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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Seth D. v. State, Dept of Health & Social Services, Office of Children's Services (01/17/2008) sp-6226

Seth D. v. State, Dept of Health & Social Services, Office of Children's Services (01/17/2008) sp-6226, 175 P3d 1222

     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


SETH D., )
) Supreme Court No. S- 12621
Appellant, )
) Superior Court No. 3KN-03-18A CP
v. )
) O P I N I O N
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL ) No. 6226 January 17, 2008
SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Charles T. Huguelet, Judge.

          Appearances:   George J. Dozier,  Jr.,  Eagle
          River,   for  Appellant.   Megan   R.   Webb,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for  Appellee.  Devinder Brar, Anchorage, for
          Guardian Ad Litem Shelly Wilson-Schoessler.

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

          EASTAUGH, Justice.
          FABE,  Chief  Justice, with  whom  CARPENETI,
          Justice, joins, concurring.
I.   INTRODUCTION
          A   father  who  was  a  state  prisoner  asked  to  be
transported  so he could attend the trial on the states  petition
to  terminate his parental rights.  The superior court denied his
requests  and, following a six-day trial, terminated his parental
rights.  He argues here that denying his motion was both an abuse
of  discretion  and a denial of procedural due process.  He  also
argues  that  it  was  error to terminate  his  parental  rights.
Because  he  participated telephonically the first four  days  of
trial,  personally attended the last two days, and  testified  in
person, there was no deprivation of due process.   And because he
testified  in  person  and was given an adequate  opportunity  to
participate and confer telephonically with his lawyer during  the
first  four  days  of trial, any possible error  in  applying  AS
33.30.081 was harmless. We also conclude that the superior  court
did  not  commit clear error in terminating the fathers  parental
rights.  We therefore affirm.
II.  FACTS AND PROCEEDINGS
          Lacey  D. is the daughter of Seth and Tiffany D.1   She
was born in January 2001.2
          The  Alaska  Office of Childrens Services  (OCS)  first
received a report of harm regarding Lacey in June 2002 but closed
its  file  because  the family could not  be  located.   When  it
received  a  second report of harm in December 2002, OCS  located
Seth  and  Tiffany and conducted a home visit to their apartment.
During  the  visit,  the  social worker found  a  marijuana  grow
operation in the apartment.  OCS consequently requested that Seth
be  tested for illegal substance use.  The results were positive.
OCS  therefore  recommended that Seth  participate  in  substance
abuse  treatment and prepared a care and safety plan.  He refused
to  comply  with  OCSs recommendation and only engaged  with  OCS
through counsel.
          In  February  2003  OCS requested a  temporary  custody
hearing.   After a hearing the superior court entered a temporary
custody  order, finding that there was probable cause to  believe
Lacey was a child in need of aid under AS 47.10.011(6), (9),  and
(10).   The court granted OCS temporary custody; OCS then allowed
Lacey to remain in Seths care.
          In  July 2003 Seth stipulated that Lacey was a child in
need  of aid pursuant to AS 47.10.011(1) and (10) for the reasons
stated  in the petition for adjudication filed in February  2003.
The  superior  court adopted the stipulation the  same  day  Seth
signed it.
          Seth  began  a  new  plan with OCS in  September  2003.
Lacey  was still in his physical custody and they appeared to  be
healthy, happy, and well-bonded.
          Seth  was  jailed  in November 2003 for  violating  the
terms   of   his  probation  by  testing  positive  for   illegal
substances, and Lacey was removed from his custody.  OCS  briefly
placed Lacey with her maternal grandmother before placing her  in
foster care in Kenai.  In November 2003, following a November  25
hearing, the superior court granted OCS custody of Lacey  for  up
to two years.
          In April 2004, after Seths release from jail, Lacey was
          placed with Seth to begin trial home visits.  The placement
seemed  acceptable to the social worker, but while Lacey  was  in
Seths physical custody he was twice charged with shoplifting;  he
missed  his arraignment on one of the charges, and a warrant  was
issued for his arrest.
          Seth  was  arrested  in  August 2004  while  Lacey  was
present.   The arresting officer thought he appeared to  be  very
high.  Tiffany was also arrested at this time.  Lacey reacted  to
seeing  her  father  in  handcuffs  and  her  mothers  arrest  by
screaming, crying, acting frantic, and pleading with the officers
not   to  arrest  her  mother.3   When  arrested  Seth  possessed
prescription morphine pills that had not been prescribed to  him.
Lacey was removed from Seths custody in August 2004.
          OCS  filed  a  petition in February 2005  to  terminate
Seths  parental  rights.  It amended the petition  about  a  year
later.  Trial was scheduled for the week of August 7, 2006.
          Seth,  who was then a prisoner of the State of  Alaska,
filed a mid-July 2006 motion asking that he be transported to the
parental-rights  termination trial so he could attend  the  trial
and  testify.4   The court denied the motion on August  1.   Seth
gave  additional reasons for his motion on the first  morning  of
trial.   The superior court again denied the motion.   Trial  was
conducted over six days, on August 7, 8, 10, 11, and September  7
and  8, 2006.  Seth remained incarcerated until mid-August  2006.
He  participated telephonically from jail the first four days  of
trial  and  was  physically present the  last  two.   Twenty-four
witnesses, including Seth himself, testified.
          Following  trial, the superior court found  that  Lacey
was a child in need of aid under AS 47.10.011(1), (8), and (10).5
The  superior  court also found that Seth had  not  remedied  the
conduct or conditions that put Lacey at substantial risk of harm,
that OCS had complied with the reasonable effort requirements  of
AS  47.10.086,  and  that  it was in  Laceys  best  interests  to
terminate  Seths parental rights.  The court also  made  findings
justifying  the  termination of Tiffanys  parental  rights.   The
court then ordered Seth and Tiffanys parental rights terminated.
          Seth appeals.6
III. DISCUSSION
     A.   Standard of Review
          We  review decisions regarding the telephonic trial  or
hearing  appearance  of  a party for abuse  of  discretion.7   We
review  de novo whether a decision requiring a parent  who  is  a
state  prisoner  to  participate telephonically  rather  than  be
transported violates his right to due process.8  We will  reverse
the  factual findings of the superior court in a parental  rights
termination case only when they are clearly erroneous, a standard
met  only if we are left with a definite and firm conviction that
a mistake has been made after review of the entire record.9  When
reviewing  factual findings, we view the evidence  in  the  light
most favorable to the party prevailing below.10  Whether the trial
courts  findings  are  consistent with  the  child-in-need-of-aid
statutes is a question of law that we review de novo.11  We  bear
in  mind  at  all  times that terminating parental  rights  is  a
drastic measure.12
     B.   The  Superior Court Did Not Violate Seths Right to  Due
          Process by Denying His Motion for Transport.
          
          Seth argues that he was denied his due process right to
be  present in the courtroom throughout the trial by the superior
courts denial of his motion for transport.13  He first asked about
three  weeks before trial was to begin to be present at trial  so
he  could testify in person as well as hear the witnesses and see
the evidence.  He next asked at the beginning of the first day of
trial  to be transported so he could hear the witnesses  and  see
the evidence himself because he has a learning disability.
          There  was no violation of Seths due process rights  on
the  first  ground he raised  attendance so he could  testify  in
person and the court could assess his credibility  because he did
in  fact testify in person at trial after his incarceration ended
mid-way  through  the trial.  Similarly, any  possible  error  in
failing to grant Seths motion to transport so he could testify in
person was also harmless.14
          Seths  second argument for transport, made on the first
day  of  trial,  advanced a new theory.  It was  founded  on  his
assertion that a learning disability made his personal attendance
necessary so he could hear the witnesses and see the evidence.
          We  have  stated  that case law has not  established  a
procedural  due  process  right of  incarcerated  parents  to  be
transported to parental rights termination trials.15  In  Richard
B.  v. State, Department of Health & Social Services, Division of
Family  and Youth Services16 we refused to extend the holding  of
Whitesides  v.  State, Department of Public Safety,  Division  of
Motor  Vehicles17  to  termination  trials.   In  Richard  B.  we
distinguished  Whitesides, stating [i]n Whitesides we  considered
whether a hearing officer must permit an individual to appear  in
person  for  a  hearing whereas in a termination hearing  we  are
asked to decide whether the state should be required to transport
a prisoner across the state for a trial.18
          Although  transportation of an incarcerated  parent  to
attend  a  termination trial is not required by due  process,  we
have  applied  the  balancing test  of  Mathews  v.  Eldridge  to
determine  whether  a  parent  was  deprived  due  process  in  a
termination hearing.19  That test requires the court to consider:
          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.[20]
          
          We now consider the three factors.
          Interest  of a parent.  Seth correctly points out  that
the  right  to  the  care and custody of  ones  own  child  is  a
          fundamental right recognized by both the federal and state
constitutions.21  This right is one of the most basic of all civil
liberties.22  The right to custody of ones own child clearly falls
within  the protections of the due process clause and  should  be
accorded significant weight.23
          The  risk  of  wrongful deprivation.  Seth argues  that
there  was  a  high  risk of an erroneous  decision  because  his
ability  to  participate was undermined by his  mental  handicap.
Seth contends he suffers from a lack of verbal comprehension, and
points  to  his  trial  testimony that  he  does  not  understand
vocabulary   and  that  he struggles with  comprehension  because
theres  no vocabulary that breaks down those words.24 Seth argues
here that [h]ad he been present and sitting with his attorney  he
could  have  cleared up any questions regarding the testimony  by
simply asking his attorney for an explanation.
          The  state contends that the evidence shows that  Seths
learning disability is not auditory in nature, implying that  his
disability  did not prejudice his telephonic trial participation.
The state also points out that a previous test placed Seths IQ in
the  normal range;25 that trial testimony is consistent with  the
contention that Seths learning disability was related to  reading
comprehension  but  that  he has no problems  with  understanding
information if someone reads aloud to him; and that there was  no
evidence  or  representation before or  during  Seths  telephonic
participation at trial that Seth could not understand  the  trial
events and evidence being presented.
          We  have held that an individuals due process right  to
confront  and  cross-examine witnesses was  not  denied  when  he
participated telephonically.26  Furthermore, even assuming  Seths
disability  extends to verbal comprehension, Seth fails  to  show
how  the trial would have been different had he been sitting next
to  his  attorney.   There is no evidence  that  Seth  could  not
understand   the  trial.   At  no  point  during  his  telephonic
participation  did  Seth  assert  that  he  was  having   trouble
understanding the information presented.27
          The interest of the government.  The primary government
interests  involved  are the costs and administrative  burden  of
transporting a prisoner to trial.  In opposing Seths  motion  for
transport  the  Alaska Department of Corrections (DOC)  discussed
the  cost  of transport and asserted that transporting Seth  from
Seward  to  Kenai and back would cause an unnecessary expenditure
of  state  resources  because it would require  the  presence  of
understaffed judicial services officers, which could cause  delay
in other trials and require overtime pay.
          Seth  argues  that due process was not met because  the
case  involved  a  fundamental  right,  his  learning  disability
required  his  presence in the courtroom, and the  administrative
costs were negligible.
          We  must  weigh the interests at stake along  with  the
benefits  and  burdens  that would result from  implementing  the
proposed  rule.28  Balancing the factors, we conclude that  Seths
right  to  due  process was not violated.  Even though  the  DOCs
showing of cost and burden associated with transporting Seth  was
remarkably nonspecific and conclusory, and even though the  trial
          and procedure undoubtedly implicated Seths fundamental rights, he
has  failed to show on appeal how the risk of infringing  on  his
rights could have been assuaged by his personal presence for  the
first four days of trial.29
     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Denying  Seths  Request To Attend the  Parental  Rights
          Termination Trial.
          
          Seth   also  argues  the  superior  court  abused   its
discretion  by  refusing  to order his transport  to  trial.   On
appeal, Seth  argues that the state failed to present evidence of
the   actual   costs  of  transportation,  that  Seths   physical
attendance would not have presented a substantial risk of danger,
that   the   issues  involved  in  trial  were  of   the   utmost
significance,  that the court failed to continue the  trial,  and
that  the need for [Seths] personal attendance was of the highest
order  because  telephonic participation failed  to  protect  his
interest  in light of his learning disability.  Seth argues  that
the  court  could  not  actually assess the  costs  of  transport
because   the   state  failed  to  provided  detailed   financial
information about the costs.
          It is important to keep the sequence of Seths arguments
in mind.
          Need  to  testify.  Seths pretrial motion for transport
argued  that he needed to be present to testify.  This basis  for
relief  was satisfied when Seth personally attended the last  two
days  of trial and testified live.  Any error in failing to grant
the  motion  on  this  basis was therefore  harmless.   We  note,
however,  that this basis would have made denial problematic  had
Seth not been fortuitously released from prison mid-trial.
          Learning  disability.   The trial  court  denied  Seths
motion for transport and explained its decision on the first  day
of  trial.   Responding  to this ruling,  Seth  argued  that  his
presence was necessary because he had a learning disability  that
would  make  it more difficult for him to understand and  process
information  without being present at trial to talk  to  counsel.
Seth broadly suggested that evidence would support this assertion
but  presented no evidence then or later to confirm this  alleged
disability or to suggest how trial would be different if he  were
present.
          Responding  to  the learning disability arguments,  the
court  ruled  that  telephonic participation was adequate  for  a
fair trial.  The court also told counsel that:
          Ill  do anything that I can to make it easier
          for  you.   If you need a break to  stop  and
          talk  with  your client, well  do  that,  you
          know,  shut things down and give you a  place
          where   you   can   talk  to  [your   client]
          privately.   Well  do  whatever  we  can   to
          accommodate this less than perfect situation.
          
