text:
    2003 WY 130
    STATE of Wyoming, ex rel., DEPARTMENT OF TRANSPORTATION, Appellant (Respondent), v. Samuel LEGARDA, d/b/a Laris Auto Sales, Appellee (Petitioner).
    No. 02-191.
    Supreme Court of Wyoming.
    Oct. 15, 2003.

      Representing Appellant: Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; and Mary Loos, Assistant Attorney General.
    Representing Appellee: Robert O. Anderson of Robert 0. Anderson, P.C., Riv-erton, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] The State of Wyoming ex rel. Department of Transportation (DOT) revoked a Wyoming automobile dealer's license because the dealer violated certain statutes and regulations governing automobile sales. The Office of Administrative Hearings (OAH) upheld the revocation. On a petition for review, the district court reversed OAH, holding further regulations were necessary to specify the cireumstances that would merit a license revocation. We affirm but on different grounds than those relied upon by the district court.

ISSUES

[12] The question for our review is whether the OAH order must be set aside as arbitrary and capricious because it fails to adequately explain the basis for revocation of Laris Auto Sales license.

FACTS

[T3] Mr. Legarda, doing business as Lar-is Auto Sales (Laris), was in the used car business in Wyoming for nearly twenty years. On April 3, 2000, the Fremont County Clerk contacted the DOT compliance investigation department concerning complaints she had received from individuals who were unable to obtain titles after purchasing used vehicles from Laris. The county clerk asked DOT to look into the matter.

[14] On May 3, 2000, DOT Compliance Investigator Kenny Roylance conducted a compliance review at Laris, He found that Laris violated the following statutory provisions: Wyo. Stat. Ann. § 31-11-107(a) (Lex-isNexis 2008) requiring all records to be maintained at the principal place of business and all vehicles on the lot to be listed on the daily record; Wyo. Stat. Ann. § 81-16-1083 (LexisNexis 2008) requiring copies, of invoices, title reassignment papers, and odometer and damage statements to be provided to the purchaser and temporary license permit stubs to be forwarded to DOT; Wyo. Stat. Ann. § 31-2-104(d)(i) (LexisNexis 2001) (repealed 2008) requiring delivery of certificates of title within ten days of purchase; and Wyo. Stat. Ann. § 31-16-126(b)(iv) (Lexis-Nexis 2008) allowing a dealership to provide a full-use license plate for display on vehicles in the dealership's possession. Based upon these violations, Mr. Roylance recommended revocation of Laris' dealership license and forfeiture of its bond pursuant to Wyo. Stat. Ann. § 81-16-108(c)(i) (LexisNexis 2008) and Chapter 5, Section 4(b) of the DOT rules and regulations.

[45] By letter dated August 10, 2000, DOT provided Laris notice of its intent to institute proceedings to revoke its license and forfeit its bond. Although no such request appears in the record, Laris apparently requested a hearing, and a hearing was held before OAH on August 3, 2001. At the hearing, Laris admitted many of the failures in the documentation but testified through Mr. Legarda they were due to the actions of one employee who was fired as soon as the failures were known.

[16] Following the hearing, both parties submitted findings of fact and conclusions of law. OAH entered an order on September 24, 2001, finding DOT's compliance review indicated certain failings in Laris' paperwork constituting violations of DOT statutes and rules, including that some records were at the accountant's office and not stored on site as required, four vehicles on site were not listed on the daily record, and DOT investigators were not able to determine the exact number of vehiclés owned by Laris due to inadequate records. Based on the evidence presented at the hearing, the OAH order found only that a temporary license permit record was not available, certain title documents for a 1986 Mercury Sable were still in the dealer's possession, and numerous temporary license permit stubs were not timely forwarded to DOT. OAH also found that, when Laris was inspected just over a year later, no violations were found. Based upon these findings, OAH concluded Laris failed to provide a certificate of title to a purchaser of a vehicle within the time required pursuant to Wyo. Stat. Ann. § 31-2-104(a)(iii) (LexisNexis 2001) (repealed 2003), failed to keep and maintain at its place of business a permanent legible daily record of all vehicles as required by § 31-11-107(a) and failed to properly maintain a written record in numerical sequence of every temporary license permit issued in compliance with Chapter 5, Section 8(e) of the Wyoming DOT Vehicle Dealers Rules. Based upon these violations and DOT's discretion to revoke licenses when violations are found, OAH upheld DOT's proposed revocation of Laris' dealer license and bond forfeiture.

[T7] Laris filed a petition for review in the district court pursuant to W.R.A.P. 12.01, claiming the OAH order was unsupported by substantial evidence, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law and the facts presented. The parties filed briefs and presented oral argument, and, on July 9, 2002, the district court entered an order reversing the OAH order.

[T8] In its order, the district court quoted § 31-16-103(c) and Chapter 5 of the DOT rules and regulations, which provide respectively that DOT "may" suspend or revoke a license for specified statutory violations and such violations "may" result in forfeiture of the bond. The district court then stated in pertinent part:

[Ilt is impossible for this Court or any court to review the decision made by the Department. The regulation and statute provide no "measuring stick" by which the courts can determine if the Department even handedly applies these sections. The statute provides that the Department may suspend or revoke, yet there seems to be no guidance as to when the Department suspends rather than revokes a license. Similarly, the bond regulation provides no guidance as to when the full bond is forfeited. In other words, without further defining factors or standards the Department could decide in one case to only forfeit the bond, while in another similar ease the Department could suspend the license while leaving the bond in place, or perhaps forfeit the bond and revoke the license. In this case, there is no way for this Court to determine if action taken against the Petitioner is in fact appropriate, and any affirmance of the Department's action would simply be rubber stamped. This Court is satisfied that, in the absence of regulatory standards, W.S. § 31-16-103(c) and Chapter 5 § 5(b) of the D.O.T. regulations are too amorphous to permit judicial review of the action of the D.O.T. Consequently, any such action inherently is arbitrary and capricious. See e.g. Matter of Bessemer Mt., 856 P.2d 450 (Wyo.1993).

'The district court reversed the OAH order and "remanded for further determination to be made in the light of standards encompassing appropriate criteria and factors" for the sanctions adopted in the DOT rules and regulations.

STANDARD OF REVIEW

[19] Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 20083), which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
() Hold unlawful and set aside agen-ey action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[T 10] Our review is further governed by the following standards:

We do not afford any special deference to the district court's decision when we review a matter initiated before an administrative agency. Rather, this court reviews the case as if it came directly from the administrative agency. Our review must focus on the evidence and consider the reasonableness of the agency's exercise of judgment while determining if the agency committed any errors of law. If the agency committed any errors of law, this court must correct them.
Further, in appeals where both parties submit evidence at the administrative hearing, appellate review is limited to application of the substantial evidence test. This court is required to review the entire record in making its ultimate determination on appeal. The substantial evidence test to be applied is as follows:
"In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a seintilla of evidence." Newman [v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 91], ¶ 12[, 49 P.3d 163, ¶ 12 (Wyo.2002)] (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)).
Even when the factual findings are found to be sufficient under the substantial evidence test, ... this court may be required to apply the arbitrary and capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards.

