Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alyssa B. v. State, Dept. of Health & Social Services, Division of Family & Youth Services (08/17/2007) sp-6147

Alyssa B. v. State, Dept. of Health & Social Services, Division of Family & Youth Services (08/17/2007) sp-6147, 165 P3d 605

     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,

) Supreme Court No. S- 12410
Appellant, )
) Superior Court No. 3PA-02-00037 CP
v. )
SOCIAL SERVICES, DIVISION OF ) No. 6147 - August 17, 2007
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Palmer, Eric Smith, Judge.

          Appearances:  A.B.,  San Ysidro,  California,
          pro   se.   Michael  G.  Hotchkin,  Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for

          Before:   Fabe,   Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]
          BRYNER, Justice.

          Alyssa  B.  appeals  from  an  order  terminating   her
parental  rights to her daughter, Jaclyn.1  Alyssa contends  that
the  superior court violated her due process rights by conducting
the termination trial in her absence and terminating her parental
rights  because she was mentally ill.  Alyssa also raises various
other  challenges  to  both the termination proceedings  and  her
preceding  adjudication  proceedings. Because  we  conclude  that
Alyssas due process rights were not violated when the termination
          trial was held without her, and because the superior courts
termination order was not based on her mental illness  alone,  we
affirm the termination order.  Because the rest of Alyssas claims
lack merit, we affirm those rulings as well.
          In  March  2005  the  Department of Health  and  Social
Services filed a petition to terminate Alyssa B.s parental rights
to  her daughter, Jaclyn.  Jaclyn had been adjudicated a child in
need  of aid in October 2003 and was committed to the departments
custody in February 2004.
          Alyssa  chose  not  to  be represented  by  her  court-
appointed  attorney  at the termination  trial.   The  trial  was
delayed  several times while the court tried to  find  Alyssa  an
attorney  who  would  be  acceptable to her;  Alyssa  also  filed
numerous motions and requests for continuances.  Ultimately,  the
court  appointed the Palmer Public Defender Agency  to  serve  as
Alyssas advisory counsel.  On May 18, 2006, a notice of the  date
of  the termination hearing was mailed to Alyssas current address
in  Talent,  Oregon.  In July Alyssa filed a  change  of  address
form,  notifying  the  court that she had moved  to  San  Ysidro,
California.   The  calendaring  notice  was  re-sent  to  Alyssas
updated address on July 26.
          The  termination  trial was held  on  August  9,  2006.
Alyssa failed to appear in person at trial.  She briefly appeared
telephonically at the outset, announced that she was on  vacation
in  Mexico,  and requested a continuance because  she  could  not
participate from there.  Superior Court Judge Eric Smith  refused
to  continue  the  trial yet again and advised Alyssa  to  obtain
another  phone card and call back.  Alyssa objected to the  trial
proceeding without her, disconnected the call, and did  not  call
          At  trial,  a  department social worker testified  that
Alyssa  had  not had any contact with Jaclyn since February  2003
and  had  not  completed a single element of the  case  plan  for
reunification with Jaclyn.  The social worker also explained that
because  the daughter had bonded with her foster parents and  was
thriving in her current placement, the departments permanent plan
was for the foster parents to adopt her.
          An  expert in clinical psychology testified that, based
on  a  review  of Alyssas case history and other information,  he
believed that Alyssa suffered from severe psychological problems,
that  she was socially maladjusted, and that it would not  be  in
Jaclyns  best  interests to return the child to Alyssas  custody.
The psychologist testified that, given Alyssas failure to live up
to her obligations as a parent and the daughters solid attachment
to  her current parental figures, termination of Alyssas parental
rights was appropriate.
          At  the  close  of trial, the superior court  found  by
clear  and  convincing evidence that Alyssa had abandoned  Jaclyn
because  Alyssa had not worked on her case plan and  refused  all
services,  had  made  only minimal efforts  to  communicate  with
Jaclyn,  and had not visited with her daughter for more than  six
months.2   The court also found by clear and convincing  evidence
that  Alyssa suffered from a mental illness that would result  in
          substantial risk of harm to Jaclyn if the child were in her
custody.3   In addition, the court found by clear and  convincing
evidence  that  Alyssa had not remedied the causes or  conditions
that created the risk of harm to Jaclyn.  The court further found
that the department had made reasonable efforts to reunite Alyssa
and  her  daughter,  but that these efforts  had  failed  because
Alyssa  would  not  accept  the departments  repeated  offers  of
assistance.   Last, the court determined that, given  the  childs
need  for  permanency, it was in the daughters best interests  to
terminate Alyssas parental rights.
          On  September  5, 2006, the superior court  issued  its
final order terminating Alyssas parental rights.
          Alyssa appeals.
     A.   Standard of Review
          In   order  to  terminate  parental  rights  under   AS
47.10.088,  the superior court must find by clear and  convincing
evidence that
          (1)   the child has been subjected to conduct
          or   conditions  described  in  AS  47.10.011
          [children in need of aid statute];
          (2)  the parent

