attorneys,

the  bar  complaint against one attorney and his threats  of  bar

complaints, his aggressive and disturbing letters to his own  and

other  attorneys, to the judge, and to his son's foster father  -

as  well  as the superior court's efforts to accommodate P.M.  by

delaying the trial, we find that the superior court's decision to

          have P.M. proceed pro se was not fundamentally unfair.

     B.   The  Superior  Court Did Not Err in Terminating  P.M.'s
          Parental Rights to J.M.H.
          
          The  superior  court  found  by  clear  and  convincing

evidence  that  J.M.H.  was a child  in  need  of  aid  under  AS

47.10.011, and that P.M. had "failed within a reasonable time  to

remedy  the  conduct or conditions in the home  that  placed  the

child at substantial risk of harm so that returning the child  to

his  care  would place the child at substantial risk of  physical

and  mental injury."  The court found that P.M. had abandoned the

child  under  AS 47.10.013 and had neglected the child  under  AS

47.10.014.  The court specifically found that P.M. had  abandoned

J.M.H.22 by leaving the child "without provision for the  child's

support  and without meaningful communication with the child  for

the  first six years of the child's life"; being "absent from the

home  for  a  period of time that created a substantial  risk  of

serious harm to the child"; "fail[ing] to make reasonable efforts

to  locate and communicate with the minor child for the first six

years  of  the  minor's  life"; and failing  to  offer  financial

assistance.   Furthermore, the court found  that  despite  P.M.'s

failures,   he   was  "given  the  opportunity  to   meaningfully

participate  in four suitable case plans by DFYS"  and  that  "he

failed to do so."

          The court further found that P.M. had neglected J.M.H.23

since  birth by failing "to provide the child with adequate food,

clothing,  shelter, education, medical attention and  other  care

and  control necessary for the child's physical and mental health

and  development."  The court found that P.M.'s "willful neglect"

of  the child created the conditions causing J.M.H. to be a child

in need of aid, due to the "substantial physical and mental harm"

caused by the mother during the father's absence.

          In  E.J.S.  v. State, Department of Health  and  Social

Services,  we held that "a parent has the duty to make reasonable

efforts  to locate and communicate with his or her child.   Token

efforts  by  a  parent to communicate with his or her  child  are

          insufficient to satisfy this parental duty."24  In that case, we

affirmed  the  superior  court's  finding  that  the  father  had

physically  abandoned his child, and that his conduct was  likely

to continue.25  That case is strikingly similar to this case.  In

E.J.S.  the record showed that the father had made little  or  no

effort  to  locate his child for three years.  The  father,  like

P.M., was in Washington state, while the mother and child were in

Alaska.26   In  E.J.S. we faulted the father for  not  contacting

DFYS, the Alaska State Troopers, the Alaska Police Department, or

the  Alaska  Child Support Enforcement Division for  information,

and  not  traveling to Anchorage to attempt to find his  child.27

Similarly,  P.M.  made no attempt to locate  his  son  for  three

years, despite knowing that he was in Alaska.

          The   superior   court   additionally   found   by    a

preponderance of the evidence that the Department of  Health  and

Social  Services had made "timely reasonable efforts  to  provide

support  services  to [P.M.] as required by  AS  47.10.086.   The

Department  prepared  four case plans  for  [P.M.]  .  .  .  that

addressed his rehabilitative needs and the special needs  of  the

minor   child,   and  he  refused  and  failed  to   meaningfully

participate  in  said plans."  Accordingly,  the  superior  court

terminated P.M.'s parental rights to J.M.H.28

          P.M. challenges the court's termination of his parental

rights on the grounds that the facts do not support a finding  of

either abandonment or neglect.  P.M. claims that the record  does

not  support the court's finding that he had no contact with  his

son  while  his son was living in Washington state for the  first

two  years of his life.29  P.M. is correct that the record is not

conclusive on this point.  However, even if it were assumed  that

P.M.  had  contact  with his child from 1993  to  1995,30  it  is

uncontested that P.M. had no contact with J.M.H. from 1995  until

he was contacted by DFYS in 1998, and it is similarly uncontested

that  he  made  no effort to locate the child during  this  time.