          Only  later  in  the trial did Seth  explain  that  his
learning  disability arose out of either auditory problems  or  a
failure  to  understand words, making it  necessary  for  him  to
          attend trial.  Because Seth had not raised that contention
earlier,  it was not before the court on the first day of  trial,
when Seth last renewed his request for transportation.  Based  on
what the superior court heard before testimony began on the first
day  of trial, the court could have justifiably thought that  the
telephonic-attendance   procedure  it  adopted    including   the
availability of breaks to confer with counsel  was sufficient  to
allow Seth to be an active participant.30  The court did not abuse
its discretion in denying Seths renewed request for transport  on
the first day of trial.
          Assist  counsel.  On appeal Seth also argues he  needed
to  be  present to assist counsel during trial.  He first offered
this  explanation  on the first day of trial, but  he  failed  to
demonstrate that his physical presence was needed at the trial to
assist his attorney.  The superior court gave him the opportunity
to  confer with counsel by telephone.  We therefore conclude that
the  superior court did not abuse its discretion in denying Seths
motion to transport.
          Even  though we have concluded that Seth was not denied
due  process and that the trial court did not abuse its statutory
discretion,  this case illuminates potential problems  concerning
the  transportation statute31 and a parents due process right  to
testify  at  a termination trial.  As we saw above,  due  process
guarantees  apply  to termination proceedings.   Parents  have  a
fundamental  right to the care and custody of their children  and
this   right  does  not  immediately  cease  when  a  parent   is
incarcerated.   When  applied  to  termination  proceedings,  the
transportation  statute, AS 33.30.081(f), appears  to  provide  a
reasonable  balance between a parents interests in being  present
at  a  termination proceeding and the states interests in dealing
with  state  prisoners.  The statutory standards,  if  rigorously
followed, seem likely to satisfy due process.
          If  a  parent wishes to testify at a termination trial,
the  state must present sufficient specific evidence allowing the
superior court to decide knowledgeably whether to grant a  motion
for  transport  made  under  AS 33.30.081.32   Here  DOCs  entire
analysis  of  the dispute was contained in one paragraph  of  its
opposition to Seths motion to transport:
          [Seths]  transport will cause the unnecessary
          expenditure  of state resources to  transport
          him  from Seward to Kenai for trial and  then
          back  to  Seward.  [Seths] presence at  trial
          would  also  require  under-staffed  judicial
          services  officers  to  be  present  in   the
          courtroom  for the entirety of  the  four-day
          trial   which  could  cause  delay  in  other
          proceedings and could result in overtime  for
          judicial services.
          
This  paragraph lacks sufficient analysis or information to allow
a  superior court to properly weigh whether to grant a motion  to
transport.
          We  addressed a superior courts denial of a  motion  to
transport  in  Richard B.33  In that case we concluded  that  the
          trial court did not abuse its discretion in denying a prisoners
request to attend a parental rights termination proceeding.34   A
Seward prisoner sought transport to attend a Bethel trial.35  The
state argued that transport would require an officer to transport
the  prisoner from Seward to Bethel and back, and that the  state
would have to house the prisoner in a crowded Bethel facility for
a number of days.36  The  state also showed that transporting the
prisoner  would  possibly illegally overcrowd the prison  system,
create  a ripple effect of prisoner transport within the  system,
and  could  require significant planning and coordination.37   We
affirmed  the  superior  courts denial of the  prisoners  request
because  the  states demonstration of significant  transportation
costs was persuasive.38
          But  as Seth argues here, Kenai is not far from Seward,
where  he  was  imprisoned.  Both communities  are  on  the  road
system.  Seth did not have to be moved across a long distance  at
great  expense,  unlike the prisoner in Richard B.39   We  assume
based  on  DOCs  opposition  that transporting  Seth  would  have
affected  personnel  assignments,  security,  and  expense.   But
neither DOC nor the Department of Public Safety made any adequate
showing  about what might have been required.  The state did  not
even  discuss  any security risk Seth might have presented.   Had
Seths incarceration not ended in time for him to testify live  at
trial,  DOCs opposition would be slender support for the superior
courts  decision to deny the motion to transport.  Therefore,  in
the  future, in opposing a transport motion made by an imprisoned
parent seeking to testify at a termination proceeding, the  state
must  provide  a  specific  showing, and  the  trial  court  must
determine  whether the states showing is specific and  sufficient
before denying a motion to transport.
     D.   The  Superior  Court Did Not Err in  Terminating  Seths
          Parental Rights by Determining that Lacey Is a Child in
          Need of Aid.
          
