author: BRYNER, J justice.

text:
    Allen BLOOM, Jr., Appellant, v. TEKTON, INC., and State Farm Fire & Casualty Co., Appellees.
    No. S-9019.
    Supreme Court of Alaska.
    July 7, 2000.

      Michael J. Patterson, Law Office of Michael J. Patterson, Anchorage, for Appellant.
    Trena L. Heikes, Law Office of Trena L. Heikes, Anchorage, for Appellees.
    Before EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   0 P I N I 0 N

BRYNER, J justice.

I. INTRODUCTION

Allen Bloom appeals the Alaska Workers' Compensation Board's denial of his request to replace his attending physician without the consent of his employer, Tekton, Inc. Bloom maintains that the board's decision contradicts its longstanding policy of permitting injured workers to substitute new attending physicians when the worker's current physician is unable or unwilling to treat. Because the record indicates that Bloom's attending physician refused to treat Bloom, we conclude that the board erred in denying Bloom's request to substitute a new physician. Accordingly, we reverse.

II. FACTS AND PROCEEDINGS

On February 14, 1994, Allen Bloom injured his back while working as a carpenter for Tekton, Inc. Bloom felt pain in his lower back and left leg, and he sought treatment from Christopher Horton, an orthopedic surgeon. Dr. Horton told Bloom that he did not "do backs," and he referred Bloom to William Reinbold. Dr. Reinbold performed an unsue-cessful back surgery on Bloom in May 1994. Bloom then changed doctors, seeking treatment from Louis Kralick. Dr. Kralick performed a second surgery on Bloom in October 1995. This surgery was more successful than the first, and Bloom initially reported feeling much better.

After the second surgery, Bloom underwent several months of physical therapy. After the physical therapy, Dr. Kralick reported that he had no further treatment recommendations for Bloom, and the doctor instructed that Bloom could be evaluated for impairment. Tekton's insurance adjuster referred Bloom to Dr. Larry Levine, who requested some additional tests and eventually concluded that Bloom had a "10% whole-person impairment."

Bloom was then evaluated for job retraining, and was retrained as a truck driver. About nineteen months after his second surgery, Bloom began to feel back pain again. Bloom reported that in May 1997, "he was standing up and leaning back, and noted recurrent low-back pain. His knee collapsed, and he almost fell down." Bloom telephoned Dr. Kraliek's office to schedule an appointment, but Dr. Kraliek's receptionist instruct, ed Bloom that the doctor's policy was only to see patients, even former patients, who were referred to him for surgery by another doe-tor. The receptionist gave Bloom the name of another doctor, Michael Gevaert, and Bloom scheduled an appointment with him.

Dr. Gevaert examined Bloom on June 5, 1997. Dr. Gevaert noted "Mow back pain and left sciatica, status post two back surgeries. Examination reveals decreased ankle reflex and inconsistent motor and sensory loss. There are four positive Waddell signs." He recommended "a conservative approach for the radicular pain," prescribed Percocet and Cataflam, and sent Bloom to physical therapy for two weeks.

On June 23 Bloom returned for another examination. Dr. Gevaert described his impression of Bloom: "Chronic low-back pain and radicular symptoms, with five positive Waddell signs." He concluded that there were not "enough objective findings to continue any further treatment. Clinical examination does not substantiate [Bloom's] subjective symptoms. In my opinion, he should be able to drive a truck." Dr. Gevaert released Bloom from the clinic and instructed him to finish his current physical therapy program.

Bloom returned to Dr. Gevaert on July 9, 1997, for a "followup visit" and expressed that he was "extremely dissatisfied" with the doctor's latest assessment of his condition. Bloom asked for a referral to Dr. Glenn Ferris so he could get a second opinion. Dr. Gevaert refused to give Bloom a referral, but noted in his report that Bloom would contact Tekton's insurance adjuster to obtain a see-ond opinion.

Tekton refused Bloom's request to change his attending physician to Dr. Ferris. Bloom then sought an order from the Alaska Workers' Compensation Board for substitution or change of his attending physician without the employer's consent.

Bloom also tried to return to Dr. Gevaert for additional treatment. When Bloom contacted Dr. Gevaert's office, he was told that the doctor had left his practice in Anchorage and moved to Wasilla, where he worked three days per week for the Veterans Administration, and one day per week in private practice.

