Rowan B. v. State, Dept. of Health & Social Services, Office of Children's Services ( 2015 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROWAN B. SR., )
) Supreme Court No. S-15862
Appellant, )
) Superior Court Nos. 3PA-12-00057/
v. ) 00058/00059 CN
)
STATE OF ALASKA, DEPARTMENT ) OPINION
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN’S SERVICES, ) No. 7065 – November 25, 2015
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Josie Garton, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Laura Fox, Assistant Attorney General, Anchorage, and
Craig W. Richards, Attorney General, Juneau, for Appellee.
Rachel Levitt, Assistant Public Advocate, Palmer, and
Richard Allen, Public Advocate, Anchorage, Guardian Ad
Litem.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
FABE, Justice.
I. INTRODUCTION
A father appeals the termination of his parental rights to his three biological
children. The children were adjudicated children in need of aid based on findings that
the father had sexually and physically abused his daughters. In a criminal proceeding
the father was convicted on 29 counts of sexual abuse of a minor in the first degree and
one count of incest. The father sought a delay of the termination proceedings pending
appeal of his criminal convictions, but the superior court denied this continuance request.
The father appeals, arguing that the superior court abused its discretion by denying the
request. Because the superior court did not abuse its discretion in concluding that the
children’s interest in permanency weighed heavily against delaying the termination
proceedings for years while the father pursues his criminal appeal, we affirm.
II. FACTS AND PROCEEDINGS1
Rowan B., Sr. and Risa F. are the divorced parents of three children:
Agnes, Rowan Jr. (Junior), and Saul.2 After Rowan and Risa divorced, Rowan received
custody of their three children as well as custody of Risa’s two older daughters, Aeryn
and Reagan. Aeryn and Reagan have now reached the age of majority.
In 2012 Aeryn reported to the police and the Office of Children’s Services
(OCS) that she and Reagan had been physically and sexually abused by Rowan over an
extended time period. Aeryn also expressed her concern that Rowan was sexually
abusing Agnes. OCS filed an emergency custody petition and removed the minor
children — Agnes, Junior, and Saul — in June 2012.
1
We previously reviewed the superior court’s adjudication of the children
as children in need of aid (CINA). See Rowan B., Sr. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 320 P.3d 1152, 1156-57, 1159 (Alaska 2014)
(remanding and retaining jurisdiction due to legal error when denying discovery request);
Rowan B., Sr. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
No. S-15107, 2014 WL 4057175, at *1 (Alaska Aug. 13, 2014) (affirming CINA
adjudication).
2
We use pseudonyms to protect the family’s privacy.
-2- 7065
The superior court held a contested adjudication proceeding in January and
February 2013. Aeryn and Agnes both testified about Rowan’s sexual and physical
abuse. Noting that he potentially could face criminal charges, Rowan chose not to testify
at the adjudication proceedings.
At the conclusion of the adjudication proceedings, the superior court found
that Rowan had sexually and physically abused Aeryn and Agnes. Relying on Aeryn’s
and Agnes’s testimony the court found that Rowan had threatened to kill Aeryn and
Agnes if they told anyone about the abuse. The court adjudicated Agnes, Junior, and
Saul children in need of aid based on Rowan’s physical and sexual abuse of Agnes and
on Junior’s and Saul’s “repeated exposure to this severe abuse.”
Rowan appealed the CINA adjudication, in part challenging the superior
court’s denial of certain discovery requests.3 We concluded that it was error to deny
Rowan’s discovery requests without properly applying the Alaska Civil Rules, and we
therefore remanded for resolution of Rowan’s discovery requests.4 “On remand the
superior court obtained, reviewed, and made available the various discovery items” and
“invited supplemental briefing,” but Rowan failed to respond.5 We once again addressed
the CINA adjudication and affirmed, after concluding that “the superior court’s
determination that Rowan sexually abused the children or placed them at risk of sexual
abuse, is not clearly erroneous.”6
After the CINA adjudication, Rowan was charged in a separate criminal
proceeding for his sexual abuse of Aeryn, Reagan, and Agnes. A jury convicted Rowan
3
See Rowan B., Sr., 320 P.3d at 1156-57.
4
Id. at 1157-59.
5
Rowan B., Sr., 2014 WL 4057175, at *1.
