Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-11620 CI.
Karla F. Huntington, Law Office of Karla F. Huntington, Anchorage, for Appellant.
Robin A. Taylor, Law Office of Robin Taylor, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Ed and Kristina B. had one son before they permanently separated. After trial, at which the superior court heard evidence about domestic violence on Ed's part and Kristina's medical and substance-abuse issues, the court granted sole legal and primary physical custody of the child to Ed. Kristina appeals many of the court's findings of fact and legal rulings. We remand to the superior court for reconsideration of (1) whether Kristina's child support obligation should be reduced to reflect the significant cost of her court-ordered urinalysis testing, and (2) whether the restrictive visitation schedule is justified once Kristina has demonstrated a history of sobriety. On all other issues we affirm.
II. FACTS AND PROCEEDINGS
Ed and Kristina began living together in 2006, married in 2007, and had a son in 2008. They separated in October 2010. The superior court's decision on custody focused on three major issues affecting the parties' respective abilities to parent: Ed's domestic violence against Kristina, Kristina's substance abuse (involving both alcohol and prescription narcotics), and Kristina's physical challenges related to Crohn's disease and its treatment.
A. Ed's History Of Domestic Violence
In earlier proceedings the superior court found that Ed committed domestic violence against Kristina on several occasions and also that he verbally abused her. Following the custody trial, the court found that these incidents constituted a history of domestic violence for purposes of the statutory presumption against awarding custody to a parent with such a history. By the time of trial Ed had completed a state-approved 36-week batterers' intervention course and had also received individual therapy from Dr. Keith Wiger, a counselor specially trained in domestic violence issues. Based on testimony
from Ed's therapist that " Ed does not present a risk of harm to [his son]" and testimony from Ed's former fiancé e that he was never physically violent or threatening in their relationship, the court found that Ed's violence with Kristina was " unlikely to recur."
B. Kristina's Substance Abuse
Kristina's history of substance abuse dated back to her childhood; she began abusing alcohol at age 11. Witnesses at the custody trial described her continued abuse of substances to the point of incapacitation. Along with alcohol and prescription narcotics, Kristina used marijuana, cocaine, and Valium. Underlying her drug usage and physical health issues were mental health issues including " depression, anxiety, a suicide attempt (2007), and PTSD."
Kristina admitted that she suffers from alcoholism. She has participated in a number of substance abuse programs but relapsed each time. Her inability to quit drinking contributed to the loss of her teaching career, the custody of her first son, and two marriages, and it exacerbated her Crohn's disease, a serious gastrointestinal disorder that may be very painful. She had three drunk-driving convictions (1991, 2004, and 2007) and a negligent-driving conviction following a 2009 DUI arrest.
Kristina also had a history of abusing the narcotic medications prescribed to treat her Crohn's disease. The court-appointed custody investigator reported that Kristina had " multiple medical providers treating the pain associated with Crohn's Disease, and other medical health problems, and overused or misused medications from these various providers." Kristina denied misuse, but the superior court found that a tape recording " clearly captured the sounds she made while chopping up her pills and snorting them."
Given Kristina's " alcohol, medications, unresolved Crohn's pain and the mental health history," the custody investigator recommended that she go to the Mayo Clinic for assessment and treatment. Kristina did so for about six weeks in the summer of 2011, but the custody investigator was unable to retrieve all the records of that visit for her report. The investigator did receive partial records from the clinic diagnosing Kristina with " complex medical [issues], addiction, and a chronic pain syndrome" and recommending a " pain rehabilitation center and after that a chemical dependency treatment program." The Mayo Clinic apparently treated Kristina's narcotic dependencies and chronic pain syndrome, but she never completed the recommended dependency program, though she did receive outpatient therapy at Providence Behavioral Health upon her return to Alaska.
The custody investigator also recommended that Kristina be ordered to undergo urinalysis testing for alcohol every 72 hours, and the court adopted that recommendation. Upon her return from the Mayo Clinic, however, Kristina did not resume testing for four to six weeks, and she then had six gaps between tests, leaving open the possibility that she was drinking. Uninterrupted testing resumed in late December 2011, but with positive readings on December 30, 2011, and January 3, 2012.
Kristina appeared to be recovering at the time of trial. In addition to her therapy at Providence Behavioral Health, she was attending meetings of Alcoholics Anonymous. She was working full-time in a professional office setting, had her own residence, and was developing a new social network.
Still, the court had serious questions about Kristina's credibility in light of her demeanor and the inconsistencies between her testimony and that of other witnesses. In particular, the court found her untruthful with regard to the critical issue of her sobriety.
C. Kristina's Crohn's Disease
Kristina was diagnosed with Crohn's disease before her marriage. She had surgeries
to treat symptoms of the disease in February and October 2009 and again in February 2011. She was prescribed narcotics after each surgery, and there was evidence she abused these drugs. But it was also undisputed that the pain medications, even if used only as prescribed, could cause her to experience debilitating side effects.
In its custody decision, the superior court highlighted an incident in April 2011. One night Kristina suffered a bout of incontinence in the room where she slept with her son. She was unable to clean up but returned to bed, leaving feces on the floor and her pain medication patches out by the bed. A family friend and a hired custody supervisor were sleeping in adjacent rooms, but Kristina did not alert them or ask for help. In the morning it took them over an hour to rouse her.
On another occasion, the superior court found, Kristina accidentally set a fire in the garage. The court found this may have been due to her failure to use her pain medications responsibly, with due regard for the safety of others.
At trial Kristina reported that she was managing her Crohn's disease with non-narcotic medication after her treatment at the Mayo Clinic; the custody investigator testified that pharmacy records supported this assertion.
D. Procedural History
This litigation began with domestic violence petitions and interim custody hearings following the couple's separation in October 2010. In January 2011 the court adopted the custody investigator's interim recommendations and limited both parties to supervised custody, giving Kristina four days a week and Ed three. The court also ordered Ed to attend a 36-week domestic violence intervention program for batterers and ordered Kristina to submit to weekly urinalysis. The court ordered psychological examinations of both parties as well, to help ...