On September 2, 1997, Tekton filed a motion with the board to controvert all of Bloom's elaims, because Dr. Gevaert had determined that no further treatment was nee-essary. But, for reasons not apparent in the record, Tekton then reversed its position and authorized Bloom to treat with another physician. Tekton wrote Bloom a letter indicating that because Dr. Kralick would not see Bloom without a referral, and because Dr. Gevaert was "no longer available," it would authorize a change of physician for any physician but Dr. Ferris, the doctor Bloom wished to see. 'Tekton also authorized an MRI exam, but required that Bloom first select a physician acceptable to Tekton.

At the board hearing on December 17, 1997, Bloom argued that he should be allowed to substitute a new doctor because both Dr. Kralick and Dr. Gevaert were unwilling or unavailable to treat him. The board denied Bloom's request, and he appealed to the superior court. The superior court upheld the board's decision, and Bloom now appeals to this court.

III. DISCUSSION

A. Standard of Review

This court does not defer to the superior court when it acts as an intermediate court of appeal; instead, we review independently the decisions of administrative agencies. We review agency findings under a "substantial evidence" standard, asking whether those findings are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." We review questions of law under the independent judgment standard, adopting "the rule of law that is most persuasive in light of precedent, reason, and policy."

B. Did the Board Err in Refusing to Allow Bloom to Change Treating Physicians Without Tekton's Approval?

The Alaska Workers' Compensation Act gives each injured worker the right to choose an attending physician. But in order to curb potential abuse-especially doctor shopping-the Act allows an injured worker to change attending physicians only once without the consent of the employer.

In order to protect the injured worker's right to choose his attending physician, the Alaska Workers' Compensation Board has consistently interpreted the statute to allow an employee to "substitute" a new physician in circumstances where the current attending physician is either unwilling or unable to continue providing care. These "substitutions" do not count as changes in attending physicians: even a worker who has already changed doctors may choose a new attending physician without the employer's consent if the current physician becomes unwilling or unavailable to treat. Moreover, when an attending physician refers a worker to a specialist, the worker may see the referral physician without running afoul of the statute's one-change rule.

Allowing an employee to substitute attending physicians when the employee's current physician becomes unwilling or unavailable to treat is consistent with the well-settled rule that under AS 28.30.095(a) an injured worker is presumed entitled to continuing medical treatment. The substitution policy ensures that the employee's right to continuing care by a physician of his choice will not be impeded by cireumstances beyond the employee's control.

Turning to the case at hand, the ree-ord shows that Bloom exercised his option to change attending physicians when he switched from Dr. Horton to Dr. Kralick after his first back surgery failed. The un-controverted evidence shows that Dr. Kralick was Bloom's last attending physician. The record also shows that Dr. Kralick's office policy was to see patients, even former patients, only if they were referred for surgery by another doctor.

By instructing Bloom that he could not schedule an appointment without a new referral, Dr. Kralick was refusing to treat. Consequently, when Bloom learned that Dr. Kralick would not see him without a new referral, Bloom could have simply notified Tekton that he intended to select a new attending physician. There can be no dispute that, under the board's longstanding policy, Dr. Kralick's refusal to treat gave Bloom the right to select a new attending physician of his choice without Tekton's consent.

But instead of choosing a new attending physician, Bloom followed Dr. Kralick's referral and saw Dr. Gevaert. The board specifically acknowledged that "[blecause of [Dr. Kraliek's] referral, ... Dr. Gevaert was not an attending physician." Yet despite this finding the board accepted as binding Dr. Gevaert's conclusion that Bloom did not need further treatment: "[The employee asked for a profession[al]l medical opinion from Dr. Gevaert and he got it. Because of this, we find the employee was not affected by outside events which would raise any fairness questions." The board thus ruled that mere dissatisfaction with Dr. Gevaert's treatment did not entitle Bloom to choose a new attending physician without Tekton's consent.

But because Dr. Gevaert was not Bloom's attending physician, his conclusions do not determine Bloom's right to name a new attending physician. Notably, Tekton does not now contend, nor did it contend below, that Bloom requires no further treatment. To the contrary, Tekton acknowledged that Bloom required continuing care, and authorized him to see another physician acceptable to Tekton. Yet Bloom had no attending physician who was willing to treat him.

