Opinion
Superior Court No. S-12166.
December 6, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge, Superior Court Nos. 3AN-03-00365/366/367/368/369/370 CP.
Appearances: Robert L. Breckberg, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Office of Public Advocacy, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for Appellee.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, AND CARPENETI, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. L.H. appealed a superior court order terminating her parental ties to six of her children. She raised only two issues: whether the superior court erred in denying a motion to continue her trial and whether the court applied the wrong standard of proof in determining by a preponderance of evidence that the state made active but unsuccessful efforts to reunite her with her children.
2. We addressed both points in an order entered on July 18, 2006. A copy of the order is incorporated in this decision as Appendix A. The order first determined that the superior court did not abuse its discretion in denying L.H.'s motion for a continuance. As to the second point, the order accepted the state's concession that the constitution required the active-efforts finding to be made by clear and convincing evidence. Accordingly, the order remanded the case to the superior court, directing the original trial judge, Judge Dan A. Hensley, to enter supplemental findings on the point under the correct standard. The order further provided that the parties would have the right to submit supplemental briefs addressing the court's findings on remand. This court retained jurisdiction over L.H.'s appeal pending completion of the proceedings on remand.
3. On September 13, 2006, after reconsidering the active-efforts issue as directed by our order, Judge Hensley issued written findings on remand determining by clear and convincing evidence that the state made active but unsuccessful efforts to reunite L.H. with her children. The superior court's order was then served on the parties and transmitted to this court. A copy of Judge Hensley's order on remand is incorporated in this decision as Appendix B.
4. Neither party submitted supplemental briefing within the time allotted by this court's remand order. The appeal has now been resubmitted to this court for decision of the remaining point without further briefing.
5. Judge Hensley's findings on remand address and resolve the original error in failing to apply the correct standard of proof, clear and convincing evidence. L.H. has not challenged the findings on remand and has raised no additional points of error. Because Judge Hensley's unchallenged order on remand cures the error in the original findings and because this court's July 18 order resolved the only other issue L.H. raised on appeal, we AFFIRM the superior court's order terminating L.H.'s parental rights.
APPENDIX A IN THE SUPREME COURT OF THE STATE OF ALASKA
L. H., Appellant v. State of Alaska, OCS, Appellee.
Supreme Court No. S-12166
Order
Remand to the Trial Court
Date of Order: 7/18/2006
Trial Court Case # 3AN-03-00365 CP
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
IT IS ORDERED:
1. L.H. appeals an order entered by Superior Court Judge Dan A. Hensley terminating her parental ties to six of her children.
2. L.H. initially contends that the superior court erred in denying the motion she made at the outset of the termination trial, requesting a continuance to enable her to obtain representation by a private attorney of her own choice. Having considered the parties' briefing and reviewed the record, we find no abuse of discretion in denying L.H.'s motion for a continuance. Judge Hensley's exemplary on-record findings show that he carefully balanced all relevant factors and properly concluded that balance "clearly favor[ed]" denying L.H.'s last minute request for a lengthy delay.
See Burleson v. State, 543 P.2d 1195, 1198 (Alaska 1975) (recognizing that trial courts are vested with discretion in ruling on motions for continuances and that "it will not always be the case that a continuance should be granted to afford [a litigant] the opportunity to secure counsel of his choice").
In relevant part, Judge Hensley found:
The motion to continue the trial is denied. In making that decision I'm required to balance [L.H.]'s interest in a delay to obtain different representation, versus the prejudice to the parties, and more importantly any prejudice to the children. I question the validity of [L.H.]'s claim that she needs to delay to obtain another lawyer, which may improve her level of cooperation and interest and trust in the matter. She has caused considerable delay already. I went back through the log notes. Back in October she talked about getting another lawyer, did not do it at that time. During a large portion of 2004 she was out of contact with her lawyer, causing delay of the trial. Ms. Wibker [the state's counsel] is also correct that we had to continue a trial because of her no-show at one point in the past.
. . . [A]lthough [L.H.] may not trust Mr. Breckberg [her appointed counsel], that's not Mr. Breckberg's fault. Mr. Breckberg's representation, at least in court as I can see it, has been aggressive and effective. I don't believe that [L.H.] is likely to get any substantially different substantive advice from any other lawyer, and therefore I don't believe that the end result would be that she — her level of cooperation or trust in the system would improve in any meaningful way if we delayed the trial for her to consult with another lawyer.
On the other hand, there's significant prejudice to the state and to the children, which would be caused by a delay. Prejudice to the state is that the state is here ready to go, has subpoenaed witnesses, has an expert witness ready to go. And although I suppose that testimony could be delayed and we could call her back another time, its cost and inconvenience to those witnesses and to the lawyers who are prepared to go to trial today. More importantly, I believe there would be significant prejudice to the children if we had a several month delay. The children have been in custody, state's custody, in excess of two years. Just as a general matter, that's already too long, and they're entitled to know what's going to happen to them one way or the other, and another six-month or so delay would be unfair to them.
[M.P.] and [F.P.] have been unstable during their time in state custody. They have run — gone to their mother's at least once. They ran away again. I don't — maybe the evidence as to what they did will come out during this trial. It seems to me that for those two girls the sooner the issue of parental rights is resolved, the more stable those girls' lives will be. If [L.H.] wins this trial, then those girls will go back to her mother and that will be the end of it. If [L.H.] loses this trial, the likelihood of their continuing running and her ability to participate in that will be reduced dramatically, so for those reasons that balance in my view clearly favors not granting the continuance and going forward today.
3. L.H. also contends that the superior court applied the wrong standard of proof in determining by a preponderance of the evidence that the state made active but unsuccessful efforts to reunify her with her children. The state concedes on appeal that the constitution requires this finding to be made by clear and convincing evidence. Because this concession appears to have legal merit, we remand this case to the superior court to allow the trial judge to redetermine the point under the required standard.
See Santosky v. Kramer, 455 U.S. 745, 769-70 (1982).
4. On remand, the Presiding Judge of the Third Judicial District shall assign this matter on a pro tempore basis to the original trial judge, Judge Dan A. Hensley, for entry of a supplemental finding, based on the existing trial record, determining whether the state proved compliance with the active-efforts requirement by clear and convincing evidence. The superior court should then distribute the supplemental finding to the parties and transmit it to the clerk of the appellate courts.
If Judge Hensley is not available to accept the pro tempore assignment within a reasonable time, the Presiding Judge should notify the clerk of the appellate courts and take no other action pending further direction.
5. Within fifteen days after the superior court distributes the supplemental finding, the parties may submit supplemental briefs addressing that finding. The briefs will be due simultaneously, may be filed in memorandum form, need not be accompanied by a supplemental excerpt, and shall not exceed fifteen pages each. No responses to the supplemental briefs will be allowed.
6. This court will retain jurisdiction over this appeal pending conclusion of the proceedings on remand and will issue a decision on L.H.'s active-efforts argument after the supplemental briefs are submitted or the time for filing supplemental briefing has expired.
7. This matter is REMANDED for further proceedings as directed in this order; this court RETAINS JURISDICTION pending completion of the proceedings on remand.
Entered by direction of the court.
Clerk of the Appellate Courts
/s/ Cheryl Jones, Deputy Clerk
cc: Supreme Court Justices Presiding Judge Christen Judge Dan Hensley Trial Court Appeals Clerk/Anchorage
APPENDIX B IN THE SUPERIOR COURT FOR THE STATE OF ALASKATHIRD JUDICIAL DISTRICT AT ANCHORAGE
In the matter of: F.P., 07/23/89 M.P, 07/23/89 J.H., 12/20/90 N.H., 08/01/92 J.L., 04/15/01 J.L., 10/01/02 Children Under the Age of Eighteen (18) Years.
Case No. 3AN-03-365/66/67/68/69/70 CP Supreme Court No. S-12166
FINDINGS ON REMAND
The superior court's order has been edited to conform with our technical rules.
I find by clear and convincing evidence that the State made active but unsuccessful efforts to reunite L.H. with her children. This finding is based on the following evidence.
These findings are made pursuant to the Supreme Court remand order dated 7/18/2006.
In September 2003, when L.H.'s two older children ran away from home because they were unsafe, the State did not remove the children. Instead, in exchange for L.H.'s promise to keep the children away from her boyfriend J.L., and to participate in a case plan, the children remained placed in the home. Unfortunately, as noted in the original findings, L.H. did not keep the children away from her boyfriend.
After removing the children from the home in 2003, OCS provided a case plan for reunification and made referrals for L.H. to comply with the plan. These included referrals for anger management and parenting classes. These referrals were appropriate because of the history of domestic violence in L.H.'s home, and L.H.'s failure to protect her children from abuse.
In April of 2004 L.H. disappeared and thus failed to comply with her case plan. In October of 2004 an OCS worker found L.H. working at Penney's and asked her to come to the office to talk about visiting her children and working on a plan for reunification, but L.H. told the worker to leave her alone.
OCS's next contact with L.H. was in April of 2005 after the state received a report of harm regarding L.H.'s newborn child. OCS developed a new case plan for reunification that included additional parenting classes and a mental health assessment. These requirements were appropriate because L.H. failed to send her children to school, failed to provide adequate medical treatment and refused to cooperate with OCS. The state arranged for a mental health assessment and parenting classes through Cook Inlet Tribal Association in hopes that L.H. would be more comfortable with a culturally sensitive treatment team. But L.H. refused to cooperate with OCS.
At trial L.H. did not argue that OCS failed to make active efforts toward reunification. Instead she argued that she complied with the case plan but that OCS continued to demand additional but unnecessary requirements for reunification. As noted in the original findings, L.H. did not comply with the case plan. And, as noted above, the case plan was not unreasonable.
For these reasons I find by clear and convincing evidence that the state made active efforts to reunite L.H. with her children.
DATED: 9/13/06 /s/
Dan A. Hensley
Superior Court Judge Pro Tem