               (A)   has  not remedied the conduct
               or  conditions  in  the  home  that
               place the child at substantial risk
               of harm; or
               (B)     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
          (3)   the  department has complied  with  the
          provisions   of   AS   47.10.086   concerning
          reasonable efforts.[4]
          The  court  must  also find by a preponderance  of  the
evidence  that  termination of parental rights is in  the  childs
best interests.5
          We  review the factual findings underlying the superior
courts  termination  order for clear error  and  will  reverse  a
finding  only  if the record leaves us with a definite  and  firm
conviction that the superior court has made a mistake.6   Whether
the superior courts factual findings satisfy the requirements  of
the  CINA statutes and rules is a question of law that we  review
de novo.7
     B.   Probable Cause Hearing, Adjudication, and Disposition
          Alyssas   first   set  of  arguments  relate   to   the
proceedings leading up to the order adjudicating Jaclyn  a  child
in need of aid, entered in October 2003.
          1.   Moot claims
          Alyssa contends that the department acted illegally and
unreasonably  when it twice took emergency custody of  Jaclyn  in
2002;  that the department acted wrongfully by failing to provide
notice  to  the natural father before taking custody  of  Jaclyn;
that  the  superior  court  denied  Alyssa  due  process  by  not
permitting  her to call her mother as a witness at  the  probable
cause  hearing; that the court violated her constitutional rights
when  it found probable cause to believe that Jaclyn was a  child
in  need  of  aid;  that  the court erred  in  admitting  hearsay
testimony  at the probable cause hearing; and that it also  erred
in  overlooking evidence that Jaclyn was not a victim of abuse or
          Because   Alyssas  claims  concerning  the  departments
decision to take custody of Jaclyn and the probable cause hearing
are   moot  in  light  of  the  superior  courts  later  decision
adjudicating Jaclyn a child in need of aid, which we affirmed  in
Alyssa B. I,8 we need not address these claims.9
          2.   ICWA claim
          Alyssa   claims   that   the  superior   court   lacked
jurisdiction because Jaclyn is an Indian child under  the  Indian
Child  Welfare  Act  (ICWA).10  She contends  that  ICWA  applies
because Jaclyns father is a native Hawaiian.  But the act defines
Indian  tribe  as  any  Indian  tribe,  band,  nation,  or  other
organized  group or community of Indians recognized  as  eligible
for the services provided to Indians by the Secretary because  of
their  status as Indians, including any Alaska Native  village.11
As  the superior court correctly noted, native Hawaiians have not
yet been recognized by Congress as Indian tribes for the purposes
of applying ICWA.12  Accordingly, this claim lacks merit.
          3.   Jury trial at adjudication
          Alyssa  argues  that the trial court improperly  denied
her a jury trial at adjudication.  We decided in Alyssa B. I that
there  is  no  right to a jury trial in CINA proceedings.13   Our
decision controls here.
          4.   Psychological evaluation before adjudication
           Alyssa contends that the trial court erred in ordering
her  to  undergo a psychological evaluation before  adjudication.
We  upheld the superior courts ruling on this point in Alyssa  B.
I.14  There is no need to re-decide the point here.
          5.   Rule 60(b) claims
          Alyssa argues that the trial court erred in failing  to
grant  her  motion for relief from its judgment  of  adjudication
under  Civil  Rule 60(b)(4).15  It is not clear what  Rule  60(b)
motion  Alyssa  refers  to; it appears that  her  argument  could
pertain to either of two filings.  In September 2004 Alyssa filed
what  appears  to  be  a  Rule 60(b)(4) motion,  challenging  the
departments  decision  to take custody of Jaclyn  as  an  illegal
seizure  in  want  of  due process of law.  Because  this  motion
apparently  relates to the superior courts adjudication  finding,
which we affirmed in Alyssa B. I, this issue is now moot.
          Alternatively,  Alyssas argument  might  pertain  to  a
document  and proposed order she filed in May 2006,  citing  Rule
60(b)(4) & (6).16  This filing consists of a rambling thirty-two-
page  affidavit that fails to discuss the civil rule and  appears
          to relate mostly to the departments initial decision to take
custody of Jaclyn, an issue that is now moot.  Because the  point
appears  to  be moot and Alyssas briefing presents  no  colorable
grounds  for granting Rule 60(b)(4) relief, we find no  merit  to
her argument on this point.
          6.   Ineffective assistance of counsel at adjudication
          Alyssa argues that the trial court erred in refusing to
grant   her  oral  motion  for  a  mistrial  due  to  ineffective
assistance  of counsel at the disposition and permanency  hearing
following the superior courts order of adjudication.  She claimed
in  her motion that her attorney had ignored her requests to file
numerous  motions on her behalf.  The court declined to  rule  on
the  motion,  indicating that it would consider the matter  at  a
later time when it ruled on Alyssas appointed counsels request to
          It does not appear from the record that the ineffective
assistance  of counsel claim was addressed again.  But regardless
of  the superior courts decision on the matter, we conclude  that
Alyssas claim fails on appeal because it is inadequately briefed.
Apart from her conclusory allegation of ineffective assistance of
counsel,  Alyssa provides no facts or legal authority to  support
her claim or otherwise enable meaningful appellate review.
     C.   Claims Related to Termination
          Alyssas  next  set of arguments relate to the  judicial
proceedings  leading  up  to the termination  order,  entered  in
September 2006.
          1.   Challenges to Judge Eric Smith
          Alyssa argues that (1) the trial court erred in denying
her  peremptory  challenge to Judge Smith before the  termination
trial;  (2)  Judge Smith erred in refusing to recuse himself  for
cause; and (3) Judge Smith erred in refusing to dismiss the  case
and  disqualify himself due to an alleged pecuniary  interest  in
the matter and cooperative agreement with Alyssas adversaries.
          Under  Civil  Rule  42(c), a judge  or  master  may  be
peremptorily challenged as a matter of right.17  But  Civil  Rule
42(c)(4)  provides  that a party waives this right  to  change  a
judge  if  the party knowingly participates before that judge  in
[a]ny judicial proceeding which concerns the merits of the action
and involves the consideration of evidence or of affidavits.18
          Shortly  after  receiving notice  that  a  petition  of
termination had been filed and that a hearing on the petition had
been  scheduled  before Judge Smith, Alyssa  filed  a  Notice  of
Change  of  Judge, seeking to peremptorily challenge Judge  Smith
from the case.  In challenging Judge Smith after receiving notice
of  the  termination petition, Alyssa appears to have  implicitly
viewed  the termination proceeding as a separate proceeding  from
the  previous adjudication and disposition hearings in her  case,
over  which Judge Smith had presided.  But this view misconstrues
the character of a termination proceeding.