Under these circumstances, AS 25.30.095(a) gave Bloom the right to name a new attending physician. Because he had seen Dr. Gevaert by referral rather than as an attending physician, Bloom's reasons for wanting a different physician are immaterial. When a worker's attending physician becomes unwilling or unable to continue care, concerns over the possibility of doctor shopping assume secondary importance and cannot override the statute's primary purpose of allowing injured workers to choose their attending physicians-a purpose best served by allowing the worker to freely substitute a new attending physician.

IV. CONCLUSION

Because Bloom was improperly denied his right to choose a new attending physician, we REVERSE the board's decision and REMAND for further proceedings consistent with this opinion.

MATTHEWS, Chief Justice, not participating.

      . Waddell signs derive from a study done by Dr. Waddell, a Scottish physician who examined the relationship between patients' subjective complaints and objective findings. See Pierce v. Louisiana Maintenance Serv., Inc., 668 So.2d 1232, 1236 n. 1 (La.App.1996). The presence of positive "Waddell signs" may be "indicative of no-norganic pain or symptom magnification." Id.

      . See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).

      . Bockness v. Brown Jug, Inc., 980 P.2d 462, 465 (Alaska 1999) (quoting Grove v. Alaska Constr. and Erectors, 948 P.2d 454, 456 (Alaska 1997)).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . AS 23.30.095(a) provides, in pertinent part:
      When medical care is required, the injured employee may designate a licensed physician to provide all medical and related benefits. The employee may not make more than one change in the employee's choice of attending physician without the written consent of the employer. Referral to a specialist by the employee's attending physician is not considered a change in physicians.

      . See id.; see generally Liberty Northwest Ins. Corp. v. Vasquez, 147 Or.App 704, 938 P.2d 237, 238-39 (1997) (holding "that the specific purpose of the [Oregon workers' compensation statute's limit] on changing physicians was to prevent doctor shopping").

      . See Clymer v. Wilton Adjustment Servs., AWCB Decision No. 95-0068 (March 10, 1995) (Attending physician felt patient was not good candidate for surgery, and did not want to undertake new course of treatment recommended by another doctor. The board held that patient could substitute new doctor after aitending physician "refused to treat.").

      . See Stempniak v. Pioneer Alaskan Fisheries, Inc., AWCB Decision No. 95-0012 (Feb. 7, 1995) (holding that patient could substitute doctor in Homer, where he lived, for his doctor in Anchorage without this amounting to "change" in ai-tending physicians for purposes of AS 23.30.095).
      The board recently promulgated a regulation, 8 Alaska Administrative Code (AAC) 45.082 (1999), providing that if the attending physician dies, moves the physician's practice 50 miles or more from the employee, or refuses to treat the employee, the employee may substitute a physician and it will not be considered a change of attending physicians. See 8 AAC 45.082(c)(4)(B). While this regulation does not apply to the case at hand because it was promulgated after the board rendered the decision now under review, it is persuasive to the degree that it embodies the board's established policy of allowing employees to freely substitute attending physicians in circumstances where it is clear that employees are not engaged in doctor shopping, and where factors outside of the employees' control have rendered it impossible for them to receive care from their chosen physicians.

      . Other states have adopted similar approaches. See Baker v. Davison Transp., 643 So.2d 278, 282 (La.App.1994) (holding that employee was free to choose another doctor when he was not given opportunity to treat with his first choice); Morgan v. New Orleans Cold Storage, 603 So.2d 190, 192 (La.App.1992) (holding that employee was free t0 select new doctor where doctor first chosen by the employee "refused to treat him"); see also TEC v. Underwood, 33 Ark.App. 116, 802 S.W.2d 481, 484 (1991) (overruled on other grounds by Metro Temporaries v. Boyd, 314 Ark. 479, 863 S.W.2d 316 (1993)) (holding that employee was permitted to change doctors without the Arkansas Workers' Compensation Commission's approval when she moved to a new town, even though the statute required approval for all changes).

      . See AS 23.30.095(a).

      . See Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991).

      . See Clymer v. Wilton Adjustment Servs., AWCB Decision No. 95-0068 (March 10, 1995); see also Paluck v. Wise Enters., AWCB Decision No. 89-0341 (December 28, 1989); 8 AAC 45.082(c)(4)(B) (1999).

      . See AS 23.30.095(a).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark S. PEARSON, Appellant, v. Sara B. PEARSON, Appellee.
    No. S-8973.
    Supreme Court of Alaska.
    July 7, 2000.

      Mark S. Pearson, pro se, Soldotna, Appellant.
    Kristine A. Schmidt, Kenai, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   0 P I N I 0 N

PER CURIAM.

I, INTRODUCTION -

When Mark and Sara Pearson were divoreed, they agreed that Sara would have legal and primary physical custody of their two children. Nine months later, Sara moved from Soldotna to Pennsylvania, and Mark sought modification of the custody arrangement. Although Mark alleged that Sara's decision to move was prompted by her wish to deprive Mark of contact with the children, the trial court found no such motivation and ordered that Sara retain legal and physical custody of the children. Because the trial court did not err in its determination that it was in the best interests of the children to remain with Sara, we affirm.

II, FACTS AND PROCEEDINGS

Mark and Sara Pearson divorced on April 11, 1997. In granting the divorce, Superior Court Judge Harold M. Brown incorporated the couple's agreement regarding custody matters. The agreement called for Sara to have legal and primary physical custody of the parties' daughter, Jamie, and son, Jonathan. Mark was to have visitation for three weekends a month. The parties followed this custody schedule until January 1998, when Sara moved with her children to Pennsylvania to be with her fiancé, Paul Pozonsky.

After Sara's move, Mark filed a motion to modify custody, contending that Sara's move constituted a "substantial change in cireum-stances." He also requested that the court appoint a child eustody investigator. Sara opposed both motions and asked the court to revise the visitation schedule in light of her move and her inability to reach an agreement with Mark on a revised schedule. The superior court scheduled an evidentiary hearing for April 30, 1998 to review the best interests of the children and denied Mark's request for a custody investigator.

At the April 80 hearing, Mark announced his intention to move to Pennsylvania in order to live closer to his children, but he made no concrete plans. Due to the changed circumstances, the court determined that "legal custody ... is on the table." Because legal custody was at issue, Sara's counsel expressed her desire to present witnesses to rebut Mark's request to obtain custody. The court heard Sara's testimony but did not make a decision regarding custody because Sara was unable to complete her testimony. The court ordered four weeks of summer visitation for Mark and continued the hearing, which eventually took place on July 2.

Mark moved to Pennsylvania in June. Mark's presence in Pennsylvania caused a great deal of conflict. Sara was suspicious of Mark's intentions. During one visit between Mark and the children, Sara called the hotel where she believed Mark was staying. When she learned that he had checked out, she panicked and called the police, believing that Mark had abducted the children. Although Mark had simply checked into a different hotel, this incident was indicative of the fact that he did not foster a cooperative relationship with his ex-wife. Mark refused to speak with Sara and made it difficult for her to contact the children when they were visiting him.

Sara moved to dismiss the motion for modification on the ground that Mark's move to Pennsylvania made his "changed circumstances" argument moot. In response, Mark filed a motion two days before the July 2 hearing stating that he intended to move back to Alaska and would seek legal and primary physical custody. He also stated that he wanted to present the testimony of an expert witness, Dr. Monty Weinstein, to support his arguments.

At the July 2, 1998 hearing, Judge Brown determined that it was still appropriate to reexamine the question of legal and physical custody. But the court believed it would be prejudicial to Sara to do so on that day because of Mark's sudden decision to move back to Alaska and the impact that his decision would have had on the proceedings. Accordingly, the court rescheduled a custody hearing which eventually took place on August 13, 1998, after Mark's permanent return to Alaska. The court indicated that it would allow Dr. Weinstein to testify at that hearing. Despite the fact that the court had previously denied Mark's request for a custody investigator, the court explained that an investigator was not necessary because neither parent alleged that the other was unfit.

Mark did return to Alaska, and the children visited him and the extended family. The visit was not without conflict, however, because Mark and his parents made it diffi-eult for her to contact him or the children.

At the August 13 hearing, the court heard the testimony of Dr. Mark King on behalf of Sara and Dr. Weinstein on behalf of Mark. Dr. King testified that the children were doing well in the custody of their mother and that the reasons to alter the current arrangement would have to be compelling. Dr. Weinstein testified that the children had a loving relationship with their father. Although Dr. Weinstein had only observed Sara interacting with the children on one brief occasion, he concluded that she was trying to alienate the children from their father. After hearing the experts and Sara testify, the court continued the hearing until September 24. At that hearing, the remaining witnesses, Mark and members of Sara's and Mark's families, had an opportunity to testify.

