Appeal
from the Superior Court No. 3 AN-14-04479 CI of the State of
Alaska, Third Judicial District, Anchorage, Erin B. Marston,
Judge.
Helena
Dara, pro se, Memphis, Tennessee, Appellant.
Herbert M. Pearce, Law Office of Herbert M. Pearce,
Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
WINFREE, Justice.
I.
INTRODUCTION
The
superior court granted joint legal and primary physical
custody of a child to his maternal grandmother and
step-grandfather. The child's mother - who retained joint
legal custody and visitation rights - appeals, arguing that:
she was entitled to court-appointed counsel during the
proceedings; the order violates her Fourteenth Amendment
right to direct the upbringing and education of her child;
and the court erred in its custody determination. Because the
mother provides no legal basis for her claim to
court-appointed counsel, we affirm the court's decision
denying that request. Because the court applied the correct
constitutional and legal standard for third-party custody,
its factual findings were not clearly erroneous, and its
exercise of discretion was not unreasonable, we affirm the
court's order awarding joint legal and primary physical
custody of the child to the grandparents.
II.
FACTS AND PROCEEDINGS
A.
Facts
Helena
Dara's son was born in 2006. Dara's mother and
step-father, Helena and Howard Gish, have been a significant
presence in the boy's life. In March 2009, at Dara's
request, the Gishes took the boy into their home and became
his primary care givers because his parents could not
adequately provide for him. In September, with Dara's
consent, the Gishes were appointed his legal guardians.
Through 2012 Dara had frequent contact with her son,
including overnight visitation.
Dara's
son began receiving Individual Education Plans (IEPs) from
the local school district in 2009. He received a variety of
reading and language assessments around 2012; a
neuropsychological evaluation from Dr. Kristi Fuller in 2013;
and speech, language, and occupational therapy evaluations in
January 2014. Around January 2014 the Gishes' attorney
requested that Dr. Alfred Collins, a licensed psychologist,
provide an opinion whether Helena Gish was the boy's
"psychological parent"; Dr. Collins returned an
opinion the next month that she was. In that opinion Dr.
Collins found that the boy was "developmentally very
delayed" and that although the boy had "made some
progress over the past five years, due in large part to the
efforts of Helena Gish, " he nonetheless "still
remains far behind." Dr. Collins further noted that the
"Gishes have consistently provided the high level of
support that [the boy] has required (OT, speech therapy,
evaluations, etc.)."
Later
testing-performed by Dr. Fuller in 2016 when the boy was
almost ten years old-found "low-average general
intellectual abilities, " "global deficits, with
basic reading skills falling at an early first-grade level,
and math calculation skills at an early second-grade level,
" and "the presence of dyslexia." Given the
severity of the boy's dyslexia, Dr. Fuller recommended
that he continue working with a speech pathologist the Gishes
had arranged.
B.
Proceedings
In July
2012 Dara brought an action to terminate the guardianship,
which the Gishes contested. Around the same time the Gishes
also filed a petition to adopt Dara's son. The adoption
petition was denied in March 2013, and the guardianship was
terminated in August 2014. In January 2014, after the
adoption was denied but before the guardianship was
terminated, the Gishes filed a separate complaint for custody
and visitation, which underlies this appeal. The Gishes were
represented by private counsel throughout the proceedings.
Dara had private counsel until May 2015, when she notified
the firm that she no longer needed their services.
In
March 2015 the parties arrived at a settlement agreement
under which Dara was granted primary physical and sole legal
custody, and the Gishes received regular visitation rights.
The parties stipulated that "a strong and heartfelt
bond" had developed between the boy and the Gishes and
that it was in his "best interest that he have regular
and consistent visitation" with them. But less than two
weeks after the parties reached the agreement, Dara left the
state with her son without notifying the Gishes and cut off
all communication with them. The Gishes hired a private
investigator and discovered that Dara and her son were in
Tennessee; another family member subsequently informed them
of Dara's precise whereabouts. After the Gishes informed
the superior court that Dara had violated the settlement
agreement's visitation provisions and left the state with
the boy, the court issued an order granting them interim
custody. In July 2015 the Gishes traveled to Tennessee and,
using the interim custody order, secured the assistance of
local authorities in obtaining physical custody of the boy
and bringing him back to Alaska.
The
Gishes moved to set aside the settlement agreement and
resumed their custody action against Dara when they returned
to Alaska. Trial was scheduled for February 2016. At a
November 2015 status hearing Dara informed the court she was
no longer represented by counsel and was having some
difficulty knowing what to file; she had requested appointed
counsel at the legal aid center but had been denied. Dara
again brought up the issue of appointed counsel at a January
2016 pretrial conference, this time requesting that the court
appoint her counsel under AS 25.23.180(h), which provides a
right to counsel in parental rights termination proceedings.
The court informed Dara that the statute did not pertain to
custody determinations, and that the court knew of no avenue
under which it might be authorized to appoint counsel in a
case such as hers.
In
February 2016 the parties agreed to a temporary visitation
schedule under which the boy would live with Dara and her new
husband in Tennessee over the following summer. Trial was
continued and a status and custody hearing was scheduled for
July. In April the Gishes sent Dara a letter suggesting her
son's progress in overcoming his special needs might be j
eopardized by the summer away from his doctors and therapists
in Alaska and proposing an alternative visitation schedule.