This  is sufficient to satisfy the requirements for a finding  of

          abandonment and neglect.

          P.M.  claims that he did not abandon his son, and  that

for a time he did not know the whereabouts of his son, except  to

know  that the mother and children were in Alaska.  Elsewhere  in

the  record, however, he claimed that he knew the child's  mother

was  on  welfare  and stated that it is easy to  find  people  on

welfare.   There  is no evidence that P.M. made  any  attempt  to

locate  the mother or J.M.H. after they left Washington state  in

1995.

          In  considering  whether to terminate  parental  rights

under AS 47.10.088, the court is instructed to consider the  best

interests  of  the  child.31  According  to  social  workers  and

therapists, J.M.H. has "blossomed" in the home of the C.'s.  When

J.M.H.  was first taken into protective custody at age  four,  he

suffered seizures and developmental delays.  He has now been with

the  C.'s  for four years, is described as happy and secure,  and

refers to the C.'s as "mom and dad."32

          At trial, J.M.H.'s social worker, Kathy Gray, testified

that  P.M.  was not receptive to the need to participate  in  his

case  plan.   She testified that DFYS was concerned about  P.M.'s

anger, that he "came across as threatening" in a letter he  wrote

to  J.M.H.'s  foster  father, and that his letters  to  her  were

"threatening in nature and argumentative."  She testified that he

refused to undergo a psychological evaluation; that he refused to

sign releases giving DFYS access to his records; that he did  not

comply  with any of DFYS's case plans, despite their  efforts  to

work with him; and that in all of her communication with P.M., he

had  never expressed any concern for J.M.H.'s well-being or shown

any  insight into the child's needs.  Gray further expressed  the

opinion  that P.M. had not shown an ability to provide  a  stable

home for a young child with special needs like J.M.H.33

          Regarding  J.M.H.'s life with the C.'s, Gray  testified

that  "[h]e's  doing  great," and that  DFYS  had  concerns  that

removing him from his current home with the C.'s "would  be  very

          traumatic for him. . . .  [H]e's basically been there almost half

his  life.  And then to remove him into an unknown, unstable home

would  be not something that we would do."  She further testified

that J.M.H. identified Mr. C. as his "dad."

          Clinical  psychologist Susan LaGrande testified34  that

J.M.H. had progressed farther than most people had expected.  She

also  testified  to J.M.H.'s "very special bond" with  his  older

brother, J.J.H., who had taken care of him while the two were  in

their  mother's care.  She commented that nowhere in the  letters

regarding  his  son did P.M. ever express concern for  his  son's

welfare.   She pointed out that P.M. does not have a stable  work

history, a stable drug-free history, or a record of stability and

consistency  that  a  special needs  child  would  require.   Dr.

LaGrande  described J.M.H. as "a specially needful child  who  is

making progress, which is a very good positive thing here."   She

suggested  that the special bond with his brother  was  extremely

important,  and  that  J.M.H. appeared to have  bonded  with  his

foster family.

          J.M.H.'s  counselor, Isa Jennings, testified that  when

the  child entered state custody, he suffered from post-traumatic

stress symptoms, nightmares, anxiety, fear, developmental delays,

and epilepsy.  She testified that J.M.H. "bonded really strongly"

with  his  foster mother and "felt very safe and  protected  with

her,"  and  that he "blossomed" with the C.'s.  She  opined  that

removal  from the C.'s' care would cause J.M.H. to "lose whatever

developmental  gains he has made," and she worried that  J.M.H.'s

seizures might return.