The superior court issued its decision on October 2, 1998. In determining whether custody should be modified, the court considered the factors prescribed by AS 25.24.150(c). The court found that both parents were capable of acting as primary physical custodians and saw no evidence of any abuse or neglect. The court focused its analysis on the benefits to the children of remaining with their mother and both parents' ability to foster a relationship with the other parent. Because the court found that Sara had been a capable primary custodian, it concluded that a modification of custody could prove to be damaging to the children. The court also found that Sara was the parent most likely to facilitate a relationship with the other parent.

Although Mark argued that it was in the children's best interest to have regular contact with their extended family living in Alaska, Judge Brown concluded that the desirability of maintaining the children in their present stable environment outweighed the advantage of such contact with extended family.

The court did not modify legal or primary physical custody but did modify the visitation schedule to account for the change in cireum-stances.

III. STANDARD OF REVIEW

This court will reverse a lower court's decision regarding child custody modification only if the lower court abuses its discretion or if its controlling factual findings are clearly erroneous. A trial court abuses its discretion if it fails to consider factors mandated by AS 25.24.150, assigns too much weight to some of the factors, or considers improper factors. This court reviews the trial court's factual findings under the clearly erroneous standard.

IV. DISCUSSION

A. The Trial Court Did Not Evry When It Denied Mark's Request for a Child Custody Investigator.

Mark argues that the trial court erred when it refused his request for a custody investigation. But the judge has discretion whether or not to appoint a custody investigator, and Mark has failed to explain how that discretion was abused. The trial court did not order a custody investigation because neither parent alleged the other was an unfit parent. Moreover, the trial court conducted several detailed hearings to determine the best interests of the children and heard from two expert witnesses. We conclude that the trial court did not abuse its discretion when it denied Mark's request for a custody investigation.

B. The Trial Court Did Not Err in Concluding That Sara's Continuing Custody of the Children Was in Their Best Interests.

A custodial parent's decision to leave the state is a material change in cireumstances justifying a hearing to consider the best interests of the children. The trial court held such a hearing in this case and appropriately reexamined the best interests of the children. The court considered all the factors prescribed by AS 25.24.150(c) but focused its analysis on the questions of which parent was more likely to facilitate a relationship with the other parent and which environment would be more stable for the children. Mark alleges that Sara has initiated a campaign to alienate him and his family from the children by moving the children out of Alaska and argues that the children's best interests require that the court award him custody.

1. The trial court did not err in finding that Sara was not trying to alienate Mark from their children's lives.

The trial court concluded that Sara is "the parent most capable of allowing an open and loving relationship with the other." But Mark argues that the trial court erred when it concluded that Sara was not trying to alienate him from their children's lives.

To support his argument, Mark asserts that the trial court erroneously disregarded the evidence he presented regarding parental alienation syndrome. He cites a long list of cases from states and Canadian provinces sustaining decisions to admit evidence of the syndrome. But this authority is not relevant because the trial court did admit Mark's proffered evidence. Instead, we read Mark's argument as a challenge to the trial court's factual conclusion that the children did not suffer from parental alienation syndrome.

The trial court's findings regarding parental alienation syndrome are not clearly erroneous. Although the syndrome is not universally accepted, the trial court heard evidence from two experts, Dr. Weinstein and Dr. King, who both believe that it may occur. But the experts disagreed as to whether the syndrome was present in this case. The trial court analyzed both experts' testimony, concluding that Dr. King based his testimony on more objective observations and was more helpful to the court. Because "[alssessment of witness credibility is left to the discretion of the superior court," we will not overturn the trial court's conclusion that Sara was not deliberately alienating Mark and his family.

Moreover, the court concluded not only that Sara was not attempting to alienate Mark, but that she was the parent most capable of facilitating a loving relationship with the other parent. In making this finding, the trial court referred to the testimony that Mark and his farnily made it difficult for Sara to contact the children when they were with him. Mark has given us no basis for concluding that the trial court committed a clear error when it found that Sara was the parent more capable of fostering a loving relationship with the non-custodial parent.

Mark also argues that Sara did not have a legitimate reason for moving to Pennsylvania and that her improper motivation is conclusive evidence that she is attempting to alienate him from their children. But in this case the trial court explicitly found that "there is absolutely no evidence in the record that [Saral moved to Pennsylvania to deprive [Mark] of his right to visitation." Moreover, Mark's argument is not supported by our prior decisions. When the trial court conducts a custody hearing as a result of a parent's move, it should consider all the criteria in AS 25.24.150(c). But "whether there is a legitimate reason for the move" is just one factor in the best interest analysis. In light of the trial court's specific finding regarding Sara's motivation, we conclude that the trial court gave appropriate consideration to that factor.

