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Abby D. v. Sue Y.

Supreme Court of Alaska

September 2, 2016

ABBY D., Appellant,
SUE Y. and TODD Y., Appellees.

         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.]




         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.


         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.


         "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]


         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 ...

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