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              THE SUPREME COURT OF THE STATE OF ALASKA

JENSEN D.,                                     )
                                               )   Supreme Court No. S-16774
                     Appellant,                )
                                               )   Superior Court No. 4FA-16-00020 CN
     v.                                        )
                                               )   OPINION
STATE OF ALASKA,                               )
DEPARTMENT OF HEALTH &                         )   No. 7265 – July 27, 2018
SOCIAL SERVICES, OFFICE OF                     )
CHILDREN’S SERVICES,                           )
                                               )
                     Appellee.                 )
                                               )


             Appeal from the Superior Court of the State of Alaska,
             Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.

             Appearances: 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.

             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.”


      1
               Pseudonyms have been used to protect the privacy of the parties.

                                            -2-                                     7265
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



                                           -3-                                      7265

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 sufficient factual findings to enable appellate
review.”4

       2
            Barry H. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs.,
404 P.3d 1231, 1235 (Alaska 2017).
       3
            Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State,
469 P.2d 689, 695 (Alaska 1970)).
       4
              Petrilla v. Petrilla, 305 P.3d 302, 307 (Alaska 2013) (citing Richardson v.
                                                                             (continued...)

                                           -4-                                      7265

IV.    DISCUSSION
       The Superior Court Did Not Abuse Its Discretion In Denying Jensen’s
       Request To Represent Herself.
              Jensen argues that the superior court abused its discretion in not allowing
her to represent herself because it failed to apply the governing test from McCracken v.
State.5 In McCracken we concluded that the right to self-representation on a petition for
post-conviction relief — and in civil matters generally — comes from Article I, section 21
of the Alaska Constitution, which specifies that “[t]he enumeration of rights in this
constitution shall not impair or deny others retained by the people.”6 We determined that
“[a]t the time that the Alaska Constitution was enacted and became effective, the right of
self-representation was so well established that it must be regarded as a right ‘retained by
the people.’ ”7 We held, however, that this right is “not absolute”; its exercise depends
on a three-factor test.8 First, the court should “ascertain whether a [person] is capable of
presenting his allegations in a rational and coherent manner.”9 Second, the court should
ensure that the person “understands precisely what he is giving up by declining the




       4
             (...continued)

Kohlin, 175 P.3d 43, 48 (Alaska 2008)).

       5
              518 P.2d 85 (Alaska 1974).
       6
              Id. at 91 (alteration in original) (quoting Alaska Const. Art. I § 21).
       7
              Id. (footnotes omitted).
       8
              Id. at 91-92.
       9
              Id. at 91.
                                            -5-                                         7265

assistance of counsel.”10 Finally, the court “should determine that the [person] is willing
to conduct himself with at least a modicum of courtroom decorum.”11
              In Barry H. we held that the Child in Need of Aid (CINA) Rules incorporate
the McCracken standard into CINA proceedings.12 We explained that although “[t]he
right to self-representation in CINA cases (or other civil matters) has no specific support
in the constitutions of either Alaska or the United States,”13 “the CINA rules themselves
provide that a court ‘shall accept a valid waiver of the right to counsel by any party if the
court determines that the party understands the benefits of counsel and knowingly waives
those benefits.’ ”14 CINA Rule 12(c) “effectively incorporates the McCracken standard
into CINA proceedings.”15
              In Barry H. we applied the McCracken factors to a father’s request to
represent himself in a CINA termination proceeding.16 Barry had appeared telephonically
at earlier hearings in the case and repeatedly challenged the court’s jurisdiction.17 He had
acted inappropriately during those hearings, including arguing to the point that the
superior court threatened to disconnect him from the hearing, and had broadcast



       10
              Id.

       11
              Id. at 92.

       12
              Barry H., 404 P.3d at 1235.

       13
              Id. at 1234.

       14
              Id. at 1234-35 (quoting CINA Rule 12(c)).
       15
              Id. at 1235.
       16
              Id. at 1233-35.
       17
              Id. at 1232.
                                             -6-                                      7265

confidential proceedings over the local VHF radio.18 Relying on the McCracken factors,
the superior court denied Barry’s request to represent himself because it did not believe
he was “capable of presenting his case in a manner that is rational and coherent and
consistent with the law that governs the case, primarily because he just doesn’t believe
that that law applies to him.”19
              Barry argued on appeal that the court had denied his self-representation
request because it “disagreed with Barry’s view of the law.”20 We concluded that the
ruling was based instead on Barry’s “behavior in ‘persist[ing] in his eccentric defenses
to the point where it was virtually impossible to hold any meaningful discussion of his
case and to the point where [his] behavior suggested that he would not comport himself
with the “modicum of courtroom decorum” required by McCracken.’ ”21
              In reaching our decision in Barry H., we cited favorably the court of
appeals’ opinion in Falcone v. State.22 In Falcone a criminal defendant was initially
allowed to represent himself, but the superior court appointed counsel after the defendant
“filed bizarre pretrial motions, and insisted on presenting a defense based on the Uniform
Commercial Code, admiralty jurisdiction, and his religious beliefs.”23 The court of
appeals affirmed this ruling because the record showed that the defendant had “persisted
in his eccentric defenses to the point where it was virtually impossible to hold any

       18
              Id. at 1233, 1235.
       19
              Id. at 1233.
       20
              Id. at 1235.
       21
            Id. at 1235-36 (alterations in original) (quoting Falcone v. State, 227 P.3d
469, 474 (Alaska App. 2010)).
       22
              Falcone, 227 P.3d at 474.
       23
              Id. at 473.
                                           -7-                                      7265

meaningful discussion of his case.”24 The court cautioned, however, that “[t]he question
is not whether the defendant correctly understands the law and is capable of
distinguishing a good defense from a poor one. Rather, the question is whether the
defendant is capable of presenting his or her case in an understandable way.”25
              In this case, the superior court did not explicitly refer to the McCracken
factors when deciding that Jensen could not represent herself. The court voiced its fear
that Jensen’s unfamiliarity with the CINA Rules and governing law would lead to a worse
outcome, and that she would “make a worse record” for herself and harm her case by her
lack of objectivity. As the court summarized in its later written termination decision, it
denied Jensen’s self-representation request “due to her lack of knowledge regarding the
legal process, her inability to regulate her behavior in the courtroom, and her difficulty
in having an objective view.” But Jensen’s ignorance of the legal process and her lack
of objectivity are not relevant to whether she can represent herself;26 the question is rather
whether she “is capable of presenting [her] allegations” — even if her position is
uneducated and lacking perspective — “in a rational and coherent manner.”27
              The court’s other finding, however — that Jensen lacked the ability “to
regulate her behavior in the courtroom” — is sufficient to justify denial of Jensen’s
request under McCracken’s third prong: whether the person “is willing to conduct
[herself] with at least a modicum of courtroom decorum.”28 The transcript of the



       24
              Id. at 474.

       25
              Id.

       26

              See id.
       27
              McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
       28
              Id. at 92.
                                             -8-                                       7265

termination proceeding shows that the court had concerns about Jensen’s courtroom
demeanor within the first hour of the trial’s first day; the court took an early break in
proceedings to allow Jensen to “talk with her attorney about the condition that she’s in
today . . . [b]ecause I don’t want to make a finding that she is or isn’t on something, but
she is having trouble tracking the — and sticking to just the question.” The court
continued, “And I don’t know whether it’s because she didn’t sleep well last night or
otherwise has taken something.” Jensen interjected, “It’s because I’m nervous, Your
Honor,” but the court advised the parties to “take a break and have [counsel] talk with
[Jensen] about whether she really is in a condition to be testifying today and proceeding.”
When the parties returned to the courtroom the court reiterated its concerns about keeping
Jensen focused during her testimony: “I am not convinced that you are in very good
shape to be testifying because of your inability to follow [your attorney’s] directions. . . .
If you feel that you’re not under the influence of anything and that you are okay to testify,
I will let you continue.” Trial went on after Jensen assured the court that she was “in
condition to testify today.” But the court later noted in its written decision that it “was
concerned at times whether [Jensen] was under the influence[,] as she exhibited some
similar symptoms to those described [in reports about her drug use].”
              During the next trial day, Jensen’s talking at counsel table interrupted other
witnesses’ testimony, and the court’s instructions to her imply that it had been an ongoing
problem. The court acknowledged that the proceeding was “upsetting” and “really
difficult” for Jensen to sit through quietly, but it asked that unless she could talk with her
counsel less obtrusively, she “could sit in the back . . . [and] wait and talk to him at a
break, and . . . that might be easier for [her] and for the other people.” Jensen apparently
moved to the back of the courtroom for the duration of the trial day. The next day the
court observed that “[i]t was borderline yesterday keeping her in the courtroom for a
while.”

                                             -9-                                       7265

              Our review of the “courtroom decorum” basis for denying Jensen’s self-
representation request necessarily relies to a great extent on the court’s own
contemporaneous description of what it was seeing and reacting to in the courtroom. A
more detailed record would better aid our review.29 But the record supports at least two
possibly related concerns: that Jensen was under the influence of some substance that
made it hard for her to stay on track during her testimony, and that she was unable to
refrain from interfering with the testimony of other witnesses by her conduct at counsel
table. While not every interaction leading up to the court’s responses to these concerns
is discernible from the record before us, the seriousness of the concerns is evident in the
court’s responses: taking an early break in proceedings to allow Jensen and her counsel
to assess whether she was fit to continue, and moving Jensen to the back of the courtroom
to minimize her interruptions.
              Finally, we note that the trial court took steps to minimize any prejudice its
ruling may have caused Jensen. The court invited her to make an additional statement at
the close of trial; it also informed her that it could “have a separate hearing about whether
there are, in fact, witnesses that would be helpful to [her]” but whom her attorney had
decided not to call. At the end of trial Jensen declined the opportunity to either give an
additional statement or put on more witnesses.
              We conclude that the court did not abuse its discretion in denying Jensen’s
request to represent herself.30

       29
              Compare Sagers v. Sackinger, 318 P.3d 860, 864 (Alaska 2014) (reviewing
denial of request for continuance on basis of illness and noting that the trial judge
“carefully and repeatedly described for the record his contemporaneous observations of
[the moving party’s] appearance, conduct, and demeanor; this record greatly aids our
appellate review of the issue”).
       30
              OCS also contends that the court properly denied Jensen’s request to
                                                                      (continued...)
                                           -10-                                       7265

V.        CONCLUSION
               We AFFIRM the superior court’s decision to terminate Jensen’s parental
rights.




          30
             (...continued)
represent herself because the request came at the start of the third day of trial and, if
granted, would likely have delayed the proceedings to the child’s detriment. But the
superior court did not mention timeliness as a reason for denying the motion or make any
findings about the likelihood of delay; we are therefore unable to affirm the denial on
that basis.