2. The trial court did not err in concluding that the children's interest in remaiming in a stable environment favored continuing Sara's custody.

The trial court also found that because Sara had been the primary caregiver for the children throughout their lives, the goal of maintaining stability was best served by allowing Sara to retain eustody. But Mark argues that Sara removed the children from their stable environment in Alaska by moving them to Pennsylvania The trial court, on the other hand, found that the children were in a stable environment despite the move. The court concluded that the countervailing interest of being close to extended family "pales in significance when compared to the desirability of maintaining continuity for these children in their present stable environment." And our prior decisions establish that "stability is often a function of parental attitude and not of geography." Therefore, it was not error for the trial court to conclude that the children's interest in a stable, continuous environment favored their remaining with Sara.

The trial court found that the children's best interests required that they remain with Sara. Because we uphold the trial court's factual findings, and they favor Sara's retaining custody of the children, we conclude that the trial court did not abuse its discretion when it allowed Sara to retain custody.

C. Mark's Other Claims of Error Do Not Warrant Reversal.

Mark argues that the trial court exhibited gender bias toward him. He cites as proof of the alleged bias the trial court's finding that Sara's expert was more credible than his expert. But the trial court listed its reasons for finding Dr. King more credible than Dr. Weinstein: Dr. King provided a well-reasoned written report, assumed in his analysis that Mark was a capable parent rather than making judgments about a person he had not observed, and administered objective psychological tests. The record simply does not demonstrate any evidence of gender bias. Indeed, we commend the trial court for its handling of this matter. The trial court offered both parties every procedural protection in considering the custody modification, including a thorough evidentia-ry hearing, the opportunity to present the testimony of experts, and a prompt decision following the hearing. We conclude that the trial court gave careful consideration to all issues before it and that the court's willing ness to ensure that all viewpoints were heard was exemplary.

Mark also claims that the court erred in allowing Sara's fiancé, Paul Pozonsky, to sit at the counsel table during the August 13 hearing because his presence influenced the proceedings." But the only time Pozonsky spoke was to confirm his identity. Mark cites no evidence that Pozonsky's presence altered or prejudiced the proceeding. The trial court did not abuse its discretion when it allowed Sara's fiancé to sit at the counsel table for moral support in the custody proceeding.

V. CONCLUSION

The trial court did not err when it made the factual determinations underlying its "best interests of the child" analysis. The court also adequately considered the relevant factors in evaluating children's best interests. Accordingly, it was not an abuse of discretion for the court to allow Sara to retain legal and primary physical custody. We therefore AFFIRM.

      . See AS 25.24.150(c)(5)-(6).

      . See Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977). .

      . See Kessler v. Kessler, 827 P.2d 1119, 1119 (Alaska 1992) (per curiam).

      . See West v. Lawson, 951 P.2d 1200, 1203 (Alaska 1998).

      . Cf. Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976) (court has discretion to decide whether or not io appoint a guardian ad litem).

      . See House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989).

      . Mark complains that the trial court ignored evidence of domestic violence. But the court heard testimony from both Sara's and Mark's perspectives regarding the alleged incident of domestic violence, and it explicitly found that "there is no evidence of domestic violence, child abuse or child neglect" by either party. Because we defer to the trial court's evaluation of witness credibility, see Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998), we conclude that the trial court's finding was not clearly erroneous.

      . See AS 25.24.150(c)(5)-(6).

      . Monette, 958 P.2d at 436.

      . See McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995).

      . Id. (citing Lee v. Cox, 790 P.2d 1359, 1361 n. 5 (Alaska 1990).

      . Mark also argues that because Sara moved to Pennsylvania to be with a married man that the court has "rewarded [her] for doing something negative." But the fact "that a mother is living with another man in an adulterous relationship does not justify denying her custody absent any indication of adverse effects on the child." S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985). And the trial court found no evidence that Sara's relationship is having a harmful effect on the children.

      . McQuade, 901 P.2d at 426 (quoting Craig v. McBride, 639 P.2d 303, 308 (Alaska 1982) (Rabinowitz, C.J., concurring)).