Bryant v. State ex rel. Department of Transportation, 2002 WY 140, ¶¶ 9-11, 55 P.3d 4, ¶¶ 9-11 (Wyo.2002) (some citations omitted). To survive judicial review, the record of a contested agency action must contain such factual findings as would permit a court to follow the agency's reasoning from the evi-dentiary facts on record to its eventual legal conclusions. Newman v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, ¶ 16, 49 P.3d 163, ¶ 16 (Wyo.2002). Similarly, a contested case hearing must provide, and the record of that proceeding must document, information sufficient to the making of a reasonable decision. Absent such information, the agency decision must be set aside. Id.

DISCUSSION

[111] DOT contends the district court's order must be reversed because substantial evidence was presented to support revocation of Laris' license and forfeiture of its bond. DOT further asserts proof of Laris' violations of statutory provisions and DOT rules and regulations is all that is necessary to warrant revocation and, contrary to the district court's ruling, no "measuring stick" or additional standards were required. The statutory provision authorizing license revocation and the rule allowing bond forfeiture are not, DOT elaims, "too amorphous to permit judicial review" as the district court found. Lar-is counters DOT's claims by arguing essentially that the district court's conclusions are correct and the OAH order is arbitrary, capricious, an abuse of discretion, not in accordance with the law, and not supported by substantial evidence.

[112] We hold the OAH order must be set aside but reach that conclusion for reasons different than those relied upon by the district court. Unlike the district court, we do not conclude the statutory provision and agency rule authorizing revocation and forfeiture are too vague to permit judicial review, nor do we conclude DOT must establish standards clarifying the cireumstances when revocation is warranted. Rather, we conclude the OAH order does not contain sufficient factual findings to enable this Court to understand the basis for the hearing examiner's conclusion that Laris' violations warranted revocation of its dealership license rather than suspension or some other lesser punishment. That is, we hold the record does not contain such factual findings as would permit us to follow the agency's reasoning from the evidentiary facts on record to its eventual legal conclusions. Newman, 2002 WY 91, ¶ 16, 49 P.3d 163.

[1183] Wyo. Stat. Ann. § 16-3-110 (LexisNexis 2003) sets forth an agency's duty to support its action with sufficient factual findings:

A final decision or order adverse to a party in a contested case shall be in writing or dictated into the record. The final decision shall include findings of fact and conclusions of law separately stated. Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

We have said:

In discharging its duty under § 16-3-110, the agency must "make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based." Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission, 446 P.2d 550, 555 (Wyo.1968). This Court needs to know "why" an agency decided the way it did. When an agency does not make adequate findings of basic fact, we do not have a rational basis upon which to review its ultimate findings and conclusions.

Scott v. McTiernan, 974 P.2d 966, 969 (Wyo.1999) (citations omitted); see also Mayland v. Flitner, 2001 WY 69, ¶ 13, 28 P.3d 838, ¶ 13 (Wyo.2001). It is insufficient for an administrative ageney to state only an ultimate fact or conclusion. Each ultimate fact or conclusion must be thoroughly explained in order for a court to determine upon what basis the ultimate fact or conclusion was reached. Billings v. Wyoming Board of Outfitters and Guides, 2001 WY 81, ¶ 13, 30 P.3d 557, ¶ 13 (Wyo.2001). When an agency does not set forth the reasons for its actions-that is, when its findings are concluso-ry-this Court cannot uphold its decision. Juroszek v. City of Sheridan Board of Adjustment, 948 P.2d 1370, 1373 (Wyo.1997); Basin Electric Power Cooperative, Inc. v. Department of Revenue, State of Wyoming, 970 P.2d 841, 854 (Wyo.1998).

[T 14] -In the present case, it is clear from the findings of fact in the order that OAH found Laris violated certain DOT statutes and regulations. While we do not question the validity of those findings, we do observe their relatively minor nature. Nothing in the record indicates Laris had a history of such violations despite its many years of operation in Fremont County. While the violations may have resulted in minor inconveniences to those who purchased automobiles from Laris, no one alleged Laris was acting fraudulently or intentionally trying to take advantage of its customers. Following the compliance review, a follow-up inspection revealed no violations. Yet, DOT proposed revoking the license and forfeiting the bond, thus putting Laris out of business permanently. What is not clear from the findings, and what is not apparent anywhere in the record before us, is the reason for the decision to revoke Laris' license rather than suspend or take some other less drastic action to obtain compliance. There is quite simply nothing in the record indicating what facts supported imposition of the most severe penalty available. Under these cireumstances, the OAH order cannot stand absent further findings explaining the reasons why revocation, rather than suspension or some other lesser penalty, is warranted. Scott, 974 P.2d 966; Billings, 2001 WY 81, ¶ 13, 30 P.3d 557.

[1 15] In our review of cases arising from agency action, we have held that clear and convincing evidence is required in proceedings against a licensee involving allegations of quasi-criminal wrongdoing and potential loss of a license to engage in a business or livelihood. Billings, 2001 WY 81, ¶ 11, 30 P.3d 557; Painter v. Abels, 998 P.2d 931, 941 (Wyo.2000). That standard applied in this case. On remand by the district court, OAH must make further findings to clarify what clear and convincing evidence justified revocation of Larig' license.

The district court's order is affirmed with instructions that, when it remands the case to OAH, it do so for proceedings consistent with this opinion.

      . In its statement of the issues, Laris claims the OAH erred in allowing evidence at the administrative hearing of nolo contendre pleas entered by Mr. Legarda to criminal charges filed against him as a result of the alleged violations. Because Laris did not file a cross appeal, we decline to address the issue.

      . Section 31-16-103(c) provides:
      (c) The department may deny, suspend, revoke or refuse to renew a license issued under this act if it finds the person, applicant, vehicle dealer, salesperson, agent or Wyoming based manufacturer:
      (i) Knowingly violated any rule, regulation or statute or any federal law regulating dealers and manufacturers, or any federal vehicle safety standards applicable to dealers or Wyoming based manufacturers;
      (ii) Knowingly made a materially false statement in applying for a license, demo plates, full use plates, temporary registration permits, or dealer reassignment documents used by the applicant;
      (i) Failed to furnish or keep in force the required bond;
      (iv) Has any previous administrative or criminal actions or has lost a civil action in this state or any other state relating to the conduct of the business license or applied for during the ten (10) years preceding the date of the application;
      (v) Used or permitted the use of demo or full use plates in an unauthorized manner or for an unauthorized purpose;
      (vi) Used or permitted the use of temporary registration permits in an unauthorized manner or for an unauthorized purpose.
      Chapter 5, Section 4(b) of the DOT rules and regulations provides:
      (b) A finding by the department that the dealer or manufacturer practiced fraud; made any fraudulent representation; or violated any statute, rule, or regulation relating to the conduct of the business for which the dealer or manufacturer license is issued may result in forfeiture of the full amount of the surety bond.


source: Caselaw Access Project

author: CARPENETIL Justice. MATTHEWS, Justice,

license: Public Domain

text:
    FRANK E., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
    No. S-10707.
    Supreme Court of Alaska.
    Sept. 26, 2003.
    J. Randall Luffberry, Palmer, for Appellant.