          As  recognized  by Alaskas CINA Rules, when  the  state
files a petition to terminate parental rights to a child who  has
already   been  adjudicated  a  child  in  need  of  aid,   [t]he
termination hearing is a disposition hearing to the court on  the
question  of  whether  the parental rights to  [the]  adjudicated
          child in need of aid should be terminated.19  Hence, a termination
proceeding  is  simply a procedural continuation of  the  earlier
proceedings in the existing CINA case.  And because it  does  not
initiate a new proceeding, the petition does not create the right
to   a   new  peremptory  challenge  under  Civil  Rule  42(c).20
Accordingly, Alyssas time for exercising the peremptory challenge
to  Judge  Smith  ran from the notice of his  assignment  in  the
initial  proceedings  in  the CINA  case.   That  time  had  long
expired,  and  because  Alyssa  had  knowingly  participated   in
previous  judicial  proceedings concerning  the  merits  of  that
action,  she  retained no right to peremptorily disqualify  Judge
Smith  under Rule 42(c) upon receiving notice that he would still
be  handling  the  case  after the state filed  the  petition  to
terminate Alyssas parental rights.
          Alyssas  motion also sought to disqualify  Judge  Smith
for cause, alleging that he was biased.21  This claim lacks merit
because  Alyssa  fails  to  show  that  Judge  Smith  abused  his
discretion in refusing to disqualify or recuse himself; she  does
not  establish that Judge Smith had either a conflict of interest
or bias against her.  We also point out that Alyssas claim for an
independent judge was separately reviewed and denied by  Superior
Court Judge John Suddock.  Alyssa fails to establish any abuse of
discretion in Judge Suddocks ruling.
          2.   Jury trial at termination
          Alyssa argues that the trial court erred in denying her
a  jury  trial at termination.  We conclude that a jury trial  is
not required in a termination hearing for the same reasons it  is
not  required  in an adjudication hearing under  Alyssa  B.  I.22
First,  the Alaska Constitution only preserves a jury  trial  for
legal  causes of action, not those which are equitable in nature,
and  [c]hild protection cases have historically been  treated  as
matters  of equity in Alaska.23  Second, there is no due  process
right to a jury trial in CINA proceedings:
          Although  [t]he private interest of a  parent
          whose parental rights may be terminated . . .
          is  of  the highest magnitude, this  interest
          must be balanced against the childs right  to
          an adequate home and education and the states
          interest  in the childs welfare.  Judges  are
          well  situated to make reliable  findings  in
          CINA  cases,  given their  knowledge  of  and
          familiarity with the controlling law and  the
          prior  proceedings of the case.  As  for  the
          governments interests, the department  points
          out  that  jury  trials in  CINA  proceedings
          could   delay   reunification  or   permanent
          placement, reduce judicial economy,  increase
          the number of parents contesting adjudication
          instead  of attempting to reach an agreement,
          and  compromise  the departments  ability  to
          maximize its resources.[24]
          We affirm the superior courts denial of a jury trial at
          3.   Ineffective assistance of counsel
          Alyssa contends that she repeatedly requested that  the
court  appoint her new counsel.  She maintains that her  advisory
counsel,  Laurel  Bennett of the Palmer Public  Defender  Agency,
refused to give her legal advice or become familiar with the case
file;  Alyssa  goes so far as to argue that her advisory  counsel
actively connive[d] at [her] defeat.
          We  have  recognized that [a] parent has a due  process
right  to  effective assistance of counsel in  a  termination  of
parental rights proceeding.25  But Alyssa was not represented  by
an  attorney.  Instead she elected to proceed pro se.  The  court
appointed  an attorney to serve as Alyssas advisory counsel.   In
S.B.  v. State, we recognized that an advisory attorney appointed
to  help an unrepresented litigant present a case pro se does not
serve the function of representing the litigant as an attorney.26
Accordingly,  we held that pro se defendants ordinarily  may  not
raise claims of ineffective assistance against advisory counsel.27
We  identified only one exception to this rule, stating  that  an
ineffective  assistance claim could be raised when  the  advisory
counsel  oversteps  his  limited role and  assumes  a  degree  of
control consistent with legal representation.28
          Alyssa   makes  no  claim  that  her  advisory  counsel
overstepped  her bounds and took control of the case.29   Because
Alyssas complaint is that the public defender did too little, and
not too much, she therefore does not fall under the exception  to
the  rule.  As we put it in S.B., from the moment she decided  to
represent herself she lost the right to claim that any subsequent
acts of advisory counsel constituted ineffective assistance.30
          4.   Due process rights
               a.   Conducting termination trial without her
          Alyssa  argues  that the trial court violated  her  due
process rights by conducting the termination trial in her absence
and  over  her  objection.  She claims that  she  was  unable  to
proceed  with  the termination trial due to [her]  situation  and
that she was not given sufficient notice to appear.
          Whether a parents due process rights were violated in a
termination  proceeding is a question of law that  we  review  de
novo.31  We set out the test for determining the requirements  of
due process in CINA proceedings in D.M. v. State:
          [I]dentification of the specific dictates  of
          due  process generally requires consideration
          of three distinct factors: First, the private
          interest  that  will  be  affected   by   the
          official  action;  second,  the  risk  of  an
          erroneous   deprivation  of   such   interest
          through the procedures used, and the probable
          value,  if  any, of additional or  substitute
          procedural  safeguards;  and,  finally,   the
          Governments interest, including the  function
          involved  and  the fiscal and  administrative
          burdens  that  the additional  or  substitute
          procedural requirement would entail.[32]
          In  this case, Alyssas private interest affected by the
official  action is of great importance: parental rights  are  of
the highest order. 33  As to the second factor, [t]he crux of due
          process is [the] opportunity to be heard and the right to
adequately  represent ones interests.  The provision of  adequate
notice  commonly guarantees these rights.34  The state  maintains
that  the  superior court took ample measures to  provide  Alyssa
with  adequate notice of the upcoming termination trial.   Though
Alyssa  claimed  at  the beginning of trial  that  she  had  only
received  notice a week before the trial date,  the record  shows
that the court made multiple attempts to provide her with notice.
At  trial,  Judge  Smith discussed the courts efforts  to  notify
          I  double checked the log notes, and [Alyssa]
          was  called while the motion for me to recuse