6
Id.-3- 7065
of 29 counts of first degree sexual abuse of a minor and one count of incest. He was
sentenced to a composite term of 268.5 years with 107 years suspended and 161.5 years
to serve. Rowan is appealing his criminal convictions.
In April 2014 OCS petitioned to terminate Rowan’s and Risa’s parental
rights. In his trial brief Rowan requested that the superior court hold its ruling “in
abeyance” while Rowan appealed his criminal convictions, arguing that “the reversal of
the convictions could significantly change [Rowan’s] ability to participate in the case
plan.” The superior court ordered supplemental briefing to obtain legal argument
addressing Rowan’s request.
In a supplemental brief Rowan argued that a delay of the termination trial
pending his criminal appeal could affect the outcome of the proceedings if his
convictions were reversed and would not prejudice the children:
[T]he state’s evidence against [Rowan] consists of the
judgment in the criminal case. There is a pending appeal of
the conviction. The conduct in the criminal case is essentially
the same conduct that was alleged in the Child in Need of Aid
matter. A reversal of the conviction could result in the
discovery of new information regarding the allegations which
are the basis of both the Child in Need of Aid matter and the
criminal matter. The children are in a stable family
placement, a placement which is not in jeopardy if the trial
regarding [Rowan] is held in abeyance. . . . [T]he court has
the discretion to hold the trial in abeyance pending the
outcome of a significant criminal case, and must evaluate in
each case whether [to] hold[] the trial in abeyance pending
the outcome of the criminal matter.
OCS responded, asserting that Rowan’s “appeal of his criminal case has
little to do with the evidence before the court because the department is not relying solely
on his convictions of sexual abuse of a minor.” OCS explained that the superior court
had “heard direct testimony and evidence of the sexual abuse and physical abuse by
-4- 7065
[Rowan] . . . and the continued safety risks to the children.” OCS noted that a trial court
must hold a termination trial within six months of OCS petitioning to terminate parental
rights unless the court finds good cause for a continuance, “taking into consideration the
age of the child and the potential adverse effect that a delay may have on the child.”7
And OCS argued that Rowan’s “last minute request to continue the trial or to hold the
findings in abeyance for an indeterminate period of time, while he exhausts all criminal
appeals and post-conviction relief options available to him, is not in the children’s best
interest.”
The guardian ad litem (GAL) similarly argued that “the mere fact that
[Rowan] has appealed his conviction does not constitute good cause for continuing this
matter.” The GAL explained that the superior court “need not rely upon the fact of
[Rowan’s] incarceration to adjudicate the children to be children in need of aid” because
the court “heard clear and convincing evidence of the harm that [Rowan] caused and the
danger that he poses to his children.” The GAL argued that the children needed “a sense
of safety and security” and that Rowan failed to show good cause to indefinitely continue
the termination trial during the pendency of his criminal appeal.
The superior court proceeded with the termination trial in January and
February 2015. During the trial Rowan again asserted that a continuance was warranted
because OCS sought termination based on the same conduct that had been addressed in
his criminal case, and because his ability to defend against the abuse allegations was
constrained by his pending criminal appeal and “the potential Fifth Amendment
7
See AS 47.10.088(j) (“No later than six months after the date on which the
petition to terminate parental rights is filed, the court before which the petition is pending
shall hold a trial on the petition unless the court finds that good cause is shown for a
continuance. When determining whether to grant a continuance for good cause, the court
shall take into consideration the age of the child and the potential adverse effect that the
delay may have on the child.”).
-5- 7065
implications.” Rowan estimated that “a year and three quarters to two years” would be
enough time to conclude his criminal appeal.
The superior court denied the continuance request, noting that Rowan had
requested a continuance for a speculative time period, that a continuance would delay
permanency for the children, and that “[t]o delay that permanency for these children I
don’t think is in their best interests.” The court also explained that it terminated Rowan’s
parental rights based on independent evidence of sexual abuse and that it did not believe
that a reversal in Rowan’s criminal appeal would entitle him to further termination
proceedings. The court finally noted that exercising his Fifth Amendment privilege
against self-incrimination had put Rowan “in a difficult position,” but the court
ultimately concluded that “the best interests of the children are paramount, and it’s their
interest that the court has to be looking at primarily in deciding whether or not extensive
stays of a termination proceeding are warranted.”
Rowan appeals, arguing that the superior court abused its discretion by
denying his continuance request.
III. STANDARD OF REVIEW
“We review a denial of a motion to continue for ‘abuse of discretion,
determining whether a party has been deprived of a substantial right or seriously
prejudiced by the lower court’s ruling.’ ”8 “We will consider ‘the particular facts and
circumstances of each individual case to determine whether the denial was so
unreasonable or so prejudicial as to amount to an abuse of discretion.’ ”9
8
Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 289 P.3d 924, 930 (Alaska 2012) (quoting Ben M. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 204 P.3d 1013, 1018 (Alaska 2009)).
9
A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 259 (Alaska
(continued...)
-6- 7065
IV. DISCUSSION
Alaska Statute 47.10.088(j) provides that in the absence of good cause for
delay, a termination trial must commence within six months after the filing of the petition
to terminate parental rights:
No later than six months after the date on which the petition
to terminate parental rights is filed, the court before which the
petition is pending shall hold a trial on the petition unless the
court finds that good cause is shown for a continuance.
When determining whether to grant a continuance for good
cause, the court shall take into consideration the age of the
child and the potential adverse effect that the delay may have
on the child. The court shall make written findings when
granting a continuance.[10]
Rowan argues that the superior court’s denial of his continuance request
was an abuse of discretion because he “was seriously prejudiced by the denial.” Pointing
to the fundamental right “to care and custody of one’s own child,”11 Rowan asserts that
there was good cause to continue the termination trial because his parental rights were
terminated based on the same conduct addressed in his criminal case and because he was
9
(...continued)
1999) (quoting Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 104 (Alaska 1997)).
10
See also CINA Rule 18(e) (“A trial on the petition to terminate parental
rights shall be held within six months after the date on which the petition to terminate
parental rights is filed, unless the court finds that good cause is shown for a continuance.
When determining whether to grant a continuance for good cause, the court shall take
into consideration the age of the child and the potential adverse effect that the delay may
have on the child. The court shall make written findings when granting a continuance.”).
11
Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811, 831 (Alaska 2003) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257
(Alaska 2001)).
-7- 7065
unable “to f[r]eely and fully litigate the allegations of abuse.”12 But our prior decisions
on this issue do not support Rowan’s claim.
In R.F. v. S.S.,13 R.F. had been convicted of murdering his child’s mother,
and his motion for a new trial in the criminal case had been denied and was on appeal.14
After conducting a separate termination trial the superior court terminated R.F.’s parental
rights; R.F. appealed, arguing that the court “should not [have] consider[ed] terminating
his parental rights until after” a decision issued on his appeal of the denial of the motion
for a new trial.15 We disagreed, explaining that “the best interests of the child are
paramount” and that “[t]o leave a child in limbo during his formative years based upon
the slim chance that R.F. may prevail on one of his many possible post-conviction relief
measures contravenes the primary purpose of Alaska’s adoption statute: to advance the
best interests of the child.”16 We noted with approval the superior court’s conclusion that
the benefit of permanency for R.F.’s son “strongly outweighed R.F.’s interest in waiting
until after further post-conviction appeals have been heard.”17
12
In his reply brief Rowan raises an additional argument: “And, so long as
his convictions remain and he is imprisoned, he cannot fight termination because
Rowan’s convictions and imprisonment independently support termination, regardless
of whether the trial court based its findings on the fact of the abuse.” We do not address
this argument “[b]ecause we deem waived any arguments raised for the first time in a
reply brief.” Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010).
13
928 P.2d 1194 (Alaska 1996).
14
Id. at 1194-95.
15
Id. at 1195-96.
16
Id. at 1197.
17
Id.-8- 7065
Similarly, in A.A. v. State, Department of Family & Youth Services,18 we
emphasized that the child’s best interests are paramount during termination
proceedings.19 A.A. had been convicted of murder and an appellate court had reversed
his conviction.20 Because of the reversal, A.A. requested a continuance of his
termination trial until after his new murder trial.21 The superior court denied A.A.’s
continuance request and terminated his parental rights, noting that the termination
decision was not based on the murder conviction and was instead based on other
instances of A.A.’s violent behavior.22 We affirmed, explaining that “a trial court should
have the discretion to proceed to a termination trial without a final ruling on a parent’s
criminal appeal” and that “even when a court has overturned a parent’s conviction, that
reversal does not prevent termination of parental rights as long as the termination rests
on other grounds.”23
Rowan attempts to distinguish our decisions in R.F. and A.A. Rowan notes
that in R.F., the child’s medical needs created an additional need for permanency and
weighed against granting a continuance.24 And Rowan argues that his children’s
situation is different because there was evidence that they were doing well in a
18
982 P.2d 256 (Alaska 1999).
19
Id. at 260.
20
Id. at 258-59.
21
Id. at 259.
22
Id.
23
Id. at 260.
24
See R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska 1996) (“The trial court found
that [the child] has serious medical needs that can be fully addressed only if he has both
the support and stability of a permanent family.”).
-9- 7065
permanent family placement so that “delaying the termination trial would have little
impact on them.” Rowan also argues that unlike the situation in A.A., Rowan’s parental
rights were terminated based solely on conduct related to Rowan’s criminal convictions.
But Rowan’s arguments are not persuasive.
Rowan exercised his right not to testify at the adjudication or termination
proceedings. An individual “should not be penalized for invoking his Fifth Amendment
privilege.”25 But when addressing Rowan’s continuance request, the superior court had
to balance Rowan’s privilege against his children’s “interest[s] in timely resolution of
the proceedings.”26
The Alaska Statutes and our precedent establish a clear policy: The best
interests of children, including the interest in permanency as opposed to leaving children
in limbo, are paramount.27 Alaska Statute 47.10.088(j) requires a termination trial within
six months of the termination petition “unless the [superior] court finds that good cause
is shown for a continuance.” Thus, the superior court could not grant Rowan’s request
for a lengthy continuance unless the court found good cause. And the legislature has
25
Armstrong v. Tanaka, 228 P.3d 79, 84 (Alaska 2010).
26
Id. at 84-85; see also Sarah D. v. John D., 352 P.3d 419, 427 (Alaska 2015)
(“Whether a continuance was properly denied turns on the particular circumstances of
each case, but courts should ‘balance the need[] for . . . promptness with the right[] to fair
presentation of the case.’ ” (alterations in original) (quoting Sylvester v. Sylvester, 723
P.2d 1253, 1256 (Alaska 1986))).
27
See AS 47.10.005 (“The provisions of this chapter shall be liberally
construed to . . . promote the child’s welfare and the parents’ participation in the
upbringing of the child to the fullest extent consistent with the child’s best
interests . . . .”); AS 47.10.088(j) (requiring, absent good cause to the contrary, a
termination trial no later than six months after a petition to terminate parental rights is
filed); A.A., 982 P.2d at 260 (“[I]n a termination trial, the best interests of the child, not
those of the parents, are paramount.”).
-10- 7065
directed that when making a good cause finding, “the court shall take into consideration
the age of the child[ren] and the potential adverse effect that delay may have on the
child[ren].”28
The superior court properly analyzed the impact of a continuance on
Rowan’s children, finding that “[a] lengthy delay is not in the children[’s] best interests.”
The court relied on evidence that the children were “anxious to proceed with adoption”
and had already waited more than two years since their removal. And record evidence
established that Rowan’s appeal, and thus his requested continuance, would potentially
take an additional two years.
The superior court emphasized the children’s need for permanency, taking
into consideration “the potential adverse effect that the delay may have on the
child[ren],”29 and determined that their interest outweighed any prejudice Rowan
suffered from invoking his right not to testify at trial pending the appeal of his criminal
conviction. The superior court recognized the difficulty of Rowan’s position, but it
ultimately denied the continuance, concluding that granting a continuance and delaying
permanency was not in the children’s best interests.30 Finally, as OCS persuasively
notes, delaying termination trials “until a parent can testify without fear of criminal
consequences . . . would drag out the most serious CINA cases to the detriment of
children who, like Agnes, have suffered the most severe abuse at the hands of their
parents.”
28
AS 47.10.088(j).
29
Id.
30
The superior court also noted that because it had “heard independent
evidence of the sexual abuse and continued safety risks to the children . . . any appeal of
the criminal case w[ould] not likely entitle [Rowan] to further CINA proceedings.”
-11- 7065
We therefore conclude that the superior court did not abuse its discretion
when it refused to continue the termination trial.
V. CONCLUSION
For the foregoing reasons we AFFIRM the superior court.
-12- 7065