          DFYS's  concerns  about P.M.'s anger management  issues

are  clearly  supported by the record.  Carla  Schettler,  P.M.'s

case  worker at the Washington state penitentiary, testified that

P.M.   "had   a   very   negative   attitude"   and   "was   very

confrontational" with her.  She testified that during his time in

prison, P.M. received multiple infractions for threatening  other

prisoners,  refusing  his cell assignment,  and  for  threatening

          staff.  P.M. also proved to be highly confrontational in his

dealings  with  the  court, and he sent a  number  of  aggressive

and/or  threatening letters to his attorneys, other attorneys  in

the case, the judge, and his son's foster father.35

          P.M.  clearly failed to comply with any of DFYS's  case

plans and refused to cooperate with his social worker, Gray.   He

wrote  to  Gray  that "[y]ou absoulteley [sic]  do  not  have  my

permission for any information you asked for concerning  me  that

you asked for on that confidential release form.  And you MAY NOT

have  any other information that pertains to me for that matter."

He  wrote  to the assistant attorney general regarding Gray:   "I

want this lady to stay away from me, if she sends me anything,  I

will  reject it."  Gray made several attempts to communicate with

P.M. and the assistant attorney general also advised P.M. that it

was in his best interest to work with Gray on a case plan.  P.M.,

however, refused to take anger management or parenting classes,36

to  submit to a psychological evaluation, or to allow DFYS access

to  his criminal history, all of which were required by his  case

plans.

          Based  on  all  of the information in  the  record  and

testimony  at  trial, the superior court's decision to  terminate

P.M.'s  parental  rights to J.M.H. is clearly  supported  by  the

record.  We therefore uphold the termination.

     C.   The  Superior  Court Did Not Err in Refusing  To  Grant
          Custody of J.M.H. to the Parents of P.M.
          
          P.M.  argues that the superior court erred in  refusing

to  grant  custody of J.M.H. to P.M.'s parents.  He  argues  that

under AS 47.14.100(e),37 the court is obligated to place the child

with  a  blood  relative  unless it finds,  based  on  clear  and

convincing evidence, that placement with the relative will result

in  physical or mental injury.  P.M. contends that this  standard

was not met.

          The  guardian  ad litem argues that AS 47.14.100(e)  is

not  applicable.   The  last sentence of AS  47.14.100(f)  (which

concerns  a  relative who agrees that a child  should  be  placed

          elsewhere) states that "[n]othing in this subsection or in (e) of

this  section applies to child placement for adoptive  purposes."

The  guardian ad litem asserts that because J.M.H. is in  a  pre-

adoptive  home, AS 47.14.100(e) does not apply to this case.  The

guardian ad litem is correct.

          In  S.S.M.  v. State, Department of Health  and  Social

Services,  this  court  wrote  that  "[t]he  basic  model  of   a

`placement   for  adoptive  purposes'  within  the   meaning   of

subsection .100(f) would seem to entail placement of a child with

adults who wish to adopt the child."38  In the current case,  the

C.'s   have  clearly  expressed  their  desire  to  adopt  J.M.H.

Likewise, DFYS has repeatedly acknowledged its plan for the  C.'s

to adopt J.M.H.  In S.S.M. we wrote:

          It  is  the  specific  purpose  of  the  DFYS
          placement,  not  the general purpose  of  the
          custody  granted to DFYS, that  is  important
          under   subsection  .100(f).  .  .   .   Thus
          subsection .100(f)'s "placement for  adoptive
          purposes" language refers to DFYS's  specific
          decisions concerning "placement" of  a  child
          in  its custody, not to the court's threshold
          decision  to  give  DFYS "custody"  over  the
          child.[39]
          
In  this case, although the first two case plans, dated September

1996  and  January  1997,  listed permanency  planning  goals  of

"return[ing] home" (by which DFYS meant to return the children to

the  mother,  not to P.M.), the permanency planning  goal  as  of

September 1997 became that of "adoption," by the C.'s.40   DFYS's

goal of adoption by the C.'s and the C.'s' expressed interest  in

the  adoption are reiterated in each subsequent case  plan.   The

grandparents first requested custody of J.M.H. in June  of  1998,

by  which time J.M.H. was already living with the C.'s in a  pre-

adoptive  home.  Under AS 47.14.100(f) and S.S.M., therefore,  AS

47.14.100(e) does not apply to this case.

