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.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jensen D. v. State, Dept. of Health & Social Services, Office of Children's Services (7/27/2018) sp-7265

Jensen D. v. State, Dept. of Health & Social Services, Office of Children's Services (7/27/2018) sp-7265

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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, email  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

JENSEN  D.,                                                       )  

                                                                  )    Supreme Court No. S-16774  


                                 Appellant,                       )  

                                                                  )    Superior  Court  No.  4FA-16-00020  CN  

           v.                                                     )  


                                                                  )    O P I N I O N  


STATE OF ALASKA,                                                  )  



DEPARTMENT OF HEALTH &                                            )    No. 7265 - July 27, 2018  


SOCIAL SERVICES, OFFICE OF                                        )  


CHILDREN'S SERVICES,                                              )  


                                 Appellee.                        )  




                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.  


                      Appearances:  August J. Petropulos, Juneau, for Appellant.  


                      Aisha Tinker Bray, Assistant Attorney General, Anchorage,  


                      and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  


                      Appellee.           Carol  L.  Jacoby,  Assistant  Public  Advocate,  


                      Fairbanks,  and  Chad  Holt,  Public  Advocate,  Anchorage,  


                      Guardian Ad Litem.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  

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


                    A mother appeals the superior court's decision to terminate her parental  


rights to her seven-year-old daughter.  The mother moved to represent herself in the  


middle of trial; on appeal she contends that the superior court abused its discretion when  


it denied her request on grounds that she lacked knowledge of the legal process, was  


unable  to  regulate  her  behavior  in  the  courtroom,  and  could  not  view  the  case  



                    We conclude that the record supports the court's decision that the mother  


was unable to act with the courtroom decorum necessary for self-representation. On that  


ground we affirm the denial of the mother's request.  




          A.        Facts  

                    Jensen D. is the mother of Emery, a seven-year-old girl who has been in the  


custody of the Office of Children's Services (OCS) since 2016.1  

                                                                                             OCS's efforts to reunite  


the two focused on Jensen's problems with substance abuse and mental health.   In  


November 2016 OCS filed a petition to terminate Jensen's parental rights, asserting that  


none of its efforts had been successful because of Jensen's "unpredictable and dangerous  


behaviors, her significant mental health issues, and her continued abuse of substances."  


          B.        Proceedings  

                    Jensen was represented by appointed counsel. In April 2016 the court held  


a representation hearing to consider Jensen's request for a different attorney.  Jensen  


asserted that she was having "a difficult time communicating with" her attorney and that  


he had failed to "follow through with what he says he's going to do [about] somehow  


convincing OCS to start my classes, somehow convincing them to pay for my therapist."  


          1         Pseudonyms  have  been  used  to  protect  the  privacy  of  the  parties.  

                                                             -2-                                                           7265  

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


The court asked Jensen when she had last used methamphetamine, observing that she  


seemed to be exhibiting its effects; she replied, "Honestly, it's been about a week."  The  


court  went  on  to  conclude  that  the  attorney's  work  on  her  behalf  appeared  to  be  


"exemplary" and that there was no basis for removing him.  Jensen made no request to  


represent herself at this hearing.  


                     In June 2017 the court held a four-day termination trial.  During the first  


day of trial the court again suspected that Jensen was under the influence of drugs or  


alcohol, apparently because of the lack of focus in Jensen's testimony; less than an hour  


into the proceedings the court took an early recess to allow Jensen and her attorney to  


consult about whether she was actually "in a condition to be testifying today."  The trial  


proceeded on Jensen's assurance to the court that she was able to testify.  The following  


day,  however,  the  court  advised  Jensen  that  her  talking  at  the  counsel  table  was  


interfering with other witnesses' testimony; the court suggested that she sit in the back  


of the courtroom and consult with her attorney only during breaks in order to minimize  


disruptions.          Even  so,  the  court  had  to  remind  her  again  not  to  interrupt  others'  




                    At the start of the trial's third day, Jensen asked that she be allowed to  


represent herself. She contended that she was not being "properly defended" because her  


attorney  was  not  calling  the  witnesses  she  wanted  him to  call  or  asking  "the  right  


questions." The court denied her request.  It observed that Jensen did not "have the legal  


skills,"  lacked  the  "ability  to  regulate  [her]  behavior  in  the  courtroom,"  and  would  


probably "make a worse record for [her]self" if allowed to question witnesses. The court  


did,  however,  tell  Jensen  that  she  could  read  another  statement  at  the  end  of  the  


proceedings if she wanted to (she had read a lengthy one, describing her parenting efforts,  


at the close of the first trial day).   The court also informed her that it could hold "a  

                                                                -3-                                                          7265

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

 separate hearing" at the close of trial "about whether there are, in fact, witnesses that                                                                                                                                                                                                                                                                              

would be helpful to [her] that [her attorney] chose not to call."                                                                                                                                                                                                               

                                                          At the end of trial, after consulting with her attorney, Jensen declined the                                                                                                                                                                                                                                     

opportunity to give another statement - other than her lawyer's written closing - or to                                                                                                                                                                                                                                                                                         

put on more witnesses.                                                                                      The court issued a detailed decision in August terminating                                                                                                                                                               

Jensen's parental rights.                                                                                      It found that Emery was a child in need of aid pursuant to                                                                                                                                                                                                      

AS 47.10.011(1) (abandonment), (6) (risk of substantial physical harm), (8) (mental                                                                                                                                                                                                                                                                   

injury), (9) (neglect), (10) (parental substance abuse), and (11) (parental mental health).                                                                                                                                                                                                                                                                                                

It found that Jensen had failed to remedy the conduct or conditions that made Emery a                                                                                                                                                                                                                                                                                               

child in need of aid despite OCS's reasonable efforts.                                                                                                                                                                                               Finally, the court found that                                                                                     

terminating Jensen's parental rights was in Emery's best interests and that continued                                                                                                                                                                                                                                   

placement of the child with her great-aunt was appropriate.                                                                                                                                                                                                       

                                                          Jensen appeals only the denial of her request to represent herself during the                                                                                                                                                                                                                                     

termination trial.                                                         

III.                         STANDARD OF REVIEW                                                              

                                                          "[W]e review decisions limiting or denying self-representation for abuse of                                                                                                                                                                                                                                           

                                                  2   Under the abuse of discretion standard, we ask "whether the reasons for the  


exercise of discretion are clearly untenable or unreasonable."3                                                                                                                                                                                                                  "We have held on many  


occasions that the trial court must provide sufficient factual findings to enable appellate  




                             2                           BarryH.v.                                       State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                                                                                                                                           ,  

404 P.3d 1231, 1235 (Alaska 2017).                                                                                               

                             3                           Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State,  


469 P.2d 689, 695 (Alaska 1970)).  


                             4                           Petrilla v. Petrilla, 305 P.3d 302, 307 (Alaska 2013) (citing Richardson v.  



                                                                                                                                                                                     -4-                                                                                                                                                                         7265

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



           The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  Jensen's  


          Request To Represent Herself.  


                     Jensen argues that the superior court abused its discretion in not allowing  


her to represent herself because it failed to apply the governing test from McCracken v.  



State.   In McCracken we concluded that the right to self-representation on a petition for  


post-conviction relief -and in civil matters generally -comes fromArticle I, section 21  


of  the Alaska Constitution, which specifies that "[t]he enumeration of rights in this  



constitution shall not impair or deny others retained by the people."                                    We determined that  


"[a]t the time that the Alaska Constitution was enacted and became effective, the right of  


self-representation was so well established that it must be regarded as a right 'retained by  



the people.' "          We held, however, that this right is "not absolute"; its exercise depends  



on a three-factor test.            First, the court should "ascertain whether a [person] is capable of  

                                                                                              9  Second, the court should  


presenting his allegations in a rational and coherent manner." 

ensure that the person "understands precisely what he is giving up by declining the  


          4          (...continued)

Kohlin,   175  P.3d  43,  48  (Alaska  2008)).

          5          518  P.2d  85  (Alaska   1974).  

          6          Id.  at  91  (alteration  in  original)  (quoting  Alaska  Const.  Art.  I    21).  

          7          Id.  (footnotes  omitted).  

          8          Id.  at  91-92.  

          9          Id.  at  91.  

                                                                 -5-                                                          7265

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


assistance of counsel."                       Finally, the court "should determine that the [person] is willing                                    

to conduct himself with at least a modicum of courtroom decorum."                                                           11  

                        In Barry H. we held that the Child in Need of Aid (CINA) Rules incorporate  


                                                                                           12   We explained that although "[t]he  

the McCracken  standard into CINA proceedings.                                                                                                       


right to self-representation in CINA cases (or other civil matters) has no specific support  


in the constitutions of either Alaska or the United States,"13  "the CINA rules themselves  


provide that a court 'shall accept a valid waiver of the right to counsel by any party if the  


court determines that the party understands the benefits of counsel and knowingly waives  


                               14   CINA Rule 12(c) "effectively incorporates the McCracken standard  

those benefits.' "                                                                                                                              


into CINA proceedings."15  


                        In Barry H.  we applied the McCracken  factors to a father's request to  


represent himselfin a CINA termination proceeding.16  Barry hadappeared telephonically  


at earlier hearings in the case and repeatedly challenged the court's jurisdiction.17  He had  


acted  inappropriately  during  those  hearings,  including  arguing  to  the  point  that  the  


superior  court  threatened  to  disconnect  him  from  the  hearing,  and  had  broadcast  


            10          Id.

            11          Id.  at 92.



                        Barry H., 404 P.3d at 1235.



                        Id. at 1234.



                        Id. at 1234-35 (quoting CINA Rule 12(c)).  



                        Id. at 1235.  



                        Id. at 1233-35.  

            17          Id.  at 1232.   

                                                                            -6-                                                                     7265

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


confidential proceedings over the local VHF radio.                                                           Relying on the                 McCracken  factors,  

the superior court denied Barry's request to represent himself because it did not believe                                                                              

he was "capable of presenting his case in a manner that is rational and coherent and                                                                                          

consistent with the law that governs the case, primarily because he just doesn't believe                                               

that that law applies to him."                              19  

                            Barry argued on appeal that the court had denied his self-representation  


request because it "disagreed with Barry's view of the law."20                                                                        We concluded that the  


ruling was based instead on Barry's "behavior in 'persist[ing] in his eccentric defenses  


to the point where it was virtually impossible to hold any meaningful discussion of his  


case and to the point where [his] behavior suggested that he would not comport himself  



with the "modicum of courtroom decorum" required by McCracken .' " 


                            In  reaching  our  decision  in  Barry  H.,  we  cited  favorably  the  court  of  


                                                                              22     In Falcone  a criminal defendant was initially  

appeals' opinion in Falcone v. State.  


allowed to represent himself, but the superior court appointed counsel after the defendant  


"filed bizarre pretrial motions, and insisted on presenting a defense based on the Uniform  


Commercial Code, admiralty  jurisdiction, and  his  religious beliefs."23                                                                                 The court of  


appeals affirmed this ruling because the record showed that the defendant had "persisted  


in his eccentric defenses to the point where it was virtually impossible to hold  any  


              18           Id.  at   1233,   1235.  

              19           Id.  at   1233.  

              20           Id.  at   1235.  

              21           Id.  at  1235-36  (alterations  in  original)  (quoting  Falcone  v.  State,  227  P.3d  

469,  474  (Alaska  App.  2010)).  

              22            Falcone,  227  P.3d  at  474.  

              23           Id. at 473.  


                                                                                       -7-                                                                               7265

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


meaningful discussion of his case."                                 The court cautioned, however, that "[t]he question                         

is    not    whether    the    defendant    correctly    understands    the    law    and  is  capable    of  

distinguishing a good defense from a poor one.                                              Rather, the question is whether the                         

defendant is capable of presenting his or her case in an understandable way."                                                              25  

                        In this case, the superior court did not explicitly refer to the McCracken  


factors when deciding that Jensen could not represent herself.  The court voiced its fear  


that Jensen's unfamiliarity with the CINA Rules and governing law would lead to a worse  


outcome, and that she would "make a worse record" for herself and harm her case by her  


lack of objectivity.  As the court summarized in its later written termination decision, it  


denied Jensen's self-representation request "due to her lack of knowledge regarding the  


legal process, her inability to regulate her behavior in the courtroom, and her difficulty  


in having an objective view."  But Jensen's ignorance of the legal process and her lack  


of objectivity are not relevant to whether she can represent herself;26 the question is rather  


whether  she  "is  capable  of  presenting  [her]  allegations"  -  even  if  her  position  is  


uneducated and lacking perspective - "in a rational and coherent manner."27  


                        The court's other finding, however - that Jensen lacked the ability "to  


regulate her behavior in the courtroom" - is sufficient to justify denial of Jensen's  


request under McCracken 's third prong:   whether the person "is willing to conduct  


                                                                                                               28     The  transcript  of  the  

[herself]  with  at  least  a  modicum  of  courtroom  decorum." 


            24          Id.  at 474.

            25          Id.


         See id.       



                        McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).  

            28          Id. at 92.  


                                                                            -8-                                                                    7265

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


termination proceeding shows that the court had concerns about Jensen's courtroom  


demeanor within the first hour of the trial's first day; the court took an early break in  


proceedings to allow Jensen to "talk with her attorney about the condition that she's in  


today . . . [b]ecause I don't want to make a finding that she is or isn't on something, but  


she is having  trouble tracking  the - and  sticking  to  just the question."   The court  


continued, "And I don't know whether it's because she didn't sleep well last night or  


otherwise has taken something."  Jensen interjected, "It's because I'm nervous, Your  


Honor," but the court advised the parties to "take a break and have [counsel] talk with  


[Jensen] about whether she really is in a condition to be testifying today and proceeding."  


When the parties returned to the courtroomthe court reiterated its concerns about keeping  


Jensen focused during her testimony:  "I am not convinced that you are in very good  


shape to be testifying because of your inability to follow [your attorney's] directions. . . .  


If you feel that you're not under the influence of anything and that you are okay to testify,  


I will let you continue."  Trial went on after Jensen assured the court that she was "in  

condition to testify today."  But the court later noted in its written decision that it "was  


concerned at times whether [Jensen] was under the influence[,] as she exhibited some  


similar symptoms to those described [in reports about her drug use]."  


                    During the next trial day, Jensen's talking at counsel table interrupted other  


witnesses' testimony, and the court's instructions to her imply that it had been an ongoing  


problem.         The court acknowledged that the proceeding was "upsetting" and  "really  


difficult" for Jensen to sit through quietly, but it asked that unless she could talk with her  


counsel less obtrusively, she "could sit in the back . . . [and] wait and talk to him at a  


break, and . . . that might be easier for [her] and for the other people."  Jensen apparently  


moved to the back of the courtroom for the duration of the trial day.  The next day the  


court observed that "[i]t was borderline yesterday keeping her in the courtroom for a  



                                                                -9-                                                         7265

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

                                Our review of the "courtroom decorum" basis for denying Jensen's self-                                                                                                 

representation    request    necessarily    relies    to    a    great    extent    on    the    court's    own  

contemporaneous description of what it was seeing and reacting to in the courtroom.                                                                                                                          A  

                                                                                                                       29    But the record supports at least two  

more detailed record would better aid our review.                                                                                                                                                        

possibly related concerns:  that Jensen was under the influence of some substance that  


made it hard for her to stay on track during her testimony, and that she was unable to  


refrain from interfering with the testimony of other witnesses by her conduct at counsel  


table.  While not every interaction leading up to the court's responses to these concerns  


is discernible from the record before us, the seriousness of the concerns is evident in the  


court's responses:  taking an early break in proceedings to allow Jensen and her counsel  


to assess whether she was fit to continue, and moving Jensen to the back of the courtroom  


to minimize her interruptions.  


                                Finally, we note that the trial court took steps to minimize any prejudice its  


ruling may have caused Jensen.  The court invited her to make an additional statement at  


the close of trial; it also informed her that it could "have a separate hearing about whether  


there are, in fact, witnesses that would be helpful to [her]" but whom her attorney had  


decided not to call.  At the end of trial Jensen declined the opportunity to either give an  


additional statement or put on more witnesses.  


                                We conclude that the court did not abuse its discretion in denying Jensen's  


request to represent herself.30  


                29              CompareSagers                            v. Sackinger,318P.3d860, 864 (Alaska2014)(reviewing                                                           

denial of request for continuance on basis of illness and noting that the trial judge                                                                                                             

"carefully and repeatedly described for the record his contemporaneous observations of                                                                                                                      

 [the moving party's] appearance, conduct, and demeanor; this record greatly aids our                                                                                                                   

appellate review of the issue").                         

                30              OCS  also  contends  that  the  court  properly  denied  Jensen's  request  to  



                                                                                                   -10-                                                                                             7265

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

V.        CONCLUSION  

                   We AFFIRM the superior court's decision to terminate Jensen's parental  



          30       (...continued)  


represent herself because the request came at the start of the third day of trial and, if  


granted, would likely have delayed the proceedings to the child's detriment.  But the  


superior court did not mention timeliness as a reason for denying the motion or make any  


findings about the likelihood of delay; we are therefore unable to affirm the denial on  


that basis.  

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