          myself  was pending in front of Judge Suddock
          and so she was called and told basically well
          be  in touch.  And then we had a hearing  the
          following  week [May 18] and at that  hearing
          we  had  a  new  address  for  [Alyssa],  Mr.
          Winterrowd  was there, we had a  new  address
          for  [Alyssa], we didnt have a  phone  number
          for  her.  And so we didnt call her that day,
          but the notice of the hearing was sent out to
          her  right  after  that  to  her  address  in
          Oregon.  She then moved, and the address  was
          sent  and July 25th we got a notice that  she
          was in California, and staff immediately sent
          the  notice of hearing on July 25th,  so  she
          actually had quite a bit of notice that  this
          hearing  was happening . . . . And she  spoke
          with Cindy Holtmann at some point after that,
          and  Ms.  Holtmann told her  again  when  the
          hearing was.
          The   due   process  analysis  in  this  case  requires
consideration  of the governments interest that  the  termination
trial proceed as scheduled.  Under CINA Rule 18(e), a trial on  a
petition  to  terminate parental rights must be held  within  six
months after the date on which the petition is filed, unless  the
court  finds  good  cause  is shown for  a  continuance.35   When
determining  whether to grant a continuance for good  cause,  the
court  must  consider  the  age of the child  and  the  potential
adverse effect that the delay may have on the child.36  Here, the
termination petition was filed on March 23, 2005, yet  the  trial
was not held until August 9, 2006  over sixteen months later.
          As  the state points out, the delay in trial was caused
by  Alyssas  numerous motions to dismiss the case and  disqualify
the  judge,  requests  to  change court-appointed  attorneys  and
advisory  counsel, and appeals from trial court  rulings.37   The
superior  court accordingly made an express finding that  Alyssas
failure  to appear at trial was yet another attempt to delay  the
proceedings:  [M]y  finding  is that [Alyssas]  effort  today  to
continue  this yet again is just an ongoing effort to delay  this
trial  .  . . and at this point I find that it is not appropriate
or  in the best interests of this child that we delay it any more
and  that theres absolutely no good cause to continue this  trial
yet   again.   The  superior  courts  finding  that  Alyssa   was
          deliberately avoiding trial demonstrates that extraordinary
circumstances existed so that it was not improper for  the  trial
court to proceed with the trial without Alyssas participation.
          Furthermore, we also call attention to the interests of
Jaclyn,  which  are  of paramount importance.   Jaclyn  was  last
removed from Alyssas custody in May 2002, when she was one and  a
half  months  old,  and apart from a brief period  spent  in  the
custody  of her father, has been in foster homes for all  of  her
life.   The  superior court found at trial that the child  needed
permanency in the worst way.  The court also found that the child
was in a good setting with foster parents who wanted to adopt her
and it determined that denying the termination petition would put
the  child  in an unsettled situation.  The superior  court  thus
correctly recognized that if Alyssa caused the termination  trial
to  be  delayed  yet  again, Jaclyns interests  would  have  been
seriously harmed.
          Given  the circumstances created by Alyssa herself,  we
do  not  see  any  additional or substitute procedural safeguards
the superior court could have taken to guarantee Alyssas presence
at  trial.  The court kept updated records of Alyssas address, it
sent  notice  of the trial to her at two separate addresses  with
the  last notice being sent more than two weeks before the  trial
date,  and it informed her again of the trial date when she spoke
with  court  personnel via telephone.  It was Alyssas  choice  to
waive  her  right  to appointed counsel, to  be  on  vacation  in
Mexico, and to refuse to participate telephonically at the trial.
Taking  these  facts into account along with the states  and  the
childs  strong  interests in expeditiously  finding  a  permanent
home, we conclude that Alyssa was not deprived of procedural  due
process  when the trial court held the termination trial  without
               b.   Calling witnesses at trial
          In  addition, as part of her claim that her rights were
violated  when the court conducted the trial without her,  Alyssa
argues  that she was improperly prevented from calling  witnesses
at trial.38
          Because  we have concluded that it was proper  for  the
trial  court  to proceed in Alyssas absence after she voluntarily
failed  to  appear,  it  follows  that  she  cannot  complain  of
prejudice  she suffered by losing testimony that she  could  have
presented  if  she  had chosen to be present at trial.  Moreover,
although  Alyssa  names  the various  witnesses  she  would  have
called,  she  provides nothing to indicate that they  would  have
given  testimony materially disputing the issues at  trial.   The
psychologist  who screened Alyssa for depression,  for  instance,
expressly disclaimed the evaluations relevance to child  custody,
insisting that the evaluation did not cover Alyssas parenting  or
custody issues.
          5.   Hearsay in the final order
          Alyssa   argues   that  the  trial   court   erred   by
incorporating  previous hearsay testimony into  its  final  order
terminating  her parental rights.  But she does not specify  what
previous  testimony  was used in error.  The department  suggests
that  Alyssa  is  challenging  the  termination  orders  language
          incorporating findings based on testimony presented at the
            At  the termination stage, a trial court may rely  on
findings entered at the adjudication stage when they are made  by
clear and convincing evidence.39  Here there is no indication that
the superior court admitted hearsay testimony at the adjudication
hearing   Alyssa  gives  no examples of the  testimony  that  she
characterizes as hearsay and does not point to any objections  to
such  evidence  raised  at the hearing on adjudication.   Because
Judge  Smith  found by clear and convincing evidence that  Jaclyn
was  a  child  in  need  of aid at the adjudication  hearing  and
because  Alyssa has failed to point out any inadmissible  hearsay
in  the   adjudication findings, we find no error in the superior
courts  reliance  on  those  findings  in  its  final  order   of
          6.   Alyssas documentary evidence
          Alyssa  alleges  that she submitted four  psychological
evaluations  to  the court indicating that she  did  not  have  a
mental  illness.   She  claims  that  the  court  ignored   those
evaluations and failed to acknowledge that she completed her case
          It  is  only  apparent  from  the  record  that  Alyssa
submitted    two   documents   to   the   department   containing
psychological information.  One document was a brief, handwritten
progress  report  prepared  by  an unidentified  psychologist  on
December  4,  2003.   It does not appear to set  out  any  formal
diagnosis.   The  second document was a psychological  evaluation
from  Dr. Anita Kemp, who Alyssa claimed was going to testify  at
trial on her behalf.  Dr. Kemps evaluation stated that there  was
no current evidence that Alyssa suffered from depression.
          The superior court did not ignore Dr. Kemps evaluation,
but rather found it to be unreliable for several reasons.  First,
Alyssa  had  not advised the department before the evaluation  so
that it could communicate with Dr. Kemp about the purposes of the
evaluation  and  provide the doctor with collateral  information.
Second,  the  court found that Alyssa had thoroughly  misled  Dr.
Kemp  by  circling  zero for every indicator  of  depression  and
mental  illness when Dr. Kemp evaluated her.  And finally, during
the  trial,  the state published into the record  a  more  recent
letter from Dr. Kemp stating that her earlier evaluation was  not
applicable in a matter of child custody because Dr. Kemp did  not
cover Alyssas parenting or custody issues during the evaluation.
          We  have consistently held that it is the role  of  the
trial court, and not this court, to judge the credibility of  any
witnesses and to weigh conflicting evidence.40  Because the record
showed  that Dr. Kemps evaluation was not fully informed and  was
not  directed  to  the  custody issue, the superior  court  could
properly discount the evaluation and give more weight instead  to
the   testimony  of  the  departments  expert  psychologist,  who
testified   that   Alyssa  suffered  from  severe   psychological
          7.   Placement with blood relatives
          Alyssa  argues that the superior court erred by denying
her  requests to place Jaclyn with blood relatives.   The  record
          shows that on July 25, 2005, Alyssa filed six motions seeking to
place Jaclyn with various blood relatives under AS 47.14.100(e).41
The  superior  court  denied the motions.  Alyssa  did  not  seek
review  of  the courts ruling at the time it was made.  There  is
currently no need to consider the placement decision, because the
superior  courts termination order now renders earlier issues  of
placement moot.42 Accordingly, we decline to decide this claim.
          8.   Request to change foster placement
          Alyssa  claims  that she made many  motions  to  remove
Jaclyn  from abusive foster homes but those motions were  ignored
by  the  court.  On June 15, 2005, Alyssa moved for  a  placement
review  hearing  to  determine  the  best  interests  of  Jaclyn,
alleging  that  the state had placed the child in several  foster
homes  where  she  had  been physically and potentially  sexually
abused.   On July 11, 2005, the superior court denied the motion.
Because  the  denial was a final, appealable  order,  Alyssa  was
required to file a timely appeal in order to preserve this  issue
for  appellate  review.43  Since she did not  timely  appeal  the
order,44 we decline to consider the issue here.
          9.   Hearsay and opinion testimony at trial
          Alyssa also contends that the court wrongly allowed the
states witnesses to provide hearsay and opinion testimony at  the
termination trial.  This section of Alyssas brief consists of two
sentences  and  provides no citations to the trial log notes  for
examples of impermissible hearsay or opinion testimony.
          Given  Alyssas  failure  to identify  any  inadmissible
hearsay, the state plausibly suggests that Alyssa objects to  the
testimony  of  the departments expert psychologist,  Dr.  Michael
Rose.   Dr. Rose testified after reviewing various records  that,
in   his  opinion,  Alyssa  suffered  from  severe  psychological
problems, and awarding custody to her would place Jaclyn at  risk
of  harm.  The state argues that Dr. Rose was qualified to  offer
his  opinion as an expert in clinical psychology; it  points  out
that  Dr.  Rose testified that it was customary for an expert  in
his  field  to rely on the types of documents he used in  forming
his  opinion.  Accordingly, the state contends, his testimony was
explicitly allowed under Evidence Rules 702 and 703.45
          The  states  position has merit.  Under Evidence  Rules
702  and  703,  Dr. Roses testimony did not involve  inadmissible
hearsay  it was admissible as expert scientific opinion.  Because
Alyssa  identifies  no other evidence addressed  in  her  hearsay
claim, we conclude that her claim lacks merit.
     D.   Termination Based on Alyssas Mental Illness
          Alyssa  argues that the superior court improperly  used
her  past or present or future mental illness to terminate  [her]
parental rights.  She relies on our statement in V.S.B. v.  State
that  [m]ental illness, absent related conduct, cannot be a basis
for termination of parental rights.46
          We  first  observe  that the departments  petition  for
termination was based on the grounds that Jaclyn was a  child  in
need  of  aid  under five separate provisions of Alaska  law:  AS
47.10.011(1), (6), (8)(B)(i), (9), and (11).47 At the  conclusion
of  the  trial, the superior court found by clear and  convincing
evidence  that  Jaclyn  was a child in  need  of  aid  under  two
          alternative  grounds:  Alyssas  mental  illness   under
AS  47.10.011(11)  and Alyssas abandonment  of  Jaclyn  under  AS
47.10.011(1).  Because  either finding alone  would  support  the
termination  order  and  because Alyssa does  not  challenge  the
courts  finding  of  abandonment, her  challenge  to  the  mental
illness finding has no impact on the outcome of the case.
          In   any  event,  we  conclude  that  Alyssas  argument
regarding  mental illness lacks merit, since the trial court  did
not  terminate  her parental rights merely because  she  suffered
from  a  mental illness.  Although the expert testimony at  trial
certainly  supported  the conclusion that  Alyssa  suffered  from
chronic  depression  and  borderline personality  disorder,   the
superior  court  did not ground its termination  order  on  these
signs  of  mental  illness alone.  Instead, the court  relied  on
specific conduct by Alyssa that would continue to place Jaclyn at
risk  if  she  were  placed in Alyssas custody: Alyssas  complete
refusal to work with the department and her consequent failure to
develop  any  attachment or bond with Jaclyn in the  three  years
since  Jaclyns  birth.   The court emphasized  that  Alyssa  also
refused  to  get psychological treatment and had  not  taken  the
first  step  of  obtaining  a valid psychological  evaluation  in
accordance with her case plan.  And it further found that  Alyssa
was  completely  unable  to  cooperate  with  authority  figures,
expressing concern that she would not be able or willing  to  get
adequate  help for Jaclyn if the child needed it for  medical  or
other problems.
          We conclude that the superior court adequately combined
the  finding  that  Alyssa  suffered from  a  mental  illness  to
evidence  of actual, conduct-based problems creating  a  risk  of
substantial  harm  to  Jaclyn.  Because the  courts  decision  to
terminate  Alyssas parental rights was not based  on  her  mental
illness  alone, we affirm the superior courts ruling that  Jaclyn
was a child in need of aid under AS 47.10.011(11).
          For  these reasons, we AFFIRM the superior courts order
terminating Alyssas parental rights to Jaclyn.
     1     Alyssa  B. is a pseudonym that we used in  a  previous
appeal  in this case,  Alyssa B. v. State, Dept of Health &  Soc.
Servs.  (Alyssa B. I), 123 P.3d 646 (Alaska 2005).  Jaclyn  is  a
pseudonym we used in another related appeal, Brynna B. v.  State,
Dept of Health & Soc. Servs., 88 P.3d 527 (Alaska 2004).