          Putting  the  statutory issue aside, we note  that  the

court's decision to deny the grandparents' appeal is supported by

the  record.  J.M.H. has been living with the C.'s for more  than

four of his nine years.  Testimony at trial showed that J.M.H. is

          very close to his brother and foster family, has made great

strides  toward  overcoming his developmental  problems,  and  is

happy.    The  experts  testified that  removing  him  from  that

environment  would not be in his best interests and would  likely

cause  him to regress.  We therefore uphold the superior  court's

refusal to place J.M.H. with P.M.'s parents.

V.   CONCLUSION

          Because  the superior court did not err in refusing  to

grant  P.M.  replacement counsel, in terminating P.M.'s  parental

rights,  or  in  denying P.M.'s parents' appeal  that  J.M.H.  be

placed  with them, we uphold the superior court's opinion in  its

entirety.

          AFFIRMED.

_______________________________
     1    The termination of E.H.'s parental rights to J.M.H. and
his older half-brother J.J.H. was upheld by this court in E.H. v.
State, Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001).

     2     At trial, the clinical psychologist testified that  it
appeared  J.M.H.  had "only seen his dad once or  twice."   Judge
Gonzalez  found  that P.M. had no contact with his  son  for  the
first  six  years  of the child's life.  However,  P.M.'s  mother
wrote to P.M.'s attorney that P.M. had visited J.M.H. when he was
a baby.

     3    In re S.A., 912 P.2d 1235, 1237 (Alaska 1996).

     4     E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d
766, 768 (Alaska 1998).

     5    Longwith v. State, Dep't of Natural Res., 848 P.2d 257,
260 n.5 (Alaska 1992).

     6     Brandon v. Corrections Corp. of America, 28 P.3d  269,
273 (Alaska 2001).

     7    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     8     P.M.  also filed a complaint against Janidlo with  the
bar association.

     9    P.M. unsuccessfully appealed this decision.

     10     P.M. failed to appear for the first day of the trial.
On  day two he appeared and was allowed to listen to the tapes of
the first day.  Despite the trial having been calendared for only
two  days, the judge granted P.M.'s request to be allowed to  put
on  his  case on a third day to provide him time to organize  his
case.   Upon  reconvening on day three, the judge granted  P.M.'s
request for an additional hour to organize his notes.

     11     V.F. v. State, 666 P.2d 42, 46 (Alaska 1983) (quoting
Risher v. State, 523 P.2d 421, 424 (Alaska 1974)).

     12    Alaska Child in Need of Aid Rule 12 provides in part:

               (a)   Notice  of Right to Counsel.   The
          court  shall inform the parties at the  first
          hearing  at which they are present  of  their
          respective   rights  to  be  represented   by
          counsel at all stages of the proceedings.
          
               (b)  Appointed Counsel.  The court shall
          appoint  counsel  pursuant to  Administrative
          Rule 12:
          
               (1)   for  a parent or guardian  who  is
          financially unable to employ counsel[.]
          
     13     In his very first letter to Janidlo, P.M. wrote "I AM
either  going to be a blessing to you, or a curse.  But which  of
the  two I AM to you, will be your choice.  Because I will be one
of  the two."  He also admitted to being "defensive" on the phone
with  Janidlo's  office.  In a subsequent letter to  Janidlo,  he
reiterated  that  "I  AM  going to be to you  either  an  eternal
blessing, or a curse."  P.M. later wrote to Hopper that

          I  have sent copies of my letters to the  Bar
          Association as a protection . . . .  But if I
          ever  get suspcious [sic] of your motives  or
          representation   I  will  involve   the   Bar
          Association whether they like it or not and I
          will  not  let  them  not  be  involved  with
          monitoring      and      supervising      our
          attorney/client relationship  if  I  have  to
          write complaints to everyone in the World.
          
