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  

                                                                                                                            

           corrections@akcourts.us.  



                       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-----------------------

I.        INTRODUCTION
  



                    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  

                                                                                                                        



objectively.  



                    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.  

                                                                  



II.       FACTS AND PROCEEDINGS  

                                 



          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'  



                  

testimony.  



                                                                                                                                   

                    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  

discretion."                                                                                                                                                                                                                                                                                                                                                                

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  

                                                                                                                                                                                                                                                                                                                                                  

review."4  

                                           



                             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.  

                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                                                     -4-                                                                                                                                                                         7265
  


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

IV.       DISCUSSION  



                                                                                                                         

           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.  



         5  

                                                                                                                                   

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  



                                                                                                      6  

                                                                                                                                  

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  



                     7  

                                                                                                         

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



                                 8  

                                                                                                                                     

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-----------------------

                                         10  

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.
   



            12  

                                                                              

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



            13  

                                    

                        Id. at 1234.
  



            14  

                                                                                                        

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



            15  

                                    

                        Id. at 1235.  



            16  

                                    

                        Id. at 1233-35.  



            17          Id.  at 1232.   



                                                                            -6-                                                                     7265
  


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

                                                                                                        18  

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  

                                                                                                                                                                      



                                                                                                                                                    21  

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-----------------------

                                                               24  

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.
  

                               



            26
         See id.       



            27  

                                                                                                           

                        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  



             

while."  



                                                                -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  

                                                                                                                                                                                                           

                                                                                                                                                                                  (continued...)  



                                                                                                   -10-                                                                                             7265
  


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

V.        CONCLUSION  



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

                                                                                                                    



rights.  



          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
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC