CRADDOCK v. DAVELAAR, S-12631 (Alaska 3-5-2008)

CRADDOCK v. DAVELAAR, S-12631 (Alaska 3-5-2008)

AUDREY CRADDOCK, Appellant, v. WILLIAM DAVELAAR, Appellee.

Supreme Court No. S-12631.Supreme Court of Alaska.
March 5, 2008.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Charles T. Huguelet, Judge.

Audrey Craddock, pro se, Homer, Appellant. William Davelaar, pro se, Kelso, Washington, Appellee.

Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.]

MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
The superior court awarded primary physical custody of Jenny[fn1] to her father upon his motion to modify custody. Jenny’s mother appeals, arguing that the superior court failed to consider adequately the continuity that she had established with Jenny during her years as primary custodian. She also questions the willingness of Jenny’sPage 2
father to facilitate her contact with the child. Finally, she contends that the superior court improperly based its decision on hearsay evidence. Because we conclude that the superior court did not abuse its discretion in its custody award and that any error in considering hearsay evidence was harmless, we affirm the superior court’s decision.

II. FACTS AND PROCEEDINGS
Jenny, born on April 11, 2001, is the daughter of Audrey Craddock and William Davelaar. The couple never married. On June 12, 2001, Craddock filed for custody of Jenny, and she was granted interim physical and legal custody on August 2, 2001.

In July 2002 an Office of Children’s Services (OCS) investigation reported that Craddock had failed to seek medical attention for Jenny when she had a high fever and ear infection, that Craddock had left Jenny alone with a sex offender, that Craddock had provided inadequate housing for Jenny, and that Craddock had left Jenny in a home where drug use was occurring. Craddock told OCS that she intended to move to North Carolina, so OCS recommended that she complete parenting classes there.[fn2] The superior court granted primary physical custody of Jenny to Craddock on September 11, 2002, with legal custody to be shared with Davelaar. Craddock later married and had two other children with her new husband: Max, born in October 2003, and Lauren, born in April 2005.

Craddock experienced problems with substance abuse. Diana Marvin, Craddock’s stepmother, testified that Jenny had complained to her about wanting a more normal life than she had with Craddock, and Craddock responded that this conversation must have taken place during “the months of intoxication.” In 2006 OCS investigated Craddock again, and its report documented Craddock’s alcohol abuse, the fact that shePage 3
left her children unattended, and the dangerous, uninhabitable conditions of her home, marked by piled-up trash, scattered soiled diapers, and hardened feces on the walls. Craddock had also been arrested for driving under the influence. OCS consequently recommended that Craddock complete a substance abuse assessment and an eight-to twelve-week outpatient program.

On June 27, 2006, OCS removed all three children in Craddock’s care from her home on grounds of neglect. Davelaar, who now lives in Washington state, was told that if he could arrive in Homer within twenty-four hours of the removal, Jenny would be released to him. Davelaar flew to Alaska, retrieved Jenny the next day, and flew with her back to his home in Washington. Upon her arrival there, it became clear that Jenny needed medical attention.

The day after he retrieved Jenny, Davelaar secured a temporary protective order against Craddock in Washington based on her alleged threats to kidnap Jenny and to physically harm Davelaar. This protective order was extended twice and lasted through November 2006. In July 2006 Davelaar was granted temporary custody of Jenny; Craddock’s other children were identified as children in need of aid and released to the care of their maternal grandparents.

On August 3, 2006, Davelaar filed a motion seeking full physical and legal custody of Jenny. He noted the removal of Craddock’s children from her home on grounds of neglect and pointed to Craddock’s substance abuse problems, the unsafe living conditions in her home, and her history of leaving the children without supervision. He requested that Craddock be allowed supervised visitation with Jenny upon completion of drug and alcohol treatment and a psychological evaluation. Craddock did not respond until January 2007, when she filed an opposition to Davelaar’sPage 4
proposed modification. Craddock proposed her own custody plan, which would allow her to retain primary physical custody of Jenny.

The superior court held a hearing on Davelaar’s motion to modify custody in February 2007. A number of witnesses testified, including relatives of Craddock and Davelaar, an OCS social worker, Craddock’s alcohol counselor and shelter advocate, and Craddock herself.

Dean Sundmark, a social worker from the Homer OCS office, testified to the conditions in the Craddock home in 2002 and before the children were removed in 2006. He also referred to a psychological and parenting evaluation which described Craddock’s difficulty “suspend[ing] her own needs in order to be able to take care of the children’s needs, particularly when she is unsupervised or not being held accountable.” He voiced concern that without this supervision and accountability, Craddock would neglect the needs of her children.

Diana Marvin, Craddock’s stepmother, testified that Jenny is thriving in Davelaar’s care. Marvin felt that Jenny had been at risk in Craddock’s care from early on in Jenny’s life. Marvin described the state of the children after their removal as “hungry, dirty, and scared, and sick.” Similarly, Craddock’s father-in-law noted that the children’s nutritional needs and immunizations had been neglected when they were in Craddock’s care and that Lauren had needed medical attention to address the loss of her toenails after her removal. Mr. Craddock testified that although he wished Jenny were in Alaska where she would be closer to him, he believed Jenny was happy and well cared for by people who loved her in the Davelaar home in Washington state.

Davelaar’s wife, Michelle Davelaar, testified about Jenny’s condition when she arrived in Washington after removal from Craddock’s home. Michelle said that Jenny had a cracked and rotting tooth and “flea-bite-like bumps all over her body.” ShePage 5
took Jenny to a dentist, who identified other cavities in addition to the problem tooth. Michelle further testified that she took Jenny to a dermatologist to address her skin problems, to a pediatrician to update her immunizations, and to a counselor. Michelle stated that Jenny now sees a therapist regularly and has a treatment plan. Michelle described the environment that she and Davelaar have created for Jenny in Washington as a tight-knit support system of caring people, including Jenny’s paternal grandparents.

Jeanne Parker, a Haven House advocate, and Tess Dally, a mental health clinician at the Cook Inlet Council on Alcohol and Drug Abuse, praised Craddock’s recovery efforts. And Craddock testified on her own behalf. Although she agreed that there had been a change in circumstances since the original custody order and that she had made bad decisions in the past, she testified that she believed that she could “make that right.” She expressed fear that if Davelaar were to receive physical custody of Jenny, her relationship with her daughter would be jeopardized.

After this testimony, the superior court asked Davelaar how he would foster Jenny’s relationship with Craddock if he were granted custody. Davelaar stated he would be willing to share legal custody and to give Craddock summers, spring breaks, and holidays with Jenny in addition to unsupervised phone and in-person visitation with her in Washington and Alaska. The superior court asked Davelaar whether he had discussed with Jenny’s therapist the possibility of Jenny spending summers with Craddock and school years with him. Davelaar responded that the therapist considered this situation acceptable as long as Jenny had a counseling plan in place and was carefully prepared for the transitions.

The superior court awarded primary physical custody to Davelaar and ordered that legal custody be shared between Davelaar and Craddock. It ruled that Craddock could have unsupervised in-person visits with Jenny, as well as open telephonePage 6
visits, on the condition that Craddock remain sober and that Jenny’s therapist have advance notice of the visits in order to prepare Jenny for transitions. The superior court also ruled that Jenny would spend summers and certain holidays with Craddock. The superior court explained its decision:

This child needs a stable environment. That’s the most critical thing for her at this particular age, and at this point the father is better able to give it to her. And I’m taking into consideration the neglect and the neglect based on alcohol abuse or addiction and the current stable environment that the child has had and being able to continue that, and I think that this is in the child’s best interest. . . . At some point when she gets older she’ll have more of a say but for now she needs stability. She has been injured, and the lack of stability with a diagnosis of post-traumatic stress disorder at this age is a danger of having attachment disorders and other factors as a young adult — it’s just too grave.

III. STANDARD OF REVIEW
We review trial court decisions on child custody issues for abuse of discretion.[fn3] A trial court abused its discretion if it “considered improper factors or failed to consider statutorily-mandated factors, or improperly weighted certain factors in making its determination.”[fn4] The trial court’s factual findings will be set aside only when they are clearly erroneous[fn5] and they enjoy particular deference when they are based “primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence.”[fn6] We willPage 7
conclude that a trial court’s factual finding is clearly erroneous when we are left with a definite and firm conviction that a mistake has been made after reviewing the entire record.[fn7]

IV. DISCUSSION A. The Consideration of Testimony Regarding Jenny’s Mental Health WasNot Harmful Error.
1. Davelaar’s statements

At the end of trial, the superior court asked Davelaar whether he had discussed with Jenny’s therapist the possibility of Jenny spending school years with him and summers with Craddock. Davelaar responded that the therapist considered this an acceptable arrangement as long as Jenny continued in counseling, preferably with both parents, and as long as she was carefully prepared for the transitions. Craddock asserts that these statements constituted impermissible hearsay and that the superior court erroneously relied on them in its custody decision.

Introducing the therapist’s opinions for their truth does present a hearsay problem under Rules 801 and 802 of the Alaska Rules of Evidence. But Davelaar’s statements about the therapist’s views were not a primary factor for the superior court in determining the custody and visitation arrangement that was in Jenny’s best interests. While the therapist’s opinion did factor into one of the conditions the superior court attached to Craddock’s visitation of Jenny — the requirement that Jenny’s therapist have notice of her visits with Craddock in order to prepare her for transitions — the therapist’s opinion about transition planning did not affect its ultimate decision to award primary physical custody to Davelaar. That decision was based on Craddock’s history of neglect and alcohol abuse, the superior court’s factual finding that Davelaar offered Jenny a morePage 8
stable home, and consideration of other factors listed in AS25.24.150(c). Thus, consideration of Davelaar’s statements that Jenny’s therapist recommended continuation of therapy and transition planning was not harmful error because the hearsay statements did not concern a disputed issue in the case relating to whether primary custody should be modified.

2. Michelle Davelaar’s testimony

Craddock has also argued that Michelle Davelaar’s testimony about Jenny’s mental health may have introduced impermissible hearsay statements. Michelle Davelaar testified that she had taken Jenny to counselor appointments many times and that the counselor had formulated a treatment plan for Jenny to address a diagnosis of post-traumatic stress disorder and obsessive compulsive disorder. Had a foundational objection to testimony about the counselor’s diagnosis been made on the basis that the testimony was based on a fact not in evidence — the diagnosis — the testimony could have been conditioned upon introduction of admissible evidence of the diagnosis.[fn8] But the facts that Jenny was in counseling and that her counselor had formulated a treatment plan for her are not controverted.[fn9] while it is true that the therapist’s diagnosis was not presented to the superior court in an admissible manner, the diagnosis did not form the basis for the superior court’s custody decision. The superior court explained that its decision was based on Craddock’s history of neglect and alcohol abuse, its factual finding that Davelaar offered Jenny a more stable life, and consideration of other factorsPage 9
listed in AS 25.24.150(c). Thus, to the extent Michelle Davelaar’s testimony had a foundational problem, the trial court’s consideration of it was harmless error because the award of custody was based on other, permissible grounds, which are supported by the record.

B. The Superior Court Did Not Err in Concluding AS 25.24.150(c)(5)Supported Davelaar’s Claim for Primary Physical Custody over Craddock’sClaim for Primary Physical Custody.

Craddock argues that because Jenny had lived with her for five years but had lived with Davelaar for only eight months, the continuity factor favored leaving Jenny with her. This argument fails. Alaska Statute25.20.110 allows a modification of custody “if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child.” Alaska Statute25.24.150(c) lists the factors the court must consider to determine the best interests of the child. These include:

(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; . . . (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents; [and] (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child.

The first element of AS 25.20.110 is met. Craddock agreed there had been a change in circumstances to support a modification of the custody order. And the second element of the statute is also satisfied: the record supports the superior court’s conclusion that awarding Davelaar primary physical custody of Jenny was in her best interests, particularly under AS 25.24.150(c)(5), (c)(7), and (c)(8).Page 10

Alaska Statute 25.24.150(c)(5) did not favor Craddock because it rewards continuity in a stable, satisfactory environment, and the superior court found that Davelaar offered a more stable home than Craddock. This determination was not clearly erroneous. The record is replete with evidence supporting the conclusion that the environment Craddock provided was neither stable nor satisfactory. Such evidence includes the testimony of Dean Sundmark regarding the 2002 and 2006 OCS reports and the parenting and psychological evaluation, the testimony of Craddock’s stepmother and father-in-law, and the fact that all three children were removed from Craddock’s home on grounds of neglect. The record also presents substantial evidence to support the conclusion that Davelaar is providing Jenny a stable, satisfactory environment. Such evidence includes the testimony of Michelle Davelaar and Craddock’s stepmother and father-in-law.

Furthermore, continuity is only one factor the court must consider in determining custody under AS 25.24.150(c). Evidence of child neglect and substance abuse are also listed in the statute as factors to consider[fn10] and were specifically cited by the superior court as bases for its ruling. The record demonstrates Craddock’s history of substance abuse problems. It also documents a history of child neglect starting in 2002 and culminating in the removal of Craddock’s children in 2006.

It was not clearly erroneous for the superior court to find that Davelaar offered a more stable home to Jenny than Craddock did, nor was it error to conclude that continuing that stability was in Jenny’s best interests.Page 11
C. The Superior Court Did Not Fail To Consider Davelaar’s WillingnessTo Facilitate Craddock’s Relationship with Jenny in Awarding DavelaarPrimary Physical Custody.

Craddock argues that the superior court failed to consider Davelaar’s willingness to maintain Craddock’s relationship with Jenny. She contends that her contact with Jenny was unjustifiably severed between June 28, 2006 and November 30, 2006, when Jenny was in Davelaar’s custody. But the record demonstrates that contact was severed in that period because (1) OCS removed Jenny from Craddock’s home, and (2) there was a protective order in place spanning this period that prohibited contact between the parties, including Craddock and Jenny, based on Craddock’s threats to kidnap Jenny and physically harm Davelaar.

Moreover, the superior court did consider this issue and in fact noted that it was required to do so under the statute.[fn11] The superior court explicitly asked Davelaar to what extent he would facilitate contact between Jenny and Craddock, and Davelaar responded that he would be willing to share legal custody and to give Craddock summers, spring breaks, and holidays with Jenny in addition to unsupervised phone and in-person visits with Jenny in Washington and Alaska. The superior court guaranteed Craddock’s contact with Jenny by including this visitation and joint legal custody in its order.

Because the superior court considered the willingness of Davelaar to facilitate contact between Craddock and Jenny, it did not abuse its discretion in concluding that this factor, along with other factors listed in AS 25.24.150, supported awarding Davelaar primary physical custody of Jenny.Page 12

V. CONCLUSION
We AFFIRM the superior court’s custody determination in all respects.

[fn*] Entered pursuant to Appellate Rule 214. [fn1] We have used pseudonyms for the names of all of the children in this case. [fn2] The record indicates she did not do so. [fn3] Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993). [fn4] Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982). [fn5] Id. [fn6] Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005). [fn7] Dingeman, 865 P.2d at 96. [fn8] See Alaska Rule of Evidence 104(b):

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

[fn9] Indeed, Craddock did not cross-examine Michelle on these points. [fn10] See AS 25.24.150(c)(7) (c)(8). [fn11] AS 25.24.150(c) states, “In determining the best interests of the child the court shall consider . . . (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.”