     2    See AS 47.10.011(1).

     3    See AS 47.10.011(11).

     4    AS 47.10.088(a).

     5    CINA Rule 18(c)(2)(C); AS 47.10.088(b), (c).

     6     Jeff  A.C.,  Jr. v. State, 117 P.3d 697,  702  (Alaska

     7     Id.  (citing  D.M. v. State, DFYS, 995 P.2d  205,  207
(Alaska 2000)).

     8    Alyssa B. I, 123 P.3d at 651.

     9    We have held that [a] claim is moot where a decision on
the  issue is no longer relevant to resolving the litigation,  or
where  it  has lost its character as a present, live controversy,
that  is, where a party bringing the action would not be entitled
to  any relief even if he or she prevailed.  Clark v. State, Dept
of  Corr.,  156 P.3d 384, 387 (Alaska 2007) (quoting Municipality
of  Anchorage v. Baxley, 946 P.2d 894, 899 (Alaska App. 1997) and
citing Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d  1328,
1329 n.2 (Alaska 1995)).

     10     See 25 U.S.C.  1911(b) (2007) (stating that [i]n  any
State  court  proceeding for the foster  care  placement  of,  or
termination of parental rights to, an Indian child not  domiciled
or  residing  within the reservation of the Indian childs  tribe,
the  court,  in the absence of good cause to the contrary,  shall
transfer such proceeding to the jurisdiction of the tribe).

     11    25 U.S.C.  1903(8).

