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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Remy M. v. State, Dept. of Health & Social Services, Office of Children's Services (8/14/2015) sp-7032

Remy M. v. State, Dept. of Health & Social Services, Office of Children's Services (8/14/2015) sp-7032

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                  THE SUPREME COURT OF THE STATE OF ALASKA  



REMY M.,                                            )  

                                                    )        Supreme Court No. S-15719  

                          Appellant,                )  

                                                    )        Superior Court No. 4BE-12-00033 CN  

         v.                                         )  

                                                    )       O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF HEALTH AND                            )       No. 7032 - August 14, 2015  

SOCIAL SERVICES, OFFICE OF                          )  

CHILDREN'S SERVICES,                                )  

                                                    )  

                          Appellee.                 )  

                                                    )  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth Judicial District, Bethel, Beverly Cutler, Judge pro  

                 tem.  



                 Appearances:  Rachel Cella, Assistant Public Defender, and  

                                                                     

                 Quinlan Steiner, Public Defender, Anchorage, for Appellant.  

                                                 

                 Ruth Botstein, Assistant Attorney General, Anchorage, Janell  

                 Hafner, Assistant Attorney General, and Craig W. Richards,  

                 Attorney General, Juneau, for Appellee.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                     

                 Bolger, Justices.  



                 PER CURIAM.  


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

I.         INTRODUCTION  



                                                 1  

                      A father appeals  the termination of his parental rights to his daughter.  He  



claims the trial court violated his due process rights when it allowed the termination trial  

                                                                                                  



to conclude in his absence without first asking him directly if he wished to testify.                                                   The  



father  alternatively  requests  a  remand  so  he  can  develop  a  record  to  support  an  

                                                                                                       

ineffective assistance of counsel claim.  We affirm the trial court's decision.2  



II.        FACTS AND PROCEEDINGS  



           A.         Family History  



                                        3 

                      Kendra G.,  born in 2012, is an Indian child as defined by the Indian Child 

                                                                                                                           

                                    4   Her father is Remy M. and her mother was Vera G.  Both parents  

Welfare Act (ICWA).                                                                                          



have a history of alcohol abuse, and Remy has a history of domestic violence.  The  



                                                                                       

Office of Children's Services (OCS) initially became involved in this case after receiving  



reports alleging that Vera was abusing and neglecting her children.  



                      Although Remy has been able to maintain sobriety in a highly controlled  



                                                                          

environment, such as a correctional facility, he has repeatedly relapsed, including a few  



                                                                                                                        

months before the termination trial.  At the time of trial, Remy had not completed the  



                                                                                                             

recommended long-term substance abuse treatment or addressed the behavioral health  



issues that cause him to relapse.  



           1          Both parents appealed, but the mother's appeal was dismissed after her  



death.  



           2          We heard this case in June 2015 and issued an order affirming the trial   



court's decision at that time, indicating that a written opinion would follow.  



           3          We use pseudonyms to protect the family's privacy.  



           4          25  U.S.C.    1903(4)  (2012).    Kendra's  mother's  tribe  has  intervened  



pursuant  to  25  U.S.C.    1911(c)  (2012),  which  permits  an  Indian  child's  tribe  to  

                                                                                     

intervene in state court Child in Need of Aid (CINA) proceedings.  



                                                                     -2-                                                               7032
  


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

                                                                                     

                     OCS petitioned to terminate Vera's and Remy's parental rights to Kendra.  



                                                                                                                 

A termination trial took place over four days in Bethel before Senior Superior Court  

Judge Beverly Cutler in July 2014.5  OCS presented numerous exhibits and the testimony  



                                                                                                                        

of  16  witnesses to  support its claim that termination of Remy's parental rights  was  



necessary because of Remy's substance abuse, domestic violence, criminal behavior  



leading to incarceration, and parenting deficiencies.  



                                                                                                                       6  

                                                                                                                           and   the  

                     OCS   also   presented   evidence   of   Kendra's   special   needs 



developmental  progress  she  had  made  since  being  removed  from  her  parents'  care.  