He wrote in another letter to Hopper that

          I  will  be suiting (sic) my former attorney,
          you've  got  my word on this.   Jim  I'm  not
          going to play games with you.  You have a job
          to  do, now I expect you to do it to the best
          of your ability.  And if you've got a problem
          with  that, then get out of the way.  Because
          Jim  I  promise you you will not  play  games
          with my life without consequences.
          
Another letter reads:  "Mr. Hopper don't try and play me for some
fool.   You  can't  tell me how the law reads on  issues  I  have
studied,  so don't try bullshitting me.  Save that drag for  some
jake   who   doesn't   know   any   better."    Throughout    his
correspondence, P.M. repeatedly demanded that his counsel  submit
particular  motions; contact his family members; send him  entire
copies  of  large  files; send him all discovery;  and  send  him
copies  of  all applicable laws as well as all Alaska  Court  and
Appellate  Rules  and DFYS/DHSS policies.  He demanded  that  his
counsel follow up on particular motions even when counsel appears
to  have  disagreed with the motions or told P.M. that the  legal
authority contained in the motions did not apply to his case.

     14     In  his motion, P.M. alleged a "conflict of interest"
with  his  attorney.  He alleged that Hopper  did  not  interview
P.M.'s   relatives  (in  Washington  state)  regarding   J.M.H.'s
placement;  arrange  for  the DFYS case  worker  to  fill  out  a
visiting  form  for P.M.; file a motion to stay  the  proceedings
until  P.M.  was out of jail (although Hopper did  file  for  one
continuance  and appeared willing to file for another continuance
to  accomplish  this goal); file a motion to have  the  presiding
judge step down; ensure that the judge ruled on P.M.'s previously-
entered pro se motions; return a copy of a newspaper article P.M.
had  sent him; send P.M. copies of all Alaska appellate rules and
all  annotated  Alaska  statutes; or  send  P.M.  copies  of  all
motions,  pleadings and discovery in the case.  Even  if  proven,
this  conduct would not constitute a conflict of interest between
P.M. and Hopper, or ineffective assistance of counsel by Hopper.

     15    The Alaska Bar Association came to the same conclusion,
writing  in  a  letter to P.M. that there was "an  inadequate  or
insufficient  basis  for  opening an investigation"  into  P.M.'s
complaints against Hopper.

     16    30 P.3d 590, 595 (Alaska 2001) (citation omitted).

     17    See V.F., 666 P.2d at 45.

     18    Id. at 46 n.5.

     19    Filing a bar grievance against an attorney does not by
itself  destroy the attorney-client relationship or  require  the
attorney to withdraw from representation.  See Michigan Comm.  on
Prof'l  and Judicial Ethics, Informal Op. RI-84 (1991) (a  lawyer
need  not  withdraw from representation when  a  client  files  a
grievance against the lawyer provided that a disinterested lawyer
would conclude that the grievance would not adversely affect  the
representation);   cf.   ABA   Comm.   on   Ethics   and   Prof'l
Responsibility, Formal Op. 94-384 (1994) ("A lawyer against  whom
a disciplinary complaint has been filed by opposing counsel in an
ongoing  matter is ordinarily neither required nor  permitted  on
that  account alone to withdraw from representing the  client  in
the matter.").