      Michael G. Hotehkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Erica Kracker, Kracker Law Office, Palmer, Guardian Ad Litem.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETIL Justice.

I. INTRODUCTION

The superior court terminated a father's parental rights. The father argues that the court erred in (1) finding that the state had made reasonable efforts to reunify him with his children and (2) finding that termination served the best interests of his children. Because the superior court did not err in finding that the state made reasonable reunification efforts and in considering the best interests of the children, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Frank E. is the father of the three children involved in this case: daughter Beth E., born in 1995; son Frank E. Jr., born in 1997; and daughter Brianna E., born in 1999. Frank and his wife Ann E. moved to Alaska in 1997.

In November 2000 Frank and Ann were arrested for operating a methamphetamine lab, and Frank pled no contest to misconduct involving a controlled substance in the fourth degree for possession of methamphetamine. He was sentenced to four years, with nineteen months to serve.

Following the arrest, the state took custody of the children at issue in this appeal, while Frank's son from a previous marriage. Zale, went to live with his biological mother. Shortly thereafter, Beth, Frank Jr., and Brianna began living with Diane P., who is Frank's mother. Diane has already adopted Cathy P., another of Frank's children, after Frank's parental rights to her were terminated. Diane will adopt Beth, Frank Jr., and Brianna if Frank's parental rights are terminated. Shortly after Frank's incarceration the state created a case plan for him which focused on substance abuse treatment, parenting classes, and family violence classes that could only be taken after his release from incarceration. The original case plan did not include any reference to programs available at the prison at which Frank was housed, but Frank took advantage of some of the anger management classes, parenting classes, and Alcoholies Anonymous/Narcoties Anonymous meetings available at the prison.

B. Proceedings

On February 27, 2001 the state filed a petition to terminate Frank's parental rights to Beth, Frank Jr., and Brianna. Frank stipulated that the children were children in need of aid but contested the termination of his parental rights. After proceeding with part of the termination trial, Superior Court Judge Eric Smith issued an order on June 6, 2001 continuing the trial until after Frank's scheduled release from prison so that Frank would have an opportunity to resolve his problems and get his children back by completing his case plan.

Frank was scheduled to be released from prison in November 2001, but was not released because he was indicted for sexual abuse of his daughters Cathy and Beth. This made it impossible for him to comply with the case plan within the given time. Following Frank's indictment, the state revised his case plan to include more treatment options during his time in prison. Frank was convicted of sexual abuse of Cathy and attempted sexual abuse of Beth and sentenced to fourteen years, with twelve years to serve. His sentence includes ten years of probation, one condition of which is that he have no contact with persons under the age of eighteen without the written permission of his probation officer. He will be eligible for release in November 2009, at which point his children would be fourteen, twelve, and ten years old. Frank appealed his conviction on July 18, 2002; at this time the parties are still awaiting the transcript from his trial.

On July 17, 2002 the superior court terminated Frank's parental rights to Beth, Frank Jr., and Brianna. The superior court based its decision on two independent grounds for termination, AS 47.10.080(0) and 47.10.088. Frank appeals the superior court's findings regarding elements of both grounds for termination. He appeals the court's decision to proceed with termination of his parental rights prior to the resolution of his merit appeal of his conviction for sexual abuse and attempted sexual abuse. He argues that his conviction and scheduled incarceration were essential to ° termination under AS 47.10.080(0) and formed one of several bases for termination under 47.10.088. Frank also appeals the termination of his parental rights under AS 47.10.088, arguing that the superi- or court erred in finding that the state made reasonable efforts to reunify him and his children, and in its consideration of the best interests of his children.

III. STANDARD OF REVIEW

"We apply the clearly erroneous standard when reviewing the factual findings supporting the termination of a parent's right to raise his or her children." 'We determine that a finding is clearly erroneous "when a review of the entire record leaves us 'with a definite and firm conviction that the superior court has made a mistake.'" In determining whether a finding is clearly erroneous, "we view the evidence in the light most favorable to the party prevailing below."

We review whether the superior court's findings comport with the requirements of the CINA statutes and rules under the de novo standard of review. Under this standard, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

The superior court terminated Frank's parental rights under both AS 47.10.088 and AS 47.10.080(0), which provide alternate and independent bases for the termination. In order for Frank to prevail we must find that termination of his parental rights was improper under both of these independent justifications. We decline to reach the question of whether a parent's conviction can be used to terminate his or her parental rights under AS 47.10.080(0) before an appellate court has reviewed and affirmed the conviction, because we find that the superior court did not err by terminating Frank's parental rights under AS 47.10.088. We turn now to consideration of that statute.

Alaska Statute 47.10.088 sets out the procedural steps involved in a termination of parental rights. It provides in relevant part that:

(a) Exeept as provided in AS 47.10.080(0), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in AS 47.10.011; and
(B) the parent
1) has not remedied the Eonduct or conditions in the home that place the child at substantial risk of harm; or
(i) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; and
(2) by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.
(ec) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.

Frank challenges two aspects of the termination of his parental rights under AS 47.10.088: whether the state made reasonable efforts to reunite him and his children in accordance with AS 47.10.088(a)(2), and whether the superior court properly considered his children's best interests in accordance with AS 47.10.088(c).

A. The Superior Court Did Not Err in Holding that the State Met Its Duty To Make Reasonable Efforts To Reunite Frank and his Children Under AS 47.10.086.

Frank first asserts that the superior court's termination of his parental rights under AS 47.10.088(a)(2) was improper because the state failed to prove that it had complied with the requirements of AS 47.10.086(a), which establishes the state's duty to make reasonable efforts to provide Frank with services designed to reunify him with his children.

The superior court found that the requirements of AS 47.10.086 had been met because: (1) Frank's conviction for attempted sexual abuse of Beth made reunification efforts unnecessary under AS 47.10.086(c)(1), (2) the length and conditions of Frank's sentencing for the sexual assault made reunification efforts unnecessary under AS 47.10.086(c)(10), and (8) in any event, the state did make reasonable efforts to reunify Frank and his children. Frank challenges all three of these bases, any of which is a sufficient basis upon which to conclude that the state met the reasonable efforts requirement. Because we find that the state made reasonable efforts to reunify Frank and his children in accordance with AS 47.10.086(a), we decline to address Frank's claims that the superior court erred by holding that the state was exempted from its responsibility to provide such efforts by AS 47.10.086(c)(1) and AS 47.10.086(c)(10).

Frank challenges Judge Smith's finding that the state met its obligation to make reasonable efforts to reunite the family. The court found that "[even if reasonable efforts were required, the department made those efforts, at least prior to [Frank's] sexual abuse conviction." It based this conclusion on its finding that the state "prepared a case plan requiring treatment of the substance abuse and anger management issues. [Frank] was afforded access to a number of programs while he was incarcerated. In short, the department did what it could, given the constraints placed by the fact that [Frank] was incarcerated." Frank alleges that the state failed to identify services in accordance with AS 47.10.086(a)(1) and to actively offer those services in accordance with AS 47.10.086(a)(2), and that this failure made the superior court's finding that the state made reasonable efforts toward reunifying Frank and his children clearly erroneous.

The state's efforts to provide the services mandated by AS 47.10.086(a) is broken down by the parties into two periods of time. The first of these is the period between Frank's incarceration for methamphetamine possession following his November 2000 arrest and his indictment for sexual abuse, as the indictment postponed his anticipated November 2001 release from prison for the methamphetamine offense. The second period is the time between his indictment for sexual abuse and the termination of his parental rights on July 17, 2002.

Frank contends that Dr. Lindeman, a social worker with the Department of Health and Social Services, Division of Family and Youth Services (DFYS), who was responsible for fulfilling the state's duty to identify reunification services in accordance with AS 47.10.086(a)(1), made little or no effort to identify and learn about treatment options available in Frank's prison prior to Frank's indictment for sexual abuse. He argues that the superior court erred by finding that the reasonable efforts requirement had been satisfied, and that its termination of his parental rights should be reversed because of this failure. Frank next contends that the state violated AS 47.10.086(a)(2)'s requirement that it "actively offer" the parent services identified under subsection (1). Frank argues that AS 47.10.086(a)(2) "require[s] at a minimum that DFYS communicate with the parent in a meaningful way the specific services available, and inform the parent how those services will help. Also, DFYS should inform how the parent can avail himself of those services." In sum, Frank argues that the state attempted to terminate his parental rights without giving him an opportunity to remedy the conduct that caused his children to be in need of aid.

The state fails to respond effectively to Frank's argument that its original case plan was inadequate. It appears to recognize that it did not identify or actively offer any programs to Frank during his incarceration for methamphetamine possession in the form of an organized case plan aimed at reunifying Frank and his children. Indeed, the original case plan for the time in which Frank was incarcerated focused exclusively on services that were available only after his release from prison in November 2001, whereas the state attempted to terminate Frank's parental rights before his anticipated November 2001 release by filing its petition to terminate parental rights on February 27, 2001 and arguing for immediate termination at the June 2001 termination trial. (In fairness to the state, its original case plan was formulated at a time when it was assumed that Frank would be released from prison in less than two years. His subsequent indictment for sexual abuse dramatically altered that expectation.) The state argues that it fulfilled its obligation to identify and actively offer services to Frank because the prison staff publicized the programs available to Frank while he was incarcerated.

But the test of whether the state made reasonable efforts to reunify Frank and his children is not limited to this particular segment of time. Instead, we examine whether the state's reunification efforts, when looked at in their entirety, satisfy the requirements of AS 47.10.086(a).

Though the state's failure to identify and offer programs to Frank before the planned termination would generally violate the state's duty under AS 47.10.086, the failure was harmless in this case because the superi- or court continued the June 6, 2001 termination trial specifically to allow Frank an opportunity to complete his case plan. The post-release portion of the original case plan fulfilled AS 47.10.086(a)(1) and (2)'s requirement that the state identify and offer reunification services to Frank, as it called for Frank to enter inpatient substance abuse treatment, attend Alcoholics Anonymous/Narcotiecs Anonymous (AA/NA), and attend parenting classes. Contrary to Frank's suggestion, the requirement that the state offer reunification services is fulfilled by setting out the types of services that a parent should avail himself or herself of in a manner that allows the parent to utilize the services. In this case, the above services were reasonably offered to Frank because the case plan identified them in a manner that allowed Frank to attend appropriate AA/NA meetings and apply to at least two appropriate inpatient substance abuse treatment programs.

The superior court ensured that Frank would have meaningful access to these properly identified reunification services that were offered to Frank by continuing the termination trial until January 22, 2002 in order to give Frank the opportunity to complete the post-release services specified in his case plan. As the superior court stated, the continuance "will give the court concrete information regarding [Frank's] ability and desire to remedy the conditions that placed his children so badly at risk, and will give him the necessary reasonable time in which to do so." By providing a reasonable opportunity for Frank to remedy the behavior that caused his children to be in need of aid, the continuance cured the state's attempt to terminate Frank's parental rights without providing him with the reasonable efforts to reunify him and his children mandated by AS 47.10.086(a).

Finally, we examine the state's efforts to identify and offer programs to Frank after his original ease plan was rendered moot when his incarceration was extended past the originally scheduled November 2001 release date due to his prosecution for sexual abuse. Though Frank does not focus on this stage of the proceedings, several of his arguments attack the sufficiency of the state's efforts to identify and offer services aimed at reunifying him and his children. He argues that Dr. Lindeman's efforts to identify services after the state filed its petition to terminate Frank's parental rights were "perfunctory at best." The state contends that it properly identified plans available in prison when it became apparent that Frank would be imprisoned past his expected November 2001 release date.

Just as we held that the original case plan as extended by the court offered reunification services in a manner that allowed Frank to avail himself of them, we hold that the revised case plan satisfied the requirements of AS 47.10.086(a), after the original extended case plan was made irrelevant by Frank's continued incarceration. Dr. Lindeman testified to the November 2001 changes in the case plan, stating that "when it became evident that the incarceration was going to extend beyond the November time period, then a treatment plan was drafted up which was modified to reflect both while he was in incarceration and while he was out of incarceration." The inclusion of services available in prison is also seen in the revised case plan, which, in contrast to previous plans, provided that "[wlhile awaiting release from jail he will participate in any groups offered in jail in the areas of anger management, substance abuse or psychotherapy." Furthermore, though Frank argues that termination was improper because the state did not take a more active role in recommending specific services, he does not contend that he was unable to identify the services available in the specified areas, and in fact demonstrated the ability to do so by taking advantage of an anger management class during his incarceration. We therefore hold that the state's identification of specific areas of reunification services is a sufficient basis for the court's finding that "[the Department ... met its burden to prove by a preponderance of the evidence that it had made the reasonable efforts required by AS 47.10.086."

B. The Superior Court Did Not Err in Finding that Termination of Frank's Parental Rights Was in the Children's Best Interests.

Alaska Statute 47.10.088(c) mandates that "[iIn a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child." Frank contends that the superior court's finding that immediate termination of his parental rights was in the children's best interests was clearly erroneous because delaying termination until the resolution of his appeal from his conviction for sexual abuse and attempted sexual abuse is in the best interests of his children. Frank claims that his children would not suffer significant harm from the delay in permanency caused by waiting for the resolution of his criminal appeal because their placement with Diane would be unaffected. He also argues that immediate termination is not in the children's best interests because they might be harmed by the possible overturning of their adoption under Alaska Civil Rule 60(b)(5). But these possibilities are insufficient to overturn the superior court's factual finding, as we will overturn factual findings only when they are clearly erroneous.

