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Dara v. Gish

Supreme Court of Alaska

September 22, 2017


         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.


          WINFREE, Justice.


         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.


         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.


         "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]


         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 ...

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