     12    See Arakaki v. Lingle, 477 F.3d 1048, 1066-68 (9th Cir.
2007)  (observing  that Congress and the  executive  do  not  yet
recognize  Hawaiians  as federal Indian tribes);  Kahawaiolaa  v.
Norton,  386  F.3d 1271, 1276, 1282 (9th Cir. 2004) (noting  that
Congress  has  dealt  with  Hawaiians  differently  than   Indian

     13    Alyssa B. I, 123 P.3d at 648-49.

     14    Id. at 650-51.

     15    Alaska R. Civ. P. 60(b)(4) provides: On motion and upon
such terms as are just, the court may relieve a party or a partys
legal  representative from a final judgment, order, or proceeding
for the following reasons: . . . (4) the judgment is void.

     16    Alaska R. Civ. P. 60(b)(6) provides: On motion and upon
such terms as are just, the court may relieve a party or a partys
legal  representative from a final judgment, order, or proceeding
for  the following reasons: . . . (6) any other reason justifying
relief from the operation of the judgment.

     17     Alaska R. Civ. P. 42(c)(1) provides in relevant part:
In all courts of the state, a judge or master may be peremptorily
challenged as follows: . . . In an action pending in the Superior
or District Courts, each side is entitled as a matter of right to
a change of one judge and of one master.

     18    Alaska R. Civ. P. 42(c)(4)(i).  The interpretation and
application of the right to a change of judge under Rule 42(c) is
a  question  of law that we review de novo.  Cook v. Rowland,  49
P.3d  262, 264 (Alaska 2002) (citing Barber v. Barber,  915  P.2d
1204, 1208 n.8 (Alaska 1996) and Staso v. State, Dept of Transp.,
895 P.2d 988, 990 (Alaska 1995)).

     19    CINA Rule 18(b).

     20     For  this  reason, as is typical in  this  procedural
setting,  Alyssas termination petition was filed under  the  same
case  number  as the original CINA case, not under a  new  docket
number.   Cf.  Staso, 895 P.2d at 990 (holding that  [a]  refiled
suit, which is assigned a new docket number, for which new filing
fees  are imposed, and for which new process must issue, provides
this necessary bright-line for determining whether there is a new
right under Civil Rule 42(c) to disqualify an assigned judge).

     21     We  review  for abuse of discretion  a  trial  courts
decision  on  an  issue of recusal or a motion  to  disqualify  a
judge.   Carr v. Carr, 152 P.3d 450, 458 (Alaska 2007); Wasserman
v.  Bartholomew,  38  P.3d 1162, 1170  (Alaska  2002).   We  will
reverse  a judges refusal to step down from a case only  when  it
appears patently unreasonable or when a fair-minded person  could
not  rationally  come to [the same] conclusion on  the  basis  of
known  facts.   Carr,  152 P.3d at 458 (alteration  in  original)
(quoting Long v. Long, 816 P.2d 145, 156 (Alaska 1991)).

     22    See Alyssa B. I, 123 P.3d at 648-50.

     23    Id. at 648.

     24     Id.  at  649-50  (alteration in  original)  (internal
quotation marks and citations omitted).

     25    Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska
2004)  (citing S.B. v. State, Dept of Health & Soc. Servs., DFYS,
61 P.3d 6, 10 (Alaska 2002)).

     26    S.B., 61 P.3d at 15.

     27    Id. (citing Downey v. People, 25 P.3d 1200, 1203 (Colo.

     28    Id. (citing Downey, 25 P.3d at 1204).

     29     A  review  of  the record confirms  that  the  public
defenders  conduct at the termination trial did not rise  to  the
level of active representation  near the end of trial, the public
defender  noted her limited role as advisory counsel  and  merely
restated Alyssas position that she was against termination.

     30    S.B., 61 P.3d at 15.

     31     Jeff  A.C., Jr. v. State, 117 P.3d 697,  702  (Alaska

     32     D.M. v. State, DFYS, 995 P.2d 205, 212 (Alaska  2000)
(quoting Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)).

     33     Id. (quoting In re J.L.F. & K.W.F., 828 P.2d 166, 170
(Alaska 1992), overruled on other grounds by In re S.A., 912 P.2d
1235, 1241 (Alaska 1996)).

     34     Id. at 213-14 (quoting Matanuska Maid, Inc. v. State,
620 P.2d 182, 192 (Alaska 1980)).

     35    CINA Rule 18(e).

     36    Id.

     37     Alyssa  made the following filings after  the  states
termination petition was filed: May 2, 2005 Motion to Dismiss and
Grant  Sole Legal and Physical Custody to Natural Mother; May  2,
2005   Notice   of   Change   of  Judge  (Peremptory   Challenge:
Disqualification of Judge); May 13, 2005 Expedited Motion to Stay
CINA  Trial  Court  Proceedings  Pending  Appeal;  May  23,  2005
Expedited  Motion  for  Continuance;  May  31,  2005  Motion   to
Disqualify  Judge  Eric  Smith  and  Demand  for  an  Evidentiary
Hearing;  June 6, 2005 Petition to Terminate States  Custody  and
Demand for an Evidentiary Hearing; June 6, 2005 Motion to Dismiss
and  Demand  for  a Misconduct Hearing; June 20, 2005  Motion  to
Compel  GAL;  June  28,  2005 Reply to Opposition  to  Motion  to
Disqualify  Judge  Eric  Smith  and  Demand  for  an  Evidentiary
Hearing; July 5, 2005 Motion to Dismiss and Grant Sole Legal  and
Physical  Custody  to Natural Father; July  12,  2005  Motion  to
Strike the Petition for Termination of Parental Rights; July  19,
2005  Reply to Opposition to Petition to Terminate States Custody
and  Demand for an Evidentiary Hearing and Motion to Dismiss  and
Demand  for  a  Misconduct  Hearing; July  25,  2005  Motion  for
Placement  of [Daughter] with Blood Relative; November  10,  2005
Withdrawal of Request for Court Appointed Attorney; December  23,
2005  Expedited Motion for Continuance and an Extension of  Time;
February  16, 2006 Expedited Motion for Stay [of] the Termination
Trial;  February 17, 2006 Motion to Dismiss;  February  17,  2006
Demand  for  Jurisdictional Hearing;  April  11,  2006  Expedited
Motion   for  Default  Judgment;   April  17,  2006  Motion   for
Independent Judge and Motion to Dismiss; April 17, 2006 Expedited
Demand  for  an Evidentiary Hearing Before an Independent  Judge;
April  21,  2006  Objection and Reply to Response  to  Motion  to
Dismiss  and  Demand for Jurisdictional Hearing and Objection  to
Motions  to  Accept Late-Filed Responses; May 8, 2006 Motion  for
Reconsideration  and Demand for an Evidentiary Hearing;  and  May
11, 2006 Motion of [Alyssa] in support of Order.

     38     Alyssa  claims that she had served  subpoenas  on  an
assistant attorney general, her public defender advisory counsel,
and the guardian ad litem in order for them to testify as hostile
witnesses about their cooperative agreements for gaining  custody
of  Alyssas  child.   She  also claims that  a  psychologist  who
evaluated  her, and Judge Julie Macek of Montana, who found  that
Alyssa  did  not  have  a  serious mental illness  and  therefore
ordered  the  state  of  Montana to return  Alyssas  son  to  her
custody, would have testified on her behalf had she been present.

     39    D.M., 995 P.2d at 209.

     40     Martin v. Coastal Vills. Region Fund, 156 P.3d  1121,
1129  (Alaska 2007) (citing Silvan v. Alcina, 105 P.3d  117,  122
(Alaska 2005)).

     41    AS 47.14.100(e) provides in part that:

          (e)   When a child is removed from a  parents
          home,  the department shall place the  child,
          in   the  absence  of  clear  and  convincing
          evidence of good cause to the contrary,
          (1)   in  the least restrictive setting  that
          most  closely approximates a family and  that
          meets the childs special needs, if any;
          (2)    within  reasonable  proximity  to  the
          childs  home, taking into account any special
          needs of the child and the preferences of the
          child or parent;
          (3)    with,  in  the  following   order   of
          (A)  an adult family member[.]
     42    Erica A. v. State, Dept of Health & Soc. Servs., DFYS,
66 P.3d 1, 10 (Alaska 2003); see also Martin N. v. State, Dept of
Health & Soc. Servs., DFYS, 79 P.3d 50, 57 (Alaska 2003).

     43     See  Owen M. v. State, OCS, 120 P.3d 201, 203 (Alaska
2005)  (citing  S.S.M. v. State, Dept of Health  &  Soc.  Servs.,
DFYS,  3  P.3d  342,  345  (Alaska 2000) (holding  order  denying
placement  of  child in need of aid with his  sister  was  final,
appealable order)).

     44    See Alaska R. App. P. 204(a)(1).

     45    Alaska R. Evid. 702(a) provides:

          If    scientific,   technical,    or    other
          specialized knowledge will assist  the  trier
          of  fact  to  understand the evidence  or  to
          determine   a  fact  in  issue,   a   witness
          qualified  as an expert by knowledge,  skill,
          experience,   training,  or  education,   may
          testify thereto in the form of an opinion  or
          Alaska R. Evid. 703 provides:

          The facts or data in the particular case upon
          which an expert bases an opinion or inference
          may  be  those perceived by or made known  to
          the  expert at or before the hearing.   Facts
          or  data  need not be admissible in evidence,
          but  must be of a type reasonably relied upon
          by experts in the particular field in forming
          opinions or inferences upon the subject.
     46    V.S.B. v. State, Dept of Health & Soc. Servs., DFYS, 45
P.3d 1198, 1206 n.22 (Alaska 2002).

     47    AS 47.10.011 provides in relevant part:

          Subject to AS 47.10.019, the court may find a
          child  to  be a child in need of  aid  if  it
          finds by a preponderance of the evidence that
          the  child has been subjected to any  of  the
          (1)   a parent or guardian has abandoned  the
          child  as described in AS 47.10.013, and  the
          other  parent  is  absent  or  has  committed
          conduct or created conditions that cause  the
          child to be a child in need of aid under this
          . . . .

          (6)    the  child  has  suffered  substantial
          physical harm, or there is a substantial risk
          that   the   child  will  suffer  substantial
          physical harm, as a result of conduct  by  or
          conditions  created  by  the  childs  parent,
          guardian,  or custodian or by the failure  of
          the   parent,   guardian,  or  custodian   to
          supervise the child adequately;
          . . . .

          (8)   conduct by or conditions created by the
          parent, guardian, or custodian have
          . . . .

          (B)  placed the child at substantial risk  of
          mental injury as a result of
          (i)   a  pattern  of rejecting,  terrorizing,
          ignoring,  isolating, or corrupting  behavior
          that  would, if continued, result  in  mental
          . . . .

          (9)   conduct by or conditions created by the
          parent, guardian, or custodian have subjected
          the  child  or  another  child  in  the  same
          household to neglect;
          . . . .

          (11) the parent, guardian, or custodian has a
          mental     illness,     serious     emotional
          disturbance, or mental deficiency of a nature
          and   duration  that  places  the  child   at
          substantial risk of physical harm  or  mental
This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights