Appeal
from the Superior Court of the State of Alaska, No.
1KE-14-00010 CI First Judicial District, Ketchikan, William
B. Carey, Judge.
Michael P. Heiser, Ketchikan, for Appellant.
Leif
Thompson, Leif Thompson Law Office, Ketchikan, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
Justices. [Fabe, Justice, not participating.]
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
The
superior court granted sole legal and primary physical
custody of a child to her grandparents, following a trial at
which the court found by clear and convincing evidence that
leaving the child in her mother's custody would be
clearly detrimental to the child's welfare. Nine months
later the mother moved to modify custody, attesting by
affidavit that she had improved her life in a number of ways
and had accomplished goals the court had set for her. She
also argued that the court's grant of custody following
trial had been only temporary, and she was thus entitled to a
biological-parent preference and the court could modify
custody without proof of a substantial change in
circumstances. The court denied her motion without a hearing,
holding both that its custody decree was intended to be final
and that the mother failed to show the substantial change in
circumstances necessary to entitle her to an evidentiary
hearing.
We
agree with the superior court's holdings, and we
therefore affirm its denial of the mother's modification
motion without a hearing.
II.
FACTS AND PROCEEDINGS
A.
Facts
Abby
D.'s daughter Pam was born in July 2011.[1] The child's
father was never involved in her life and is not a party to
these proceedings.
Abby
has had mental health issues since she was a child. In
January 2014 she overdosed on one of her medications and was
unconscious for two or three days. At the custody trial she
admitted she had taken more than the prescribed amount of the
drug "on an impulse decision" but denied it was a
suicide attempt; she later described the incident as "a
medical reaction to the pills [she] was taking."
As a
consequence of this incident, however, Abby's mother Sue
Y. and Sue's husband Todd Y. petitioned for guardianship
and eventual custody of Pam. The evidence adduced during the
course of the custody proceedings demonstrated that other
aspects of Abby's life were also difficult. She had
changed homes frequently over the ten years preceding the
custody trial; she had also endured periods of homelessness
and spent time in a women's shelter. The homes she did
have were described by others as uninhabitable and
unsanitary. She was the victim of domestic violence, and a
friend filed a domestic violence petition against her.
Abby
also had a problem with marijuana dependence. She smoked
marijuana "every 2 to three hours" but refused to
describe herself as a heavy user because she intended to
quit, though she admitted "struggl[ing] a little bit on
that." The Office of Children's Services (OCS)
opened an investigation in May 2012 after Pam tested positive
for marijuana, but she tested negative several months later,
and two OCS caseworkers testified at trial they had no
concerns about Abby's parenting. Abby testified that Pam
"is not in the presence of marijuana smoke or
paraphernalia, " but she acknowledged that her usual
practice was to smoke outside or in the bathroom. When the
court questioned her about her use of marijuana while taking
care of Pam, she clearly limited her concern to Pam's
exposure to smoke; she rejected the court's apparent
concern about whether she could be a proper caretaker while
under the influence, arguing that her marijuana use would
only be a problem if it meant she was "not able to care
for [her] child, " that it would be more dangerous for
her to smoke somewhere else while "leaving [Pam] four
flights above ground, " and that smoking marijuana is
"not illegal."
The
evidence showed that Pam, like her mother, had a difficult
life. She suffered from microcephaly, failure to thrive,
joint laxity, slow hair growth, and a heart murmur. Pam's
pediatrician testified that these problems can have a variety
of causes. She testified that microcephaly and failure to
thrive are most commonly genetic; two "of the thousands
of reasons that [they] can happen" are abuse or neglect,
but some "[c]hildren are just small. . . . As [with] any
statistical graph, there are people who are at the low end
and [people who are] at the high end."
Still,
the pediatrician testified that because of the potential for
abuse or neglect she "keep[s] a close eye on any child
who has failure to thrive or microcephaly. And [that is] why
. . . we were concerned about it enough to send [Pam] to
pediatric specialists." She testified that Abby
"has always seemed very involved and very concerned
about [Pam]'s medical problems and her medical progress,
" and that the only evidence of abuse or neglect she
heard was Sue's allegations. In fact, two of Pam's
specialists cleared her while she was still in Abby's
custody. The superior court accordingly found that Abby
"does seem to take appropriate measures to deal with the
health issues that the little girl has."
B.
Proceedings
The
first proceeding relevant to this case was a hearing on Sue
and Todd's petition to be appointed as Pam's
guardians. After taking testimony from Abby and a family
friend, the superior court concluded that while there was
"a lot of evidence that would be extremely relevant in a
custody matter, " guardianship did not seem to be an
appropriate step.
Two
interim custody hearings followed, at which the court heard
further testimony about Abby's drug use, mental health
issues, and alleged neglect of her parenting
responsibilities. At the end of the first hearing the court
ordered Abby to quit smoking marijuana because quitting was
"in [her] child's best . . . interests." The
court awarded visitation to Abby's mother Sue because
that was also in Pam's best interests, though the court
said it could not find by clear and convincing evidence that
Abby's custody of Pam was clearly detrimental to
Pam's welfare - but "it[ was] not that far
off."
