Seth D. v. State, Department of Health & Social Services, Office of Children Services

175 P.3d 1222, 2008 Alas. LEXIS 6, 2008 WL 169821
CourtAlaska Supreme Court
DecidedJanuary 17, 2008
DocketS-12621
StatusPublished
Cited by22 cases

This text of 175 P.3d 1222 (Seth D. v. State, Department of Health & Social Services, Office of Children Services) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seth D. v. State, Department of Health & Social Services, Office of Children Services, 175 P.3d 1222, 2008 Alas. LEXIS 6, 2008 WL 169821 (Ala. 2008).

Opinions

[1225]*1225 OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A father who was a state prisoner asked to be transported so he could attend the trial on the state’s petition to terminate his parental rights. The superior court denied his requests and, following a six-day trial, terminated his parental rights. He argues here that denying his motion was both an abuse of discretion and a denial of procedural due process. He also argues that it was error to terminate his parental rights. Because he participated telephonically the first four days of trial, personally attended the last two days, and testified in person, there was no deprivation of due process. And because he testified in person and was given an adequate opportunity to participate and confer tele-phonically with his lawyer during the first four days of trial, any possible error in applying AS 33.30.081 was harmless. We also conclude that the superior court did not commit clear error in terminating the father’s parental rights. We therefore affirm.

II. FACTS AND PROCEEDINGS

Lacey D. is the daughter of Seth and Tiffany D.1 She was born in January 2001.2

The Alaska Office of Children’s Services (OCS) first received a report of harm regarding Lacey in June 2002 but closed its file because the family could not be located. When it received a second report of harm in December 2002, OCS located Seth and Tiffany and conducted a home visit to their apartment. During the visit, the social worker found a marijuana grow operation in the apartment. OCS consequently requested that Seth be tested for illegal substance use. The results were positive. OCS therefore recommended that Seth participate in substance abuse treatment and prepared a care and safety plan. He refused to comply with OCS’s recommendation and only engaged with OCS through counsel.

In February 2003 OCS requested a temporary custody hearing. After a hearing the superior court entered a temporary custody order, finding that there was probable cause to believe Lacey was a child in need of aid under AS 47.10.011(6), (9), and (10). The court granted OCS temporary custody; OCS then allowed Lacey to remain in Seth’s care.

In July 2003 Seth stipulated that Lacey was “a child in need of aid pursuant to AS 47.10.011(1) and (10) for the reasons stated in the petition for adjudication filed in February 2003.” The superior court adopted the stipulation the same day Seth signed it.

Seth began a new plan with OCS in September 2003. Lacey was still in his physical custody and they appeared to be healthy, happy, and well-bonded.

Seth was jailed in November 2003 for violating the terms of his probation by testing positive for illegal substances, and Lacey was removed from his custody. OCS briefly placed Lacey with her maternal grandmother before placing her in foster care in Kenai. In November 2003, following a November 25 hearing, the superior court granted OCS custody of Lacey for up to two years.

In April 2004, after Seth’s release from jail, Lacey was placed with Seth to begin trial home visits. The placement seemed acceptable to the social worker, but while Lacey was in Seth’s physical custody he was twice charged with shoplifting; he missed his arraignment on one of the charges, and a warrant was issued for his arrest.

Seth was arrested in August 2004 while Lacey was present. The arresting officer thought he appeared to be very high. Tiffany was also arrested at this time. Lacey reacted to seeing her father in handcuffs and her mother’s arrest by screaming, crying, acting frantic, and pleading with the officers not to arrest her mother.3 When arrested [1226]*1226Seth possessed prescription morphine pills that had not been prescribed to him. Lacey was removed from Seth’s custody in August 2004.

OCS filed a petition in February 2005 to terminate Seth’s parental rights. It amended the petition about a year later. Trial was scheduled for the week of August 7, 2006.

Seth, who was then a prisoner of the State of Alaska, filed a mid-July 2006 motion asking that he be transported to the parental-rights termination trial so he could attend the trial and testify.4 The court denied the motion on August 1. Seth gave additional reasons for his motion on the first morning of trial. The superior court again denied the motion. Trial was conducted over six days, on August 7, 8, 10, 11, and September 7 and 8, 2006. Seth remained incarcerated until mid-August 2006. He participated telephoni-eally from jail the first four days of trial and was physically present the last two. Twenty-four witnesses, including Seth himself, testified.

Following trial, the superior court found that Lacey was a child in need of aid under AS 47.10.011(1), (8), and (10).5 The superior court also found that Seth had not remedied the conduct or conditions that put Lacey at substantial risk of harm, that OCS had complied with the reasonable effort requirements of AS 47.10.086, and that it was in Lacey’s best interests to terminate Seth’s parental rights. The court also made findings justifying the termination of Tiffany’s parental rights. The court then ordered Seth and Tiffany’s parental rights terminated.

Seth appeals.6

III. DISCUSSION

A. Standard of Review

We review decisions regarding the telephonic trial or hearing appearance of a party for abuse of discretion.7 We review de novo whether a decision requiring a parent who is a state prisoner to participate tele-phonically rather than be transported violates his right to due process.8 We will reverse the factual findings of the superior court in a parental rights termination case only when they are clearly erroneous, a standard met only if we are left with a definite and firm conviction that a mistake has been made after review of the entire record.9 When reviewing factual findings, we view the evidence in the light most favorable to the party prevailing below.10 Whether the trial court’s findings are consistent with the child-in-need-of-aid statutes is a question of law that we review de novo.11 We bear in mind at all times that terminating parental rights is a drastic measure.12

B. The Superior Court Did Not Violate Seth’s Right to Due Process by Denying His Motion for Transport.

Seth argues that he was denied his due process right to be present in the courtroom throughout the trial by the superior court’s denial of his motion for transport.13 [1227]*1227He first asked about three weeks before trial was to begin to be present at trial so he could testify in person as well as hear the witnesses and see the evidence. He next asked at the beginning of the first day of trial to be transported so he could hear the witnesses and see the evidence himself because he has a learning disability.

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Cite This Page — Counsel Stack

Bluebook (online)
175 P.3d 1222, 2008 Alas. LEXIS 6, 2008 WL 169821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seth-d-v-state-department-of-health-social-services-office-of-alaska-2008.