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Jensen D. v. State, Department of Health & Social Services

Supreme Court of Alaska

July 27, 2018

JENSEN D., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

          Appeal from the Superior Court of the State of Alaska, Fourth Judicial District No. 4FA-16-00020 CN, Fairbanks, Jane F. Kauvar, Judge.

          August J. Petropulos, Juneau, for Appellant.

          Aisha Tinker Bray, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Carol L. Jacoby, Assistant Public Advocate, Fairbanks, and Chad Holt, Public Advocate, Anchorage, Guardian Ad Litem.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          MAASSEN, Justice.

         I. INTRODUCTION

         A mother appeals the superior court's decision to terminate her parental rights to her seven-year-old daughter. The mother moved to represent herself in the middle of trial; on appeal she contends that the superior court abused its discretion when it denied her request on grounds that she lacked knowledge of the legal process, was unable to regulate her behavior in the courtroom, and could not view the case objectively.

         We conclude that the record supports the court's decision that the mother was unable to act with the courtroom decorum necessary for self-representation. On that ground we affirm the denial of the mother's request.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Jensen D. is the mother of Emery, a seven-year-old girl who has been in the custody of the Office of Children's Services (OCS) since 2016.[1] OCS's efforts to reunite the two focused on Jensen's problems with substance abuse and mental health. In November 2016 OCS filed a petition to terminate Jensen's parental rights, asserting that none of its efforts had been successful because of Jensen's "unpredictable and dangerous behaviors, her significant mental health issues, and her continued abuse of substances."

         B. Proceedings

         Jensen was represented by appointed counsel. In April 2016 the court held a representation hearing to consider Jensen's request for a different attorney. Jensen asserted that she was having "a difficult time communicating with" her attorney and that he had failed to "follow through with what he says he's going to do [about] somehow convincing OCS to start my classes, somehow convincing them to pay for my therapist." The court asked Jensen when she had last used methamphetamine, observing that she seemed to be exhibiting its effects; she replied, "Honestly, it's been about a week." The court went on to conclude that the attorney's work on her behalf appeared to be "exemplary" and that there was no basis for removing him. Jensen made no request to represent herself at this hearing.

         In June 2017 the court held a four-day termination trial. During the first day of trial the court again suspected that Jensen was under the influence of drugs or alcohol, apparently because of the lack of focus in Jensen's testimony; less than an hour into the proceedings the court took an early recess to allow Jensen and her attorney to consult about whether she was actually "in a condition to be testifying today." The trial proceeded on Jensen's assurance to the court that she was able to testify. The following day, however, the court advised Jensen that her talking at the counsel table was interfering with other witnesses' testimony; the court suggested that she sit in the back of the courtroom and consult with her attorney only during breaks in order to minimize disruptions. Even so, the court had to remind her again not to interrupt others' testimony.

         At the start of the trial's third day, Jensen asked that she be allowed to represent herself. She contended that she was not being "properly defended" because her attorney was not calling the witnesses she wanted him to call or asking "the right questions." The court denied her request. It observed that Jensen did not "have the legal skills," lacked the "ability to regulate [her] behavior in the courtroom," and would probably "make a worse record for [her]self' if allowed to question witnesses. The court did, however, tell Jensen that she could read another statement at the end of the proceedings if she wanted to (she had read a lengthy one, describing her parenting efforts, at the close of the first trial day). The court also informed her that it could hold "a separate hearing" at the close of trial "about whether there are, in fact, witnesses that would be helpful to [her] that [her attorney] chose not to call."

         At the end of trial, after consulting with her attorney, Jensen declined the opportunity to give another statement - other than her lawyer's written closing - or to put on more witnesses. The court issued a detailed decision in August terminating Jensen's parental rights. It found that Emery was a child in need of aid pursuant to AS 47.10.011(1) (abandonment), (6) (risk of substantial physical harm), (8) (mental injury), (9) (neglect), (10) (parental substance abuse), and (11) (parental mental health). It found that Jensen had failed to remedy the conduct or conditions that made Emery a child in need of aid despite OCS's reasonable efforts. Finally, the court found that terminating Jensen's parental rights was in Emery's best interests and that continued placement of the child with her great-aunt was appropriate.

         Jensen appeals only the denial of her request to represent herself during the termination trial.

         III. STANDARD OF REVIEW

         "[W]e review decisions limiting or denying self-representation for abuse of discretion."[2] Under the abuse of discretion standard, we ask "whether the reasons for the exercise of discretion are clearly untenable or unreasonable."[3] "We have held on many occasions that the trial court must provide ...


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