Dara declined to alter the agreed-upon schedule and in May
filed a motion to enforce visitation. The court held a
hearing and issued an order enforcing the original visitation
agreement. The court noted Dara's son might lose some
progress he had made in therapy but was reassured by
testimony from Dara and her new husband that they had
enrolled the boy in a summer therapy program at the Sylvan
Learning Center.
Dara's
son spent the summer in Tennessee with Dara and her husband,
a man she had known for only about a month before the
marriage. Dara's son did not attend the program in which
Dara had testified to enrolling him. In late July the court
held the scheduled status and custody hearing. Both Helena
and Howard Gish attended in person; Dara and her husband
participated telephonically. The court took care to review
the third-party custody legal standard with Dara at the
beginning of the proceedings, and on numerous occasions the
court explained hearing procedures. Helena and Howard Gish
testified about the boy's special needs, what actions
they had taken to address those needs, their concerns about
Dara's capacity to care for the boy, and why they were
seeking custody. Dara raised concerns about the Gishes'
care-giving decisions and the safety and stability of the
Gishes' home. Her concerns about the Gishes' care
giving stemmed in part from her own experience being raised
by the Gishes, which she viewed unfavorably. Dara and her
husband also testified to their understanding of the
boy's special needs and what steps they had taken to
address those needs. On cross-examination the Gishes'
attorney raised the issue of the stability of Dara's home
life, pressing Dara's husband for details concerning his
relationship with his own five children. After an
argumentative exchange Dara's husband eventually had an
extended, loud, and profane outburst, for which he later
apologized.
Three
days after the hearing concluded the superior court issued
its oral decision on record. The court found the Gishes had
proved by clear and convincing evidence that the boy would
suffer clear detriment if sole custody were granted to Dara;
it granted the Gishes and Dara joint legal custody (with
final decision-making authority vested in the Gishes),
granted the Gishes primary physical custody, and granted Dara
regular visitation. Dara appeals the superior court's
final custody order.
III.
STANDARD OF REVIEW
"We
... review constitutional questions de novo, adopting the
rule of law that is most persuasive in light of precedent,
reason, and policy."[1] "Likewise, ' [w]hether the
court applied the correct standard in a custody determination
is a question of law we review de novo.'
"[2]
"The
superior court has 'broad discretion in custody
awards.' "[3]Consequently, "[w]e will reverse a
superior court's custody and visitation determination
'only if the superior court has abused its discretion or
if its controlling findings of fact are clearly
erroneous.' "[4] We will find an abuse of discretion when
the superior court " 'consider[s] improper factors
in making its custody determination, fail[s] to consider
statutorily mandated factors, or assign[s] disproportionate
weight to particular factors while ignoring others.' We
review factual findings, including determinations of
psychological parent status, for clear
error."[5] Factual findings are "clearly
erroneous when a review of the record leaves us with the
definite impression that a mistake has been
made."[6] "[W]e ordinarily will not overturn a
trial court's finding based on conflicting evidence,
" nor will we "re-weigh evidence when the record
provides clear support for the trial court's ruling; it
is the function of the trial court, not of this court, to
judge witnesses' credibility and to weigh conflicting
evidence."[7]
IV.
DISCUSSION
Dara
challenges the superior court's decision to award custody
to the Gishes on three grounds: (1) she was entitled to
appointed counsel; (2) the decision violated her Fourteenth
Amendment right to direct the upbringing and education of her
child; and (3) the superior court erred in its custody
determination.
A.
Dara Was Not Entitled To Appointed Counsel.
Dara
argues that she should have received court-appointed counsel,
stating that she "asked for [counsel] and was denied and
I believe that this is one reason that I was unable to get my
child back." Dara raised this issue twice before the
superior court. At a status hearing in November 2015 the
court inquired why in some time it had not received any
communication from Dara; she responded that she was not sure
what she should file because she had no money for an
attorney, and that she had gone to legal aid and requested an
attorney but was denied. In late January 2016, about one week
before the then-scheduled trial, Dara requested appointed
counsel under AS 25.23.180(h), which provides a right to
counsel in parental rights termination proceedings. The court
informed her that the statute did not apply because this was
a custody proceeding and parental rights were not being
terminated. The court explained it was aware of case law
requiring appointed counsel in custody cases where the state
provided representation for the opposing party[8] but that
situation did not apply, and the court was aware of no other
avenue authorizing it to appoint counsel.
Dara's
claim-"that when somebody is trying to take a child from
a parent and said parent does not have the means to afford an
attorney that one shall be appointed" - is accurate in
the parental rights termination context, [9] but not in a
custody case when neither party has the benefit of
state-appointed counsel.[10] In our recent Dennis O. v.
Stephanie O. decision we held that in custody cases
"self-represented indigent parents facing opposing
parents represented by private counsel are not, as a class,
deprived of due process rights solely because they do not
have counsel."[11] The reasoning in Dennis O.
applies also in the third-party custody context; if the third
party seeking custody does not enjoy state-appointed counsel
then no "fairness concerns" demand, as a rule,
appointing counsel for the opposing parent.[12] Dara presents
no ...