     20     See  Coleman  v. State, 621 P.2d 869, 877-78  (Alaska
1980)  (upholding  denial  of motion for  assignment  of  private
counsel and denial of petition to withdraw after judge determined
attorney  could properly represent his client, because  "indigent
defendants are not constitutionally entitled to counsel of  their
choice  or private appointed counsel in lieu of a public defender
attorney as a matter of right"); Bentley v. State, 393 P.2d  225,
230-31  (Alaska 1964) (upholding refusal to appoint new  counsel,
finding  that  state is not "obliged to appoint counsel  in  whom
[the  party  has]  confidence" so long as  appointed  counsel  is
"capable");  see also Mute v. State, 954 P.2d 1384, 1385  (Alaska
App.  1998)  ("the right to effective assistance of counsel  does
not  encompass the right to reject appointed counsel and have new
counsel appointed in the absence of any showing of cause for such
change");  Annas  v.  State,  726 P.2d  552,  557  (Alaska  1986)
(finding  that  "[t]he trial court fulfills its obligation  under
the   United  States  and  Alaska  Constitutions  when  it  makes
available to a defendant a competent attorney. A defendant is not
entitled to pick and choose among appointed counsel.").

     21     See, e.g., State v. Mouser, 806 P.2d 330, 336 (Alaska
App. 1991).

     22    Under AS 47.10.013.

     23    Under AS 47.10.014.

     24    754 P.2d 749, 751 (Alaska 1988).

     25    Id. at 751-52.

     26    Id. at 750-51.

     27    Id. at 751.

     28     Termination  of  parental rights is  governed  by  AS
47.10.088(a),  which  provides  that  parental  rights   may   be
terminated if a court finds:

               (1)  by  clear  and convincing  evidence
          that
          
               (A)  the  child  has been  subjected  to
          conduct   or  conditions  described   in   AS
          47.10.011; and
          
               (B) the parent
          
               . . . .
          
               (ii)  has  failed, within  a  reasonable
          time, 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; and
          
               (2)  by  a preponderance of the evidence
          that  the  department has complied  with  the
          provisions   of   AS   47.10.086   concerning
          reasonable efforts.
          
     29     P.M.  does not affirmatively claim that he  did  have
contact  with  his son during the first two years  of  his  son's
life,  only that the record fails to prove that he did  not  have
such contact.

     30     Although not conclusive, the record best  supports  a
conclusion  that  P.M. had limited, if any, contact  with  J.M.H.
during this time, and provided little or no financial support.

     31    AS 47.10.088(c).

     32     J.M.H. has lived with his older brother, J.J.H.,  his
entire  life, and removing J.M.H. from the C.'s' home would  also
separate him from his brother.

     33     J.M.H. had been sexually abused by his mother, led  a
transient  lifestyle for the first several  years  of  his  life,
suffered  from seizures, threw temper tantrums, was very fearful,
and was developmentally behind other children his age.

     34     Dr. LaGrande testified on the basis of her review  of
the  files  in  this  case.  She did not actually  interview  the
various parties.

     35    In a letter to J.M.H.'s foster father, P.M. wrote "I'm
in  prison for assaulting a cop.  So understand I don't fear  the
cops."   This  is  only  one  example  of  the  many  aggressive,
disturbing,  and threatening remarks contained in P.M.'s  letters
to people involved in this case.

     36     P.M.  completed one anger management  class  and  one
parenting class prior to formulation of the first case plan,  but
given  his  ongoing aggressiveness related to this case  and  the
repeated infractions at the prison, DFYS requested that he retake
the classes, which he refused to do.

     37    AS 47.14.100(e) provides in pertinent part:

               A  child  may not be placed in a  foster
          home   or  in  the  care  of  an  agency   or
          institution providing care for children if  a
          relative   by  blood  or  marriage   requests
          placement  of  the  child in  the  relative's
          home.   However,  the department  may  retain
          custody  of  the  child and provide  for  its
          placement  in  the same manner as  for  other
          children if the department
          
               (1) makes a determination, supported  by
          clear and convincing evidence, that placement
          of the child with the relative will result in
          physical  or  mental  injury;  .  .  .   this
          determination may be appealed to the superior
          court to hear the matter de novo[.]
          
     38    3 P.3d 342, 347 (Alaska 2000).

     39    Id.

     40     J.M.H.  did  not  begin living with  the  C.'s  until
November 1997.  DFYS's goal of adoption by the C.'s therefore has
been  consistent ever since it contemplated placing  J.M.H.  with
the C.'s.