      . Pozonsky is a judge in a family court in Pennsylvania.


author: STEWART, Judge.

text:
    Darnell DOLLISON, Appellant, v. STATE of Alaska, Appellee.
    No. A-7237.
    Court of Appeals of Alaska.
    July 14, 2000.

      Paul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   O P I N I 0 N

STEWART, Judge.

Darnell Dollison appeals his conviction for fourth-degree misconduct involving a controlled substance. Dollison was charged with this crime because a police officer found crack cocaine in a container that was in Dollison's pocket. Dollison argues that the cocaine should have been suppressed because the police officer's search exceeded the permissible scope of a pat-down search for weapons incident to arrest. We disagree with Dollison's argument and affirm his conviction.

Dollison also claims that the superior court erroneously rejected his proposed statutory mitigating factor that he possessed a "small quantity" of cocaine. We agree with Dollison on this claim, but Judge Sanders announced that he would not adjust Dollison's sentence even if he had found the mitigating factor. Therefore, this error was harmless. Accordingly, we affirm Dollison's sentence.

Facts and proceedings

Shortly before midnight on December 31, 1997, Anchorage Police Officer Kevin B. Mitchell saw an individual "sitting way low" in a Cadillac that had a burned out headlight and was about to pull into the street. The Cadillac drove onto the street and pulled into the driveway of a residence. Officer Mitchell pulled up beside the Cadillac because he saw that Dollison was the driver and he knew that Dollison had outstanding misdemeanor warrants. Mitchell approached Dollison, told him that he was under arrest on those warrants, and handcuffed Dollison's hands behind his back.

Officer Mitchell conducted a pat-down search for weapons. Mitchell felt a cylindrical object in Dollison's outer shirt pocket that was "immediately recognizable" as a crack pipe, a device for smoking crack cocaine. Mitchell asked Dollison if it was his crack pipe, and Dollison answered that it was. Mitchell removed the object from Dollison's shirt pocket. It was a crack pipe with residue in it and, according to Mitchell's observation, "[ilt had been heavily used." The pipe was a little bigger than a pen.

Mitchell also removed a small Tylenol bottle from Dollison's pants pocket. Mitchell thought the Tylenol container could have felt like a weapon, but was not sure what it could have been. When he removed the Tylenol container from Dollison's pocket, Mitchell concluded from the container's condition and his own work experience that the Tylenol container probably contained illegal drugs. He shook the bottle and heard that there was something inside. Later, he applied for and obtained a search warrant to open the container and discovered a rock of crack cocaine inside. The cocaine weighed .05 grams.

The grand jury indicted Dollison for fourth-degree misconduct involving a controlled substance, a class C felony. Dollison moved to suppress the evidence. The State conceded that Dollison was in custody and that his answer to Officer Mitchell's question about the crack pipe should be suppressed. Dollison argued that the pipe and the Tylenol container should also be suppressed as the fruit of an illegal search. Judge Sanders ruled that Officer Mitchell was entitled to seize the crack pipe because it felt like a crack pipe.

Dollison entered a no contest plea preserving his right to appeal the denial of his motion to suppress. Dollison was a third-felony offender and was therefore subject to a presumptive sentence of three years. Dol-lison claimed that the cocaine found in his possession ( .05 grams) was a "small quantity" for purposes of statutory mitigating factor Judge Sanders agreed that the quantity that Dollison had in his possession was "what a lay person would consider ... small," but he believed that this court's decision in Knight v. State required him to reject the proposed mitigator. Additionally, Judge Sanders stated that even if the mitigating factor applied, he would not adjust Dollison's sentence. Judge Sanders sentenced Dollison to a 5-year term with 2 years suspended.

Discussion

Was the evidence legally seized?

A law enforcement officer may con-duet a protective search for weapons incident to arrest. Under Alaska law, a search incident to an arrest without a warrant is limited in seope to a protective search for weapons, or for evidence of the crime for which the suspect was arrested and which could be concealed on the suspect's person.

Here, Officer Mitchell arrested Dolli-son on valid outstanding warrants. After restraining Dollison, Mitchell patted Dollison down for weapons and located an object that was "immediately recognizable" as a crack pipe. Mitchell had extensive experience with crack pipes, seizing "at the very least one a night." Officer Mitchell removed the crack pipe from Dollison's pocket and saw that it was heavily used.

Because Officer Mitchell identified the object in Dollison's exterior shirt pocket as a crack pipe, Officer Mitchell had probable cause to believe that Dollison was unlawfully possessing drugs. Thus, following discovery of the pipe, Officer Mitchell could arrest Dollison for possessing cocaine and could search any containers on Dollison's person that might plausibly contain evidence of that crime. Even so, Mitchell obtained a search warrant before he looked into the Tylenol container and found the small rock of cocaine. Under these facts, Officer Mitchell was clearly justified to search Dollison incident to arrest and to seize the crack pipe and the container with the crack cocaine. We agree with Judge Sanders that this evidence was legally seized.

Did the superior court apply Knight v. State correctly when it rejected Dollison's claim that he possessed a "small quantity" of cocaine?

Dollison argues that Judge Sanders erred by rejecting proposed mitigating factor (d)(14), that Dollison's offense involved a small quantity of a controlled substance because Dollison possessed only .05 grams of cocaine. As explained earlier, Judge Sanders thought that most people would consider this amount of cocaine "small", but he believed that under Knight he was required to reject the mitigator. As a proponent of a mitigating factor, Dollison had the duty to establish the mitigating factor by clear and convincing evidence. Relying on Knight, Dollison argues that Judge Sanders should have found that he had proven that the .05 grams that he possessed was a "small quantity."

In Knight, this court ruled that whether a quantity of a controlled substance is a "small quantity" for purposes of statutory mitigating factor (d)(14) is primarily a question of fact for the superior court:

question ... is primarily one of fact, not one of law. Within any class of controlled substance, what constitutes an unusually small or large quantity may vary from case to case, depending on variables such as the precise nature of the substance and the form in which it is possessed, the relative purity of the substance, its commercial value at the time of the offense, and the relative availability or scarcity of the substance in the community where the crime is committed. Variations may also occur over time: what amounted to a typical controlled substance transaction ten years [ago] might be an exceptional one today.

Here, Judge Sanders found that the commercial value of the cocaine that Dollison possessed was about ten dollars and that the quantity that Dollison possessed was in fact small. However, because Judge Sanders had seen a large number of cases where individuals possessed very small amounts of cocaine, he concluded that Dollison's case was a typical case. Because the quantity of cocaine that Dollison possessed was typical of the quantity in many other cases before Judge Sanders, he concluded that Dollison had not shown that he possessed an uncharacteristically small quantity of cocaine for purposes of mitigator (d)(14).

Alaska Statute 11.71.040(a)(1) prohibits the possession of any amount of cocaine however large or small. Under Knight, a small quantity under mitigating factor (d)(14) is "a quantity that is uncharacteristically small in comparison to the broad-middle ground covered by a typical drug case[.]" We take this opportunity to clarify Knight. The "typical drug case" referred to in Knight is a drug case where the quantity involved in the case falls in the broad-middle ground penalized by the statute when considering the nature of the substance, its form, its purity, its commercial value, and its relative availability or scarcity. The "typical drug case" does not refer to the amount that is typically prosecuted or the typical case that appears on a judge's docket.

In Dollison's case, Judge Sanders found that Dollison possessed .05 grams (less than two thousandths of an ounce) of cocaine with a commercial value of ten dollars. This appears indicative of an amount that would be consumed in a single use. The Kmight factors establish that Dollison's case involved a "small quantity" of cocaine.

However, although Dollison proved mitigating factor (d)(14), we do not remand this case for resentencing. Judge Sanders declared that he would not have adjusted Dolli-son's presumptive 3-year term even if Dolli-son had proven mitigator (d)(14). Therefore, any error in applying Knight was harmless and Dollison's sentence must be affirmed.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.71.040(a)(3)(A) (possession of cocaine).

      . See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

      . AS 12.55.125(e)(2).

      . 855 P.2d 1347 (Alaska App.1993).

      . See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977), modified on other grounds, 573 P.2d 858 (Alaska 1978), Dunn v. State, 653 P.2d 1071, 1079-80 (Alaska App.1982).

      . See Zehrung, 569 P.2d at 199-200.

      . See Snider v. State, 958 P.2d 1114, 1118 (Alaska App.1998).

      . AS 12.55.155(d)(14).

      . AS 12.55.155(B.

      . Knight, 855 P.2d at 1349-50.

      . Id. at 1349.

      . Id. at 1349-50.