At the
end of the second interim custody hearing the court again
expressed its concern about Abby's drug use around Pam,
but it left interim custody with Abby, finding that Sue and
Todd still had not "shown by clear and convincing
evidence at [that] point that [Abby] having custody of the
child would be clearly detrimental to the welfare of the
child." The court found that visitation with Sue
remained in Pam's best interests, and it scheduled trial
for September 2014.
In
March 2014, between the second interim custody hearing and
the trial, Abby moved to Washington with Pam. The move
violated a provision in the superior court's domestic
relations standing order which prohibited taking the child
out of Alaska. After a hearing, which Abby did not attend,
the court issued a warrant for physical custody of Pam and
granted interim custody to Sue and Todd. When Abby refused to
cede the child to Sue's custody, the court found Abby in
contempt of court. Sue and Todd took custody of Pam after
Abby returned to Alaska in June.
The
court held the custody trial in September 2014. At the close
of trial the court found by clear and convincing evidence
that it would be detrimental to Pam's welfare for her to
remain in Abby's custody. The court issued a child
custody decree awarding legal and physical custody of Pam to
Sue and Todd and a child support order requiring Abby to pay
Sue and Todd $50 per month.
Nine
months later Abby filed a motion to modify custody. Her
motion asserted first that the court's grant of custody
to Sue and Todd following trial had been only temporary and
that she had met the court's stated prerequisites for a
reversion of custody to her - prerequisites she summarized as
"get[ting] a mental health evaluation and follow[ing]
all recommendations, and also show[ing] proof of
sobriety." She also argued that because of a substantial
change in her life's circumstances, it would be in
Pam's best interests to be returned to her custody. The
court denied her motion without a hearing, reasoning that its
custody decree was intended to be permanent and that Abby
failed to show any substantial change in circumstances
justifying its modification; the court observed further that
Abby had not, in fact, shown that she had satisfied the
conditions it had advised her to meet before it would
"even consider modifying
custody."[2]
Abby
appeals the denial of her motion to modify custody.
III.
STANDARDS OF REVIEW
"Whether
the court applied the correct standard in a custody
determination is a question of law we review de
novo."[3]
"To
determine 'whether a party is entitled to a hearing on a
motion to modify custody, we review the record and arguments
de novo to determine whether the party alleged facts which,
if true, demonstrate a substantial change in
circumstances.' "[4]"In so doing, we take the moving
party's allegations as true."[5] We use our
independent judgment to review the denial of a modification
motion without a hearing; we will affirm the denial if
"the facts alleged, even if proved, cannot warrant
modification, or if the allegations are so general or
conclusory, and so convincingly refuted by competent
evidence, as to create no genuine issue of material fact
requiring a hearing."[6]
IV.
DISCUSSION
In its
initial resolution of a custody dispute between a biological
parent and any third party, including a grandparent, the
court must prefer the biological parent.[7] To overcome that
preference "the non-parent must show that it clearly
would be detrimental to the child['s welfare] to permit
the parent to have custody, " that the parent is unfit,
or that the parent has abandoned the child.[8] A third party
seeking either visitation or custody bears the burden of
proving one of these circumstances by clear and convincing
evidence.[9] But "[w]hen the non-parent has
already been granted permanent custody, the parental
preference drops out in subsequent modification
proceedings."[10] At that point any modification motion is
subject to the usual test of AS 25.20.110(a), meaning that
the custody decree will be modified only "if the court
determines that a change in circumstances requires the
modification of the award and the modification is in the best
interests of the child."[11]
In this
case Abby argues that the superior court awarded Sue and Todd
only temporary custody at the close of the September 2014
trial, and therefore Abby did not need to show a change in
circumstances as required by AS 25.20.110(a) in order to
support a modification of that award. She contends further
that because Sue and Todd's custody was only temporary,
she remained entitled to the Turner preference for
the biological parent. Alternatively, Abby argues that even
if the court's award was for permanent custody, her
modification motion showed a substantial change in
circumstances that entitled her to an evidentiary hearing.
A.
The Superior Court's Order Following Trial Was A Final
Custody Decree.
Abby's
argument that the superior court's grant of custody to
Sue and Todd was only temporary is based in part on some of
the court's oral remarks at the close of trial: that its
order was "not written in stone" and that granting
Sue and Todd custody "doesn't mean it has to happen
forever."[12] From this Abby argues that when the
court denied her motion to modify custody it used the wrong
standard, because she did not need to show a substantial
change in circumstances in order to effect a change in merely
temporary custody. She argues that this case is governed
instead by the proposition that "[p]arents can regain
custody [from non-parents] in a temporary-custody case
without showing a substantial change in circumstances, and
can rely on the Turner
preference."[13]But because we conclude that the
court's custody decree was indeed permanent and final,
Abby was required to show a substantial change in
circumstances before she was entitled to a hearing.
In its
written order denying Abby's modification motion, the
superior court strongly rejected her argument that the
custody decree was temporary:
The court absolutely did not state in its oral findings or
anywhere else that the "custody decision was
temporary." The court never used that word and had no
subjective intent to have its order be construed as anything
but a standard custody order subject to modification under
the provisions of AS 25.20.110 and the case law interpreting
that statute. In stating in its oral findings that nothing is
written in stone, the court was simply acknowledging the fact
that any custody order is subject to modification
based on a showing of a ...