The state points to the testimony of Dr. Lindeman, who testified that the state decided to move for termination because the "necessity to get [the children] stability and to maintain the consistency of stability was very paramount." Frank responds that Dr. Lindeman's testimony established that the children are already well-bonded with their grandmother, and that this supports his contention that little benefit is gained by freeing the children for adoption because they will maintain the current placement with his mother regardless of whether they are adopted. After hearing Dr. Lindeman's testimony, the superior court found on June 6, 2001 that "the children are quite young and . it is in their best interests to have some finality in their lives with respect to who actually will be their parent." Though the superior court did not terminate Frank's parental rights at that time, its finding that "an additional delay of seven months will not so adversely affect the children that the trial, and hence a decision on the Department's petition, cannot be continued," recognized that finality at some point was an important aspect of the children's best interests. This finding that finality was in the children's best interests was not clearly erroneous, and a review of Dr. Lindeman's testimony does not leave us " 'with a definite and firm conviction that the superior court has made a mistake," "

The superior court then applied this finding in its July 17, 2002 order terminating Frank's parental rights. The court found that termination of Frank's parental rights was proper because:

The children are living with their grandmother, who wishes to adopt them. Their father will be in jail for most of their childhood. They need the permanency promised by adoption, not the uncertainty imposed by a possible reunion with a father with significant untreated problems whom they will not see for years. It is absolutely not in their interest to have to wait those years for this matter to be resolved. They need to be able to get on with their lives; termination of [Frank's] rights and adoption by their grandmother will enable them to do so.

While this finding that immediate termination of Frank's parental rights is at least partially based on an assumption that Frank will not win his criminal appeal, it also clearly recognizes that a delay of years in providing the children with finality in their parental situation is not in their best interests. The delay and resulting harm to the children occasioned by criminal appeals that will take years is real. This finding of harm is amply supported in Dr. Lindeman's testimony regarding the importance of providing the children with stability; it is not clearly erroneous. We hold that the superior court did not err by finding that termination of Frank's parental rights was in the children's best interests.

v. CONCLUSION

Because the superior court did not err in determining that the state provided reasonable efforts aimed at reunifying the father and his children or in finding that termination of the father's parental rights was in the best interests of his children, we AFFIRM the decision of the superior court.

MATTHEWS, Justice, concurring.

MATTHEWS, Justice,

concurring.

When a parent has been sentenced to a prison term that constitutes much of the minority of the parent's children, efforts to provide social services to the parent that have as their objective reunification of the parent with the children are necessarily futile. Because such efforts cannot succeed, it is difficult to describe them as timely and reasonable, the terms used in AS 47.10.086(a). But the legislature has recognized this problem and does not require family reunification efforts when the "incarceration that the parent is scheduled to serve during the child's minority is significant considering the child's age and the child's need for an adult's care and supervision." AS 47.10.080(0)(1). Similarly, under . AS 47.10.086(c)(10) the court may determine that the reasonable efforts ordinarily required may be dispensed with under the same circumstances.

Frank is scheduled to be incarcerated for twelve years, with an additional ten years of probation during which he is not allowed contact with minors. This obviously qualifies as a significant period of his children's minority and the trial court so found. Because this finding is sustainable, the state was not required to provide reunification services to Frank and there is no need to consider whether the services that the state afforded Frank were reasonable and timely. I would affirm the judgment of the superior court on this basis.

Frank argues that it is unfair to waive the reasonable efforts requirement based on AS 47.10.086(c)(10) until his criminal appeal has been decided. In my opinion this argument lacks merit. A conviction is a judgment and as such it is final when it is entered in the superior court. Both direct and collateral consequences may be imposed based on the conviction regardless of the pendency of an appeal: "We have repeatedly held that the pendency of an appeal is irrelevant for the purposes of res judicata and collateral estop-pel. In A.A. v. State we recognized the risks of relying on a conviction pending appeal, but stated that "a trial court should have the discretion to proceed to a termination trial without a final ruling on a parent's eriminal appeal." This statement applies here.

It is of course possible that Frank's criminal conviction might be reversed on appeal. Speaking statistically, the chances are slim. According to the clerk of court, about eighty-two percent of criminal appeals were totally affirmed by the Alaska Court of Appeals over the last fiscal year. A number of cases in the opposite eighteen percent column were vacated or reversed only in part and did not result in a reversal of the conviction on the most serious charges. Further, when convictions on major charges are reversed, the charges are ordinarily retried, and the offender is often reconvicted. For those rare cases in which an offender is ultimately acquitted of major charges, Civil Rule 60(b)(5) offers the possibility of relief from a termination judgment that has been entered based on the conviction.

As this case illustrates, the appellate process is time consuming. It is now statutory policy that young children be expeditiously placed into permanent homes. If the waiver of reunification provisions contained in AS 47.10.080(0)(1) and AS 47.10.086(c)(10) are to be given effect consistent with today's expedited permanent placement policy, a final criminal conviction in the superior court should be the event that triggers a waiver rather than a decision of the court of appeals.

Because the superior court properly found that the reasonable efforts requirement did not apply because of Frank's significant incarceration, and because I agree with the opinion of the court that the superior court did not err when it found that the termination was in the best interests of the children, I agree that the termination judgment should be affirmed.

      . We use pseudonyms to protect the privacy of those involved.

      . Aun is the mother of the three children involved in this case. She has already had her parental rights terminated and is not the subject of this appeal.

      . AS 47.10.080(0) provides:
      For purposes of terminating a parent's parental rights under the standards in (c)(3) of this section, the court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under AS 47.10.011 as a result of parental conduct and that the parental rights of the incarcerated parent should be terminated if the court finds, based on clear and convincing evidence, that
      (1) the period of incarceration that the parent is scheduled to serve during the child's minority is significant considering the child's age and the child's need for an adult's care and supervision;
      (2) there is not another parent willing and able to care for the child; and
      (3) the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child's minority.
      This statute was added in 1996 "to respond to the Alaska Supreme Court's invitation in A.M. v. State of Alaska, 891 P.2d 815 (Alaska 1995) and Nada A. v. State of Alaska, 660 P.2d 436 (Alaska 1983) to create a statutory basis for making incarceration a factor that can be considered in termination proceedings concerning children in need of aid." Ch. 89, § 1, SLA 1996.

      . AS 47.10.088 generally prescribes the findings that a court must make before terminating parental rights. The court must find that a child is in need of aid under AS 47.10.011, that the parent has not remedied the situation, that the state made reasonable efforts to provide family support services so as to avoid out-of-home placement or to safely return the child home under AS 47.10.086, and that termination is in the best interests of the child.

      . G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003).

      . Id. at 650-51 (quoting S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).

      . In re J.L.F. & K.W.F., 828 P.2d 166, 170 n. 12 (Alaska 1992) overruled on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).

      . P.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1127, 1130 (Alaska 2002).

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

      . We decline to decide this issue for two reasons: First, our affirmance of termination under AS 47.10.088 makes consideration of termination under AS 47.10.080(o) moot. Second, Frank fails to adequately brief the potential constitutional issues involved in terminating parental rights based on a conviction when that conviction has not been affirmed on appeal. See, e.g., Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737 (Alaska 1999).

      . AS 47.10.086(a) provides, in relevant part, that
      the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to ... enable the safe return of the child to the family home, when appropriate ... The department's duty to make reasonable efforts under this subsection includes the duty to
      (1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
      (2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and
      (3) document the department's actions that are taken under (1) and (2) of this subsection.

      . AS 47.10.086(c) provides, in relevant part:
      The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that
      (1) the parent or guardian has subjected the child to circumstances that pose a substantial risk to the child's health or safety; these circumstances include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm{.]

      . AS 47.10.086(c) provides, in relevant part:
      The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that

      (10) the parent or guardian is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and need for care by an adult.

      . Frank also contends that the state failed to satisfy AS 47.10.086(a)(3)'s mandate to document its actions under AS 47.10.086(a)(1)-(2). But he fails to make any argument, other than that implied by his argument that the state failed to identify and offer services to him, concerning the state's alleged failure. Because "[wle will not consider arguments which are inadequately briefed on appeal," we hold that Frank has waived any consideration of the adequacy of the state's documentation of its efforts in its case plan. Martinson, 989 P.2d at 737.

      . The parties also dispute the adequacy of visitation in this case, but visitation was properly discontinued for the majority of Frank's incarceration because of credible allegations of sexual abuse against Frank and because Diane moved to California with the children.

      . Frank does not contend that reasonable efforts should have been provided to him after his convictions for sexual abuse of Cathy and at-temapted sexual abuse of Beth.

      . Alaska R. Civ. P. 60(b)(5) provides that a court may relieve a party from a final judgment when "a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Frank argues that, should his conviction be overturned on appeal, he would be able to attack the termination of his parental rights under this rule. We express no opinion as to whether a termination of parental rights can be overturned under Rule 60(b)(5).

      . G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003).

      . Frank's argument that the superior court's July 17, 2002 termination of his parental rights should be overturned because it is inconsistent with its June 6, 2001 finding that a seven-month delay was in the children's best interests is without merit. The June 6, 2001 order weighed the ongoing harm caused by a seven-month delay in determining that Frank should be given an opportunity to remedy his problems. That finding is not inconsistent with a later finding that an additional, much more significant delay, until the resolution of his criminal appeal, would be harmfal.

      . G.C., 67 P.3d at 650-51 (quoting S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).

      . Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003).

      . 982 P.2d 256, 260 (Alaska 1999).

      . We are advised that Frank's criminal appeal has not yet been briefed.

      . AS 47.05.065(5); see S.H. v. State, 42 P.3d 1119, 1125 (Alaska 2002) ('The timeliness of a permanent stable placement for the children is paramount. ...").


author: CARPENETI, Justice.

text:
    Lee LAWSON, Appellant, v. Ernest and Linda HELMER, Appellees.
    No. S-10034.
    Supreme Court of Alaska.
    Sept. 26, 2003.

      Lee Lawson, pro se, Juneau.
    No appearance for appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Lee Lawson appeals the superior court's holding that his defamation claim against Ernie and Linda Helmer fails as a matter of law and the court's award of attorney's fees to the Helmers. We hold that the superior court correctly held that the Helmers' testimony and statements to a custody investigator are immunized from Lawson's derivative civil defamation suit. We affirm the superior court's dismissal of Lawson's claims and its award of attorney's fees to the Helmers.

II. FACTS AND PROCEEDINGS

A. Facts

Lee Lawson has known Ernie and Linda Helmer for over thirty years. Lawson and Ernie Helmer were best friends. Lawson and his former girlfriend, Tammy Reynolds, lived with the Helmers while Tammy was pregnant with his daughter Ariel. The Hel-mers were present when the child was born in January 1999, and consider themselves her "de facto grandparents." In May 1999 Lawson and Reynolds separated, thereafter engaging in a protracted child custody dispute.

After Lawson's and Reynolds's separation, the relationship between Lawson and the Helmers deteriorated. Linda Helmer sought a long-term protective order against Lawson before Magistrate John W. Sivertsen, Jr. in November 1999. She testified that Lawson sexually assaulted her in 1991 or 1992 and had threatened her with violence on several occasions. Magistrate Sivertsen found by a preponderance of the evidence that Lawson committed a erime involving domestic violence against Linda Helmer and granted the protective order. The Helmers also became involved in the custody dispute before Superior Court Judge Patricia A. Collins. They testified in the custody dispute between Lawson and Reynolds and made statements to a court-appointed custody investigator who filed a report with the court. Over the course of the custody proceeding (1) the Hel-mers testified at trial that prior to Ariel's birth, Lawson planned to kidnap Kevin, his son from a relationship with a former girlfriend, Valerie Lawson; (2) Ernie Helmer stated to the custody investigator that Lawson admitted to Ernie that he obtained an "X-rated" video of Valerie during their eusto-dy dispute over Kevin, by breaking into her storage locker; (8) Linda Helmer stated her opinion that a gunshot wound sustained by Lawson during his custody dispute with Valerie was probably self-inflicted; (4) Ernie Helmer stated to the custody investigator that Lawson had a handgun of the type used to inflict the gunshot wound and had asked Ernie not to tell anyone about it; and (5) Linda Helmer testified that Lawson sexually assaulted her in 1992.

The superior court entered its findings of fact and conclusions of law and a custody decree continuing joint legal custody and granting primary physical custody of Ariel to Reynolds in December 20002. We upheld that decision.

B. Proceedings

Lawson sued the Helmers for defamation based on their statements during the custody proceedings before Judge Collins and the protective order proceedings before Magistrate Sivertsen,. He claimed that the Hel-mers' statements on the above five subjects were false and defamatory. He sought nominal and punitive damages against the Hel-mers, as well as an order forbidding them from having any contact with Ariel.

On January 11, 2001 Judge Collins ruled that Lawson's claims fail as a matter of law. She also ordered him to pay the Helmers $6,174 in attorney's fees. Lawson appeals both the dismissal of his claims and the award of attorney's fees. The Helmers declined to file a brief.

III. STANDARD OF REVIEW

We exercise our independent judgment when reviewing issues of law, " 'adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy' " The superior court's decision-that Lawson's claims fail as a matter of law due to the Helmers' witness immunity-concerns an issue of law that is subject to de novo review.

We also review constitutional questions de novo.