          Seth argues the superior court erred in terminating his
parental  rights   because  there was not  clear  and  convincing
evidence to support a finding that Lacey was a child in  need  of
aid  under AS 47.10.011(1) (the parent has abandoned the  child),
(8) (the parents conduct has led to mental injury), and (10) (the
ability  to  parent  has  been  substantially  impaired  by   the
addictive or habitual use of an intoxicant).
          Because  we  affirm  the superior courts  holding  that
Lacey  was a child in need of aid on one of the three bases found
by  the  superior court, there is no need to consider  the  other
two.40
          We therefore consider the superior courts determination
that  Lacey  was  a  child in need of aid under AS  47.10.011(10)
because  it found that Seths ability to parent had been  affected
by  his  use  of  intoxicants.  Seth argues  that  there  was  no
evidence that his ability to parent had been affected by his  use
of  intoxicants.  He argues that two social workers never saw him
impaired  when  they visited to check on Lacey.  He  also  argues
that  the  presumption  contained in  AS  47.10.011(10)   that  a
relapse  within  one year is prima facie evidence of  substantial
impairment  does not apply because he was still in treatment.
          Alaska Statute 47.10.011(10) states that a child is  in
need   of  aid  if  the  parents  ability  to  parent  has   been
substantially  impaired by the addictive or habitual  use  of  an
intoxicant,  and the addictive or habitual use of the  intoxicant
has  resulted  in a substantial risk of harm to the  child.   The
presumption states that the resumption of use of an intoxicant by
a  parent  .  . . within one year after rehabilitation  is  prima
facie  evidence  that  the  ability to  parent  is  substantially
impaired.41  In Stanley B. v. State, DFYS, we upheld the superior
courts  finding that Stanleys ability to parent had been affected
by  his  use  of  intoxicants.42  In  that  case,  we  said  that
subsection .011(10) may be satisfied by evidence that  a  parents
drug  use  is at least partially responsible for his current  and
past incarcerations, and that his frequent and prolonged absences
while incarcerated substantially impair his ability to parent.43
          Here  there  was sufficient evidence for  the  superior
court to find under AS 47.10.011(10) that Seths ability to parent
had   been  substantially  impaired  by  his  addictive  use   of
intoxicants and that this use had resulted in a substantial  risk
of  harm  to  Lacey.   In  making its  finding  under  subsection
.011(10),  the  trial court relied on:  testimony that  Seth  had
ongoing  problems  with  addiction to  prescription  and  illicit
drugs;  treatment program records showing that Seth  participated
in  programs  to  treat opioid dependence,  cannabis  abuse,  and
cocaine  abuse;  evidence Seth was discharged from  a  number  of
treatment  programs for a variety of reasons; evidence  of  Seths
relapse with morphine for six days; evidence of Seths attempt  to
steal  money  and  drugs from the police while  he  worked  as  a
confidential informant; records of Seths no-shows and refusal  to
          submit to urine analysis, and positive tests; and evidence Seth
cut off his ankle monitor and absconded from a treatment program.
          Seth  argues that his use of intoxicants did not expose
Lacey  to  a substantial risk of harm.  Seth points out that  two
social workers noted that he was attentive toward Lacey and  that
she  appeared to be doing well in his care.  Seth further  argues
that  there  was  no evidence that he exposed  Lacey  to  a  drug
operation.   The  state responds that Seth was  often  unable  to
parent Lacey because he was incarcerated or under house arrest as
a  result  of  his  criminal conduct, which  was  linked  to  his
substance  abuse.   Additionally  the  state  asserts  that  Seth
potentially exposed Lacey to members of the criminal element  and
risks  inherently  associated with drug use,  drug  buys,  and  a
marijuana  grow  operation.  This was substantial  evidence  that
Seths substance abuse exposed Lacey to a substantial risk of harm
as  it led to, among other problems, the marijuana grow operation
in  the  home in which Lacey lived, and caused Seth to be  absent
for much of Laceys life.
          There was therefore substantial evidence upon which  to
find  Lacey  was  a child in need of aid under AS  47.10.011(10).
There was sufficient evidence on the record to find that Seth had
an addiction to prescription and illegal intoxicants.  It appears
that many of Seths legal problems and incarcerations were related
to   his  use  of  intoxicants  and  that  his  use  resulted  in
substantial harm to Lacey.
          Because we conclude that the superior court did not err
in  finding facts demonstrating that Lacey was a child in need of
aid  under  AS  47.10.011(10), we do  not  need  to  address  the
presumption contained in that subsection.
     E.    The  Superior Court Did Not Err in Finding  that  Seth
Failed To           Remedy His Conduct.
          Seth  argues  that  there was no clear  and  convincing
evidence that he failed to remedy his substance abuse.  He claims
the   superior   court   should  take  into   consideration   the
difficulties facing the parent when determining a reasonable time
to  remedy addiction.  He asserts the superior court should  have
taken  his comprehension difficulties into consideration,  giving
him  more time to remedy his addiction.  He examines the  factors
under AS 47.10.088(b)44 and concludes he should have been granted
more time.
          In  finding  that Seth had not remedied his conduct  in
relation to his use of intoxicants, the superior court relied  on
evidence  that  Seth had not successfully completed  a  treatment
program, had not refrained from using illegal substances, and had
not  refrained  from engaging in criminal activity  resulting  in
arrest.   Although  the  court  noted  that  Seth  had  presented
evidence  of  his completion of treatment, it did  not  find  the
evidence persuasive because Seth refused to allow OCS to  provide
collateral  information, and he continued to obtain  prescription
medications.
          The  superior  court  also  found  that  Seth  had  not
remedied his conduct and that placing Lacey with him would  place
her  at substantial risk of physical or mental injury.  The court
based this finding on the fact that Seth had not completed any of
          the recommendations from his various treatment programs, and the
fact that if Seth were to successfully begin a treatment program,
including  substance abuse and psychological  examination,  there
would  be  a  considerable amount of time before OCS  could  even
start a trial home visit to reunite Lacey with Seth.
          There was sufficient trial evidence to permit the court
to  find by clear and convincing evidence that Seth had failed to
remedy  his conduct related to his substance abuse.  The superior
court  did  not  err  in deciding that it was  not  in  the  best
interest  of  the  child to give Seth more  time  to  remedy  his
conduct.
     F.   The   Superior  Court  Did  Not  Err  in  Finding  that
          Terminating  Seths Parental Rights Was in  Laceys  Best
          Interest.
          
          Alaska Statute 47.10.088(c) requires the superior court
to consider the best interests of the child when deciding whether
to terminate a parents parental rights.
          Seth argues that terminating his parental rights is not
in Laceys best interest because he is devoted to her and there is
evidence  he  and Lacey had a strong bond.45  In  light  of  this
strong bond he argues it would not be in Laceys best interest  to
place her in another foster home.
          The state argues that there was sufficient evidence  to
support  the  superior courts finding that it was in Laceys  best
interest to terminate Seths parental rights.  The state points to
evidence presented at trial that Lacey has been involved with OCS
for  most  of  her  life, including over twenty-four  consecutive
months  in  foster care, and needs permanency.   The  state  also
argues that Seth would not be in a place to care for Lacey in the
foreseeable  future due to his need to complete  substance  abuse
treatment   and  the  fact  that  he  was  still  on   electronic
monitoring.
          The  brief of the GAL also argues that it is in  Laceys
best  interest  to  terminate Seths  parental  rights.   The  GAL
presented evidence in support of its conclusion that was  largely
similar to the states arguments.  The GAL additionally points out
that  because  of  his legal problems Seth was not  present  when
Lacey was an infant, leading her to spend her tender years in the
homes of different adults, and that Seths behavior over the three
years  leading  up  to  the  termination  trial  demonstrated  an
unwillingness  to change to reunify with Lacey.  The  GAL  admits
that  Seth is at times a loving and devoted father, but  that  on
the whole he is unable to break away from his drug use.
          Although  Seth may be a devoted father and may  believe
he  has  a  bond with Lacey, ample evidence supports the superior
courts best-interest determination.  The superior court therefore
did not err in finding that terminating Seths parental rights was
in Laceys best interest.
IV.  CONCLUSION
          We therefore AFFIRM the termination decision.
FABE,   Chief  Justice,  with  whom  CARPENETI,  Justice,  joins,
concurring.
          I  agree  that because Seth D. eventually testified  in
person  at  trial,  his due process claim  must  fail.   I  write
separately  to  express my view that the cost of  transportation,
standing  alone,  should not suffice as  grounds  for  denying  a
prisoner  the right to testify in person at trial on  termination
of  parental  rights.  Our case law makes clear  that  the  trial
court  erred  in  ruling  that  Seths  telephonic  testimony  was
adequate for a fair trial.  Only the fortuity of Seth D.s release
from  prison  before the conclusion of his hearing  rendered  the
superior courts decision to deny transport harmless error.
          The   constitutional  protections  afforded   in-person
testimony   reflect   subtle   but  important   shortcomings   of
telecommunications  technology.  We  have  recognized  that   the
potential  for empathy and nuanced understanding is much  greater
in  person-to-person communications than in any  of  the  various
forms  of  telecommunicating.1  Consequently,  when  a  party  is
denied  an in-person hearing before a trier of fact, there  is  a
risk  that the party will be less able to convey the message that
his  story  is the truth.2   In other words, appearing in  person
supplies an essential component of the right to testify.
          The  cost  of  transporting a prisoner from  Seward  to
Kenai certainly falls well short of justifying a decision to deny
a prisoner the right to testify in person in a termination trial.
Indeed,  we  have never held that the mere cost of transportation
should  suffice  as  grounds for denying  a  prisoners  right  to
testify  in  person where a fundamental right is  at  stake.   In
Richard B., the trial court denied the request for transport  not
only  because it would have involved significant expense but also
because flying Richard from Anchorage to Bethel would potentially
lead  to  illegal  overcrowding and would create  ripple  effects
throughout  the  system  and  require  significant  planning  and
coordination.3  Similarly, in Whitesides our decision  turned  on
our  determination that public safety, [t]he foremost  government
interest involved in drivers license revocation proceedings, .  .
.  will  not  be prejudiced by providing a person  who  is  under
threat of license revocation with an in-person hearing.4 We  held
in  favor of in-person hearings despite our recognition  that  in
some  circumstances,  travel costs and travel  time  for  hearing
officers  will  be  greater  for  in-person  hearings  than   for
telephone hearings.5
          As   the   court   today  has  noted,   Whitesides   is
distinguishable in that we did not require the state to transport
a  prisoner, but rather provided that a person must be allowed to
appear in person before the hearing officer.  On the other  hand,
Whitesides did not involve the fundamental right to the care  and
custody  of  ones own child.  The interest at stake in  potential
termination of that right may not always lead to a decision  that
a   prisoners  personal  appearance  is  essential  to  the  just
disposition of the action.6  But it should in many cases.   Where
security  risks or other extraordinary circumstances are  absent,
the  due  process  clause dictates that a just disposition  in  a
parental  rights termination trial includes permitting  requested
          in-person testimony.
_______________________________
     1     We  have  used pseudonyms throughout this  opinion  to
protect the privacy of family members.

     2     Lacey is not an Indian child within the meaning of the
Indian Child Welfare Act of 1978, 25 U.S.C.  1901 et seq.

     3     It  is  somewhat unclear exactly when Seth and Tiffany
were  in  contact during Laceys life.  It is clear  that  he  was
staying with Tiffany at this time.

     4     AS  33.30.081  governs the transport of  prisoners  to
trials in which they are parties.

     5      The   superior  court  did  not  directly   cite   AS
47.10.011(8) in its Findings, Conclusions, and Order  Terminating
Parental  Rights and Responsibilities.  Nonetheless, the superior
court  made  findings  and a conclusion that  appear  to  satisfy
subsection .011(8).

     6    Although Tiffanys parental rights were also terminated,
she has not appealed.

     7    Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 817 (Alaska 2003).

     8     Id.  (citing Whitesides v. State, Dept of Pub. Safety,
Div. of Motor Vehicles, 20 P.3d 1130, 1134 (Alaska 2001)).

     9     Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003).

     10    Id.

     11    Id.

     12    Id.

     13    Under AS 33.30.081(f):

          A  court may order a prisoner who is a  party
          or  a  witness to a civil action  .  .  .  to
          appear  at  a  place  other  than  within   a
          correctional  facility  only  if  the   court
          determines,  after  providing  a   reasonable
          opportunity for the commissioner to  comment,
          that  the  prisoners personal  appearance  is
          essential  to  the  just disposition  of  the
          action.   In  making  its determination,  the
          court  shall  consider available alternatives
          to    the   prisoners   personal   appearance
          including deposition and telephone testimony.
          
          The   trial   court  has  significant   discretion   in
determining whether to grant an incarcerated parents  request  to
be  transported to a termination trial.  Richard B., 71  P.3d  at
827.

     14     Although  the court agrees with many of the  comments
contained  in  the  concurring opinion,  the  fortuity  of  Seths
release  in time for him to testify in person at trial  makes  it
unnecessary   here   to  explore  what  due   process   and   the
transportation statute minimally require when prisoners  seek  to
testify  at  the  trial on state petitions  to  terminate   their
parental rights.

     15    Richard B., 71 P.3d at 828.

     16    Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 829-30 (Alaska 2003).

     17    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles,  20  P.3d 1130, 1139 (Alaska 2001) (holding  that  when
credibility  of party is in issue at license revocation  hearing,
an in-person hearing is required).

     18    Richard B., 71 P.3d at 829-30 (emphasis in original).

     19    Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), cited
in Richard B., 71 P.3d at 831.

     20     Richard B., 71 P.3d at 829 (quoting Mathews, 424 U.S.
at 335).

     21    J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001).

     22    Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).

     23    Richard B., 71 P.3d at 831.

     24     Seth  also  relies on the testimony of witnesses  who
testified  that he may need someone to explain words  to  him  to
help  reading  comprehension; that he has trouble  responding  to
written  questions;  that  he has to have  someone  read  written
questions  to him; that he had previously asked a case worker  to
read  his  plan to him because he feared he would  be  unable  to
understand  it  himself;  and  that Seths  vocabulary  deficiency
affects  both  reading and verbal comprehension.  This  evidence,
and  this  theory  for  attendance, were  not  presented  to  the
superior  court  when Seth last requested, on the  first  day  of
trial, that the court order him transported for trial.

     25     The  state notes that at the pretrial discussion  the
guardian  ad litem (GAL) pointed out that Seth had a  low  verbal
score  but  that there was a discrepancy with the score.   Citing
the  previous  IQ report, the GAL told the superior  court   that
there  was  hope  that  that  would advance  and  that  he  could
compensate by verbal learning.

     26    E.J.S. v. State, Dept of Health & Soc. Servs., 754 P.2d
749, 752 (Alaska 1988) (holding that fathers right to due process
was  not  violated by his telephonic participation in termination
hearing).

     27     The  superior  court  gave  Seth  an  opportunity  to
interrupt at trial if he had comprehension difficulty.  See  Part
III.C.   The court even stopped the trial at one point when  Seth
said that he was having trouble hearing the proceedings.

     28    Richard B., 71 P.3d at 833.

     29     As  noted above, Seth attended the last two  days  of
trial  and  testified in person.  This is not a case in  which  a
parent was denied an opportunity to testify in person.

     30     We  express no opinion whether this would  have  been
sufficient  to  satisfy either due process or the  transportation
statute  had  Seth not ultimately been able to attend  the  trial
personally and testify live.

     31    AS 33.30.081.

     32     We  focus our discussion here on a parents  right  to
testify  at  trial, not on the right to be present,  because  the
right to testify involves a higher degree of participation in the
trial  process and therefore imposes a greater limitation on  the
superior courts discretion.  As discussed earlier, it is hard  to
imagine how being present at trial, but not testifying, would  be
any  different  than telephonic participation conducted  properly
per  our  previous decisions.  No party argues here  that  modern
video conferencing would not have been an adequate alternative to
personal attendance.

     33    Richard B., 71 P.3d at 811.

     34    Id. at 828.

     35    Id. at 816.

     36    Id. at 828.

     37    Id.

     38    Id.

     39    Id. at 816.

     40    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of  Family  &  Youth  Servs., 79 P.3d 50, 54 n.14  (Alaska  2003)
(stating [b]ecause we affirm the trial courts holding that Amanda
was  a  child in need of aid on the bases of AS 47.10.011(6)  and
(8), it is not necessary to reach the third issue of whether  she
was also a child in need of aid on the basis of AS 47.10.011(2));
see also Rick P. v. State, OCS, 109 P.3d 950, 956 (Alaska 2005).

     41    AS 47.10.011(10).

     42     Stanley  B. v. State, DFYS, 93 P.3d 403, 407  (Alaska
2004).

     43    Id. at 407.

     44    AS 47.10.088(b) states that in determining whether the
parent has remedied the conduct that put the child at substantial
risk of harm, the court may consider:

          (1)  the likelihood of returning the child to
          the parent within a reasonable time based  on
          the childs age or needs;
          (2)   the  amount of effort by the parent  to
          remedy  the conduct or the conditions in  the
          home;
          (3)  the harm caused to the child;
          (4)   the likelihood that the harmful conduct
          will continue; and
          (5)   the history of conduct by or conditions
          created by the parent.
          
     45     Because Seths challenge to the superior courts  best-
interest-of-the-child determination goes to the facts  underlying
the  determination, we review the determination for clear  error.
See  Jeff  A.C.,  Jr. v. State, 117 P.3d 697, 707 (Alaska  2005);
Stanley B., 93 P.3d at 408.

1     Whitesides  v. State, Dept of Pub. Safety,  Div.  of  Motor
Vehicles, 20 P.3d 1130, 1137 (Alaska 2001).

     2    Id.

     3    Richard B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 71 P.3d 811, 827 (Alaska 2003).

     4    20 P.3d at 1138.

     5    Id.

     6    AS 33.30.081.

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