                                                         

Kendra was moved five or six times during the two years of OCS custody before settling  



in with her potential adoptive foster family in Akiak.  



           B.        Remy Left During The Termination Trial.  



                     Remy attended most of the trial.  On the third day of trial, a Wednesday,  



                                                                                                         

Remy's attorney asked the court if Remy could be absent from trial on the following day,  



                                                                                                

Thursday, to attend an integrated mental health and substance abuse assessment.  Remy's  



counsel  clarified  that  Remy  was  not  requesting  a  continuance,  and  the  trial  court  



                                                                                         

responded that Remy did not have to be present because the case was civil, not criminal.  



                                                                             

At  the  end  of  Wednesday's  trial  day,  counsel  and  the  court  discussed  the  order  of  



                                                                

testimony for the next day.  Counsel for OCS told the court that its last witness was not  



available until 11:30 a.m. Thursday.  The trial court asked if the parents were "willing  



                                                                                                                       

to indicate whether they believe they have any non-party witnesses they're going to be  



                                                    

calling."  Remy's counsel said, "I don't have any," and Vera's counsel said, "just my  



client."  In an effort to avoid wasting the morning hours before the last OCS witness  



           5         Judge Cutler served under a pro tem appointment pursuant to article IV,  



section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).  



           6         OCS presented testimony that Kendra has problems with her hips and other     



joints and that she is delayed in language, muscle development, and gross motor skills.     



                                                                  -3-                                                           7032
  


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

scheduled for 11:30 a.m., the trial court suggested that Thursday morning might be a  



good time for the parents to testify, if they intended to do so.  The court explained:  



                     Well, I would suggest that if the parents are willing to resume  

                                 

                     at 8:30 [a.m.] or even 9:00 tomorrow, even in the absence of  

                                                                                                    

                     the state's last witness, based on the fact that I'm sure they've  

                                                                                    

                     already received some discovery about what the state's last  

                     witness  is  going  to  say  anyway,  if  they're  willing  to  start  

                                   

                     being witnesses themselves, or if they want to be witnesses,  

                     we could use the time that way instead of having a whole  

                     three hours go unused from 8:30 to 11:30.  



                               But again, I realize that it's not exactly like a criminal  

                                                                                 

                     case where the defendant has to decide whether to take the  

                                                                          

                     stand, but I know that could put pressure on them that they  

                                                                                                      

                     feel is not warranted unless the state has actually rested.  



                     Trial was scheduled to resume at 9:00 a.m. but Remy was not present.  His  

                                                                                                                



attorney explained to the trial court the possibility that she (the attorney) "could have  



scared [Remy] about testifying" when she "tried to . . . give him some tips and give him  

                                                                                 



some examples of the kind of questions he would get."  The trial court told the parents'  

                                                                                        



counsel that if their clients wished to testify, they would need to do so that day, but the  

                                                                                                                              



court assured the attorneys that it would not hold it against either parent if the parent  

                                                                                                                     



chose not to testify.  The trial court affirmed that OCS "still has the same burden."  



                     Both parents eventually arrived for trial, and once they both entered the  



courtroom, Vera took the witness stand.  But Vera's testimony was interrupted so that  



OCS could present its final scheduled witness at 11:30 a.m.  After OCS rested its case,  

                                                                                        



Remy left the proceedings to attend the mental health and substance abuse assessment.  

                                                                



In Remy's absence, his attorney told the trial court that Remy might be gone up to three  

                                                                                                           



hours  but  that  she  did  not  intend  to  call  him  as  a  witness.    Remy's  attorney  again  



attempted to explain to the court that Remy was not testifying because he was anxious,         



                                                                  -4-                                                           7032
  


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

but  the  court  interrupted  and  said  it  would  not  accept  counsel's  representations  of  



Remy's feelings.  



                                                                                                   

                    Vera completed her testimony in Remy's absence.  The trial court offered  



Remy's counsel an opportunity to find and consult with her client again about testifying  



                                                                                                     

or about closing argument strategy. Remy's counsel reiterated that Remy "[did not] want  



to testify" because "[h]e had a lot of anxiety about it." Again, the trial court cautioned  



that it would not consider a hearsay report of Remy's motivations.  



                                                                                                                      

                    At the close of trial, the court provided the parties with an hour and a half  



                                                             

to prepare for closing arguments and to consult.  The court said to Remy's counsel, "[I]f  



                                               

you wish to consult with your client . . . if he wants to come back for final argument, if  



                                                                       

you just want to consult with him about what - how he wants his case presented, you  



                                                                                                                

have an hour and a half to locate him."  Remy's attorney responded, "I talked to him  



                                                                                          

about that before. . . . I said if we get that far, what do you want to do, and he told me."  



                                                                   

                    The trial court then proceeded to make oral findings, "beyond a reasonable  



                                

doubt," that Kendra was in need of aid, and that even though Remy wanted to be a good  



                                                                      

father, he had been unable to follow through with any changes in his life to become an  



                                                                                              

adequate parent for her in the near future.  The court found it "hugely problematic" that  



Remy  had  not  attained  long-term  sobriety  and  had  no  resources  to  provide  for  his  



daughter.  The  court  addressed  Kendra's  best  interests  and  found,  through  expert  



                                                                                        

testimony and beyond a reasonable doubt, that returning Kendra to either parent would  



                                                                                                              

likely cause her serious emotional or physical damage.  The trial court also noted that  



both parents had "extraordinarily able and devoted lawyers."  



                                                                                                                  

                    Two  months  passed  before  the  trial  court  issued  written  findings,  in  



                                                                                               

September  2014,  again  finding  that  Kendra  was  a  child  in  need  of  aid  pursuant  to  



                                                                -5-                                                         7032
  


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

                                                 7                    8                                         9 

AS 47.10.011(6) (physical harm),  (9) (neglect),  and (10) (substance abuse).   The trial  



                                                                    

court made detailed findings on all required statutory factors before terminating both  



parents' rights to Kendra.  



                                                                               

                    Remy does not appeal the substance of the trial court's decision.  Instead  



                                                        

he argues that the trial court violated his right to due process because it failed to advise  



him that he had a right to testify and because it permitted his attorney to waive that right  



                                                                                 

in  his  absence.    Remy  argues  in  the  alternative  that  even  if  he  was  not  denied  due  



                                                                                                   

process, "this court should remand the case for development of the record in support of  



an ineffective assistance of counsel claim."  



III.      STANDARD OF REVIEW  



                                                                                                                     

                    The parties dispute whether Remy's failure to raise the argument he now  



                                                                                                                    

raises on appeal constitutes a waiver of that issue.  Because Remy did not raise the issue  



                                                                     10  

to the trial court, we review it for plain error.                        "[P]lain error exists in a CINA case  



          7         AS 47.10.011(6) allows the trial court to find a child in need of aid if it  



finds that "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  child's parent, guardian, or custodian, or by the failure of the parent,  

                       

guardian, or custodian to supervise the child adequately."  



          8         AS 47.10.011(9) allows the trial court to find a child in need of aid if it  



finds that "conduct by or conditions created by the parent . . . have subjected the child  

or another child in the same household to neglect."  



          9  

                                                                

                    AS 47.10.011(10) allows the trial court to find a child in need of aid if it  

finds that the parent's "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."  



          10       Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  



309 P.3d 1262, 1267 (Alaska 2013).  



                                                             -6-                                                        7032
  


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

where an obvious mistake has been made which creates a high likelihood that injustice                                  

has resulted."11  



IV.        DISCUSSION  



                      Remy argues that his right to testify could not be waived by his attorney.  

                                                                  

                                             12 Remy asks us to initiate a new rule prohibiting a trial court  

Relying on LaVigne v. State ,                                                                                             



from concluding a termination trial without first notifying the parents that they have a  



right to testify at trial and precluding the parents' counsel from expressing the client's  



                                                     

waiver  of  that  personal  right.                   For  the  reasons  discussed  below,  we  conclude  that  



LaVigne is inapposite, and we decline to adopt Remy's proposed rule.  