IV. DISCUSSION

A. The Helmers' Testimony and Statements in Prior Judicial Proceedings Are Absolutely Privileged and the Helmers Are Accordingly Immune from this Action for Defamation.

Lawson asserts that the superior court's grant of immunity to the Helmers was improper, claiming that the court used immunity as a means to avoid admitting that it had made a mistake in the custody dispute after Lawson proved that the Helmers had committed perjury in that proceeding. Lawson misunderstands the superior court's application of absolute privilege and the resulting witness immunity for the Helmers testimony and statements to the custody investigator.

As we said almost thirty years ago in Nizinski v. Currington:

The authorities are virtually unanimous that defamatory testimony by a witness in a judicial proceeding, which is pertinent to the matter under inquiry, is absolutely privileged. In such instances an action for libel or slander will not lie even though the testimony is given maliciously and with knowledge of its falsity.[]

Because testimony that is pertinent to the matter under inquiry is absolutely privileged, the witness is immune from later suit. The Restatement (SEconp) or Torts § 588 provides that:

A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which [the witness] is testifying, if it has some relation to the proceeding.[]

Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying. The widespread recognition of the privilege is predicated on the idea that parties are protected from witness misconduct by (1) their ability to reveal any deficiencies in testimony through cross-examination and (2) the threat of prosecution for perjury or other sanctions against the witness.

While Nizinski v. Currington is dispositive of this case, our recognition of the privilege and resultant immunity from suit for defamation in Zamarello v. Yale is also instructive here. In Zamarello we held that a party to a property dispute is immune from suit for slander or disparagement of title when the party files a quitclaim deed that has a "direct relation to [the] claim of an interest in the property." In recognizing the privilege for the filing of a quitelaim deed related to judicial proceedings, Zamarello effectively adopted the Restatement (Second) or Torts § 587, which provides:

A party to a private litigation or a private prosecutor or defendant in a eriminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

In sum, the Helmers testimony and related statements made during the course of the prior litigation were absolutely privileged and the superior court correctly determined that the Helmers were immune from Lawson's defamation action.

B. The Alaska and Federal Constitutions Do Not Require that the Hel-mers Be Found Liable for Defaming Lawson.

Lawson claims that the superior court's decision to grant the Helmers civil immunity when other people have been sentenced to serve time in jail and fined after being convicted of perjury violates the equal protection clauses of the state and federal constitutions. He further argues that the superior court's granting of immunity based on tort law should be reversed because it elevated tort law over the constitution. These constitutional claims are without merit.

Lawson does not state a cognizable equal protection claim, as "the basis of any equal protection claim is disparate treatment of similarly situated persons." Lawson fails to establish this fundamental aspect of an equal protection violation because his civil defamation case is so dissimilar to a criminal perjury case. The purpose of the perjury statute is primarily to protect the integrity of court proceedings, not to protect the object of the perjury, and we have never allowed a party to sue a witness for defamation. Furthermore, the fact that other citizens have been convicted of perjury in the past is irrelevant because the Helmers were not prosecuted for perjury. Lawson's equal protection claims must be denied because he fails to establish the most fundamental aspect of an equal protection claim: that he has been treated differently than a similarly situated person.

Lawson also contends that his right to relief in this case is supported by Alaska's constitutional qualification of the right to free speech. He argues that we must reverse the superior court's decision because the Alaska Constitution provides that everyone is responsible for the abuse of their right to free speech. In providing that citizens are responsible for abusing their right to free speech, the Alaska Constitution did not create an absolute right to sue others for defamation. Additionally, Alaska's perjury statute, AS 11.56.200, adequately fulfills any constitutional requirement that witnesses be held responsible for abusing their free speech rights.

C. Lawson Has Waived His Claim That the Superior Court Erred by Awarding Attorney's Fees to the Helmers.

Lawson contends that the superi- or court erred by awarding $6,174 in attorney's fees to the Helmers under AS 09.30.065(a)(1). We have previously declined to reach an issue when a party mentioned it only in passing in his statement of the case, failed to discuss it in the argument portion of his brief, and devoted one sentence to arguing the issue in his reply brief. In this case, Lawson fails to offer any support for his claim in the "statement of the issues for review" that the award of attorney's fees was unconstitutional because it places a deterrent on his right to "petition the government for a redress of grievances." Though we relax some procedural requirements for a pro se litigant where the litigant has made a good faith attempt to comply with judicial procedures, Lawson has not met this standard here. We decline to reach this issue because Lawson presented no argument at all in support of his claim.

v. CONCLUSION

Because immunity from derivative defamation suits is necessary to encourage the full and uninhibited testimony of witnesses such as the Helmers, and because Lawson was fully protected from any alleged misconduct of the Helmers by several procedural safeguards, we AFFIRM the superior court's decision dismissing the defamation suit as a matter of law. We also affirm the award of attorney's fees because Lawson waived the issue by failing to brief it adequately.

      . See generally Lawson v. Reynolds, Mem. Op. & J. No. 10053, 2002 WL 1486484 (Alaska July 10, 2002).

      . Id. at *2.

      . Id. at *10.

      . Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . Brandon v. Corrs. Corp. of Am., 28 P.3d 269, 273 (Alaska 2001) (quoting Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999)).

      . Lawson attempts to extend his defamation complaint in his appellate brief by asserting that the Helmers made "several false criminal allegations to many peers and government people." But Lawson's brief to the trial court claimed only that the Helmers had defamed him through their testimony and statements to the custody investigator. Accordingly, the superior court's decision was confined to those allegations. Because Lawson failed to properly raise the Helmers' alleged defamation outside of the child custody and protective order proceedings, we will not consider it on appeal. We note that our decision in this case does not treat as privileged any defamatory statements by the Helmers that were unconnected to either the child custody or protective order proceedings.

      . 517 P.2d 754 (Alaska 1974).

      . Id. at 756 (citation omitted).

      . Id.

      . Restatement (Second) or Torts § 588 (1977).

      . See, e.g., Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (recognizing that without inmunity "witnesses might be reluctant to come forward to testify" and that once "on the stand, his testimony might be distorted by the fear of subsequent liability," while holding that 42 U.S.C. § 1983 does not abrogate absolute witness immunity); Couch v. Schultz, 193 Mich.App. 292, 483 N.W.2d 684, 686 (1992) (stating that the privilege ensures "that participants in judicial proceedings are free to express themselves without fear of retaliation") Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848, 711 A.2d 251, 255 (1998) (recognizing that "[the purpose of this privilege is to encourage witnesses to testify and to ensure that their testimony is not altered or distorted by the fear of potential liability"); Binder v. Triangle Publ'ns, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971) (stating that immunity is extended "to witnesses to encourage their complete and unintimidated testimony in court"); Deatherage v. State, Examining Bd. of Psychology, 134 Wash.2d 131, 948 P.2d 828, 830 (1997) (recognizing that "the administration of justice requires witnesses in a legal proceeding be able to discuss their views without fear of a defamation lawsuit").

      . See, e.g., Overman v. Klein, 103 Idaho 795, 654 P.2d 888, 893 (1982) (stating that there is minimal need for civil defamation suits regarding statements made in course of judicial proceedings because witnesses are "subject to the rigors of cross-examination and the penalty of perjury"); Binder, 275 A.2d at 56 (recognizing that "the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings"); Bruce v. Byrne-Stevens & Assocs. Eng'rs., Inc., 113 Wash.2d 123, 776 P.2d 666, 667 (1989) (stating that "witness'[s] reliability is ensured by [the] oath, the hazard of cross-examination and the threat of prosecution for perjury").

      . 514 P.2d 228 (Alaska 1973).

      . Id. at 231.

      . Id. at 230-31 (citing Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405, 409 (1956)).

      . Alaska Const. art. I, § 1 provides in relevant part "that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State."

      . U.S. Const. amend. XIV, § 1 provides in relevant part that "[nlo state shall ... deny to any person within its jurisdiction the equal protection of the laws."

      . Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001).

      . Harrison v. State, 923 P.2d 107, 109 (Alaska App.1996).

      . Alaska Const. art. I, § 5 provides that "[elv-ery person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."

      . Lawson makes a related argument that the superior court's decision should be overturned in order to allow the Juneau Police Department to pursue perjury charges against the Helmers. Lawson contends that the Juneau Police Department refused to "pursue [the Helmers] for perjury" because of the superior court's grant of immunity. In order to clear up any misunderstanding, we note that the grant of immunity in this case does not protect the Helmers from prosecution for perjury.

      . Bishop v. Clark, 54 P.3d 804, 815 n. 32 (Alaska 2002).

      . Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).


author: PER CURIAM.

text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff, v. WHITE-RODGERS CORPORATION, State Industries, Inc., and SEMCO Energy, Inc. d/b/a/ ENSTAR Natural Gas Co., Defendants.
    No. S-10530.
    Supreme Court of Alaska.
    Sept. 26, 2003.
    Rod R. Sisson, Sisson & Knutson, P.C., Anchorage, for Plaintiff State Farm Fire & Casualty Co.
    Patrick D. McVey, Riddell Williams P.S., Seattle, Washington, Thomas A. Matthews and Thomas L. Hause, Matthews & Zahare, P.C., Anchorage, for Defendants White, Rodgers Corp. and State Industries, Inc.
    Madelon M. Blum, Lynch & Blum, P.C,, Anchorage, for Defendant SEMCO Energy, Inc., d/b/a ENSTAR Natural Gas Co.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

I. INTRODUCTION

In 1995 a natural gas explosion destroyed the home of William and Sally Brook. Their insurer, State Farm, paid the Brooks' property damages. Nearly six years after the explosion, State Farm sued in federal court to recover its payments from three companies whose allegedly faulty products or negligent actions caused the explosion. On certification from the federal court, we now consider whether State Farm's claim for the Brooks' property damages is covered by Alaska's two-year "tort" statute of limitations or its six-year statute of limitations "for waste or trespass upon real property." Because we have recently held that the six-year statute for "trespass" attaches broadly to any alleged interference with a possessor's property rights, we conclude that the six-year limit governs State Farm's claim.

II. FACTS AND PROCEEDINGS

This case arises on undisputed facts:

On March 28, 2001, State Farm Fire & Casualty Company ("State Farm") filed its original complaint, seeking to recover money it paid out to William and Sally Brook when their house was damaged in an explosion on March 25, 1995. State Farm alleges that the explosion was caused by a natural gas leak that State Farm traces to products manufactured, sold, or supplied by Defendants White-Rodgers Corporation, State Industries, Inc., and Semeo Energy, Inc. d/b/a Enstar Natural Gas (collectively "Defendants").
More specifically, State Farm alleges that Defendant Enstar negligently inspected, installed, and/or maintained the natural gas service regulator, which controls (i.e., reduces) the pressure of gas supplied to the residence from the higher "street pressure" of the main gas supply line. State Farm further alleges that a White-Rodgers gas control valve installed on a State Industries water heater was defective and/or negligently designed and/or manufactured, because it released gas when exposed to the "street pressure" of the main gas supply line.
Defendants moved for summary judgment arguing that State Farm's real property claims were not brought within the two-year statute of limitations of AS 09.10.070. State Farm concedes that the action was not commenced within two years, but contends that the six-year statute of limitations of AS 09.10.050 applies to its real property claims.

At the time pertinent to State Farm's claim, AS 09.10.070 provided in part: "A person may not bring an action ... for any injury to the person or rights of another not arising on contract and not specifically provided otherwise ... unless the action is commenced within two years. In contrast, AS 09.10.050 provided in part: "Unless the action is commenced within six years, a person may not bring an action ... for waste or trespass upon real property[.]" In considering the defendants' summary judgment motion, the federal district court predicted that the six-year trespass statute would likely apply to State Farm's claim. To support this conclusion, the court cited McDowell v. State, which at that time was our most recent decision interpreting these two- and six-year statutory limits for similar claims. Nevertheless, because it found no Alaska Supreme Court case directly on point, the federal court certified the matter to us for resolution under Alaska Rule of Appellate Procedure 407. We granted the federal court's request and now answer the certified question.

III. DISCUSSION

When the federal court issued its certification request, our case law left the certified question unsettled. In McDowell v. State, we had declined to read the six-year statute of limitation's reference as adopting the narrow, historical distinction between "trespass"-a direct invasion of property-and "trespass on the case"-an indirect invasion; looking instead to "the plain or common meaning of the term," we held that AS 09.10.050's six-year limit for "trespass upon real property" "is not restricted to actions that allege technical trespass, but instead includes actions that allege an interference with the possessor's property rights." But as the federal court recognized in its certification order, McDowell might not control the present case. The complaint in McDowell alleged an interference with exclusive possession caused by a direct invasion onto the plaintiff's land-spilled or leaked petroleum seeping from adjacent property; arguably, then, McDowell's broad reading of AS 09.10.050 might not be dispositive here, since State Farm's complaint alleges no direct, trespassory entry onto the Brooks' property.

After the federal court issued its certification order, however, we resolved this uncertainty in Fernandes v. Portwine, squarely extending McDowell to a nuisance claim that entailed no direct trespassory invasion. Confirming McDowell's broad reading of the six-year trespass statute, our decision in Fernandes "look[ed] to the type of injuries claimed, as opposed to the causes of action pled," concluding:

"Trespass" has both a narrow and a broad meaning. The narrow meaning refers to an unlawful entry upon the land of another. The broad meaning encompasses, as we recognized in McDowell in a statute of limitations context, any "unlawfal interference with one's person, property, or rights." The broader definition here, as in McDowell, determines the meaning of AS 09.10.050. Using this definition, the Port-wines' nuisance claims were encompassed by AS 09.10.050.

The defendants in the present case attempt to distinguish Fernandes, arguