Remy M. v. State, Dept. of Health & Social Services, Office of Children's Services
356 P.3d 285
| Alaska | 2015Background
- Kendra G., born 2012, is an Indian child; OCS sought termination of parental rights of mother (deceased on appeal) and father Remy M. based on substance abuse, domestic violence, criminal history, and parenting deficiencies.
- A four‑day termination trial occurred in July 2014; OCS presented extensive evidence including testimony from 16 witnesses and exhibits showing Kendra’s special needs and improved condition in foster care.
- Remy attended most of trial but asked to be absent for part of a day to attend a mental‑health/substance‑abuse assessment; the court permitted his absence after counsel said Remy would not be requesting a continuance.
- Remy’s counsel repeatedly told the court on the record that Remy did not wish to testify due to anxiety; Remy left mid‑trial and did not return before the court made findings and terminated parental rights.
- Remy did not move for a continuance, did not assert at trial that counsel had overriden his wish to testify, and did not file a post‑trial statement asserting he wanted to testify; he appealed only on procedural/due‑process and ineffective‑assistance grounds, not the substance of the termination findings.
Issues
| Issue | Plaintiff's Argument (Remy) | Defendant's Argument (State/OCS) | Held |
|---|---|---|---|
| Whether the trial court violated due process by allowing the termination trial to conclude in Remy’s absence without directly advising him of his personal right to testify and by permitting counsel to waive that right | Trial court must follow LaVigne procedures: parent has a personal right to decide whether to testify; court must make an on‑the‑record inquiry and not accept counsel’s unilateral waiver | LaVigne is a criminal‑case rule; no record shows Remy wanted to testify or that counsel usurped his choice; requiring LaVigne warnings in termination trials would be impractical | Court declined to extend LaVigne; no plain error because record shows counsel repeatedly said Remy did not wish to testify and Remy left knowing trial could conclude without him |
| Whether remand is required to develop an ineffective‑assistance record because counsel allegedly waived Remy’s presence/testimony | Remy requests remand to develop facts showing counsel improperly waived his right and to support an ineffective‑assistance claim | Remy offers no factual support that counsel acted against his wishes; he fails to meet threshold showing of deficient performance | Denied—no basis for remand or consideration of ineffective‑assistance claim on this record; Remy failed to show counsel’s performance fell below objective standard |
Key Cases Cited
- LaVigne v. State, 812 P.2d 217 (Alaska 1991) (criminal defendant’s personal right to testify cannot be usurped by counsel; trial courts should make on‑the‑record inquiry to ensure voluntary waiver)
- Kyle S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 309 P.3d 1262 (Alaska 2013) (standard for plain‑error review in CINA/termination appeals)
- Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 309 P.3d 850 (Alaska 2013) (two‑pronged test for ineffective assistance in parental‑rights terminations)
- Seth D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 175 P.3d 1222 (Alaska 2008) (parental‑rights trials may proceed in parent’s absence under certain circumstances)