                                                                                          

                      In LaVigne a defendant in a criminal case told his attorney that he wanted  



                                                            

to testify on his own behalf.  But his attorney unilaterally decided that LaVigne should  



                                                                                                                

not testify, without informing LaVigne that he had a right to insist on testifying in spite  



                                       13  

                                           There was no dispute that "LaVigne's attorney unlawfully  

of his counsel's advice.                                                        



                                                                               14  

usurped LaVigne's decision whether to testify."                                    We concluded that because "[t]he  

                                                                   



constitutional right to testify is both personal to the criminal defendant and fundamental  



                                                                                                                          

to the dignity and fairness of the judicial process," the ultimate decision whether to  

exercise the right to testify belongs to the defendant and not the defendant's counsel.                                                  15  



           11        Id. (internal quotation marks and citation omitted).  



           12         812 P.2d 217 (Alaska 1991).  



           13        Id. at 218.  



           14        Id. at 220.  



           15        Id. at 219 (citations omitted).  



                                                                   -7-                                                             7032
  


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

Thus we remanded the trial court decision for an evidentiary hearing and determination  



                                                                                       16  

whether the error was harmless beyond a reasonable doubt.                                   



                    We also pointed out that trial courts could avoid similar problems in the  



                                                                                                                   

future if they "[took] steps to insure that a criminal defendant's failure to take the stand  



                                                   

in his or her own defense was the result of a knowing and voluntary decision made by  

                       17  We thus directed trial courts to "make an on-the-record inquiry after  

the defendant."     



the close of the defendant's case, although out of the jury's hearing, into whether a  



                                                                                                       18  

                                                                                                           We explained  

nontestifying defendant understands and voluntarily waives his right." 



                                                            

that the express purposes of this process are to ensure "a valid waiver of the defendant's  



                     

right" and to "assist in any subsequent appellate review of a defendant's claim to the  

contrary."19  



                                               

                    Remy argues that he has a due process right to a LaVigne warning.  But our  



direction in LaVigne that the trial court "make an on-the-record inquiry after the close  



                                                                                                                             20  

                                                                                                          

of the defendant's case" should not be conflated with a substantive due process right. 



                                                           

We do not need to reach the question whether parents in parental rights termination  



proceedings  have  the  same  rights  as  criminal  defendants  to  make  the  final  decision  



                                                                                      

whether to testify because Remy has not even made the threshold allegation that he  

wished to testify and that his attorney "unlawfully usurped [his] decision."21  



          16       Id. at 220-21.
  



          17       Id. at 222.
  



          18       Id.
  



          19       Id.
  



          20       Id.
  



          21       Id. at 220.  



                                                             -8-                                                        7032
  


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

                                                                                     

                    There is nothing in the record - not in the courtroom, not in pleadings, not  



                                    

during oral argument, and not even in this appeal - to indicate that Remy wanted to  



                                                                     

testify.  In fact, it appears from his attorney's repeated statements to the trial court on the  



                             

record that Remy made the decision not to testify, despite ample opportunity to do so.  



                                                           

On three occasions, Remy's attorney informed the trial court that Remy did not wish  



                                                                              

testify, repeatedly attempting to explain that Remy was anxious after hearing "examples  



                                                              

of the kind of questions he would get."  And Remy chose to leave the courtroom in the  



middle of trial, knowing that the trial might end before he returned.  



                                                                                         

                    If Remy wanted to testify, he had ample time to express his wishes after the  



presentation of evidence concluded, including the extra time the trial court provided  



before closing argument and the two months between the end of trial and the trial court's  



                               

issuance of written findings.  And even after the final termination order, Remy never  



                                                            

filed anything to alert the trial court of his wish to testify.  Therefore, even if Remy had  



                                                                                                                  

the same right as a criminal defendant to make the final decision whether to testify, he  

has not established any violation of that right.22  



          22        Moreover, requiring the trial court to make on-the-record inquiries into the                          



right  to  testify  in  the  context  of  parental  rights  termination  proceedings  would  be  

extremely difficult to administer.  Termination trials often occur without a parent because  

the parents are incarcerated or are otherwise unavailable, see, e.g., Seth D. v. State, Dep't  

                                           

of  Health  &  Soc.  Servs.,  Office  of  Children's  Servs., 175  P.3d  1222  (Alaska  2008)  

                                                                                     

(upholding trial court's decision denying father's request to be transported to attend trial  

when father testified telephonically and was physically present for some of the trial);  

                                                                                       

Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 71  

P.3d 811, 828 (Alaska 2003) (concluding that, when father was permitted to testify by  

                                              

telephone,  procedural  due  process  did  not  require  that  he  be  transported  to  the  

termination  trial);  Mary  E.  v.  State ,  Mem.  Op.  &  J.  No.  1151,  2003  WL  22994469  

                                                          

(Alaska Dec. 17, 2003) (upholding trial court's denial of mother's request for a short  

continuance of termination trial when mother could not attend the rest of trial personally,  

                                                 

for medical reasons), because the parents have failed to appear for trial, see Marcia V.  

                                                                         

                                                                                                                (continued...)  



                                                                -9-                                                         7032
  


----------------------- Page 10-----------------------

                                                                                                    

                   Remy also requests a remand for an evidentiary hearing to develop a factual  



                                                                                                           

record, suggesting that his attorney's conduct "may entitle [him] to relief based upon an  



                                                                                                            

ineffective  assistance  of  counsel  claim."    Remy  asserts  that  a  remand  is  necessary  



                                                                                                                        

because "it is not possible to determine what evidence [he] would have presented if his  



attorney had not waived his presence" or "whether [his] attorney acted reasonably under  



                                                                                                       

the circumstances."  Although Remy argues that he "was not there  to insist that his  



lawyer was acting against his wishes," he offers nothing to support a claim that she was  



in fact acting against his wishes.  We thus conclude that Remy has not met even the  



                                                                                                   

threshold requirement for us to evaluate the claim at an appellate level, much less to  



require a remand.  



                   When we review an ineffectiveness claim after a parental rights termination  



trial, we apply a two-pronged test.  The test requires the litigant to show first that his  



                                                                         

attorney's performance was below a level that any reasonably competent attorney would  



provide  and  second  that  counsel's  improved  performance  would  have  affected  the  



                              23  

                                  Remy alternatively argues that if we review his claim on direct  

outcome of the case. 



                                                                                                                

appeal, we should conclude that his counsel provided ineffective assistance of counsel  



          22(...continued)  



v. State, Office of Children's Servs., 201 P.3d 496, 501 (Alaska 2009) (mother received  

                                                      

notice of the trial but did not attend), or because they chose to leave at some point during  

                                                                                      

the trial, see, e.g., Jordan J. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                               

Servs., Mem. Op. & J. No. 1538, 2015 WL 1985060, *7 (Alaska Apr. 29, 2015) (mother  

exited the courtroom mid-trial without clarifying whether she wished to relinquish her  

parental rights, leaving her attorney confused about which direction to take); William S.  

v.  State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J.  

No.  1474,  2014  WL  199882,  *11  (Alaska  Jan.  15,  2014)  (father  left  the  courtroom  

without warning).  



          23  

                                            

                   See Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's  

Servs., 309 P.3d 850, 858-59 (Alaska 2013).  



                                                            -10-                                                       7032
  


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

                                                   

when she failed to advise him to stay and testify.  Again, Remy points to no specific  



                                                                                                          

conduct of concern and simply asks us to speculate that he might have a claim that his  



                                                                                                   

attorney was ineffective.  In sum, Remy makes no credible attempt to establish even the  



                                                      

first prong of the test for ineffective assistance of counsel.  Thus, there is no basis upon  



which to analyze an ineffective assistance of counsel claim.  



V.        CONCLUSION  



                                                        

                    For the reasons set forth above, we AFFIRM the decision of the trial court.  



                                                             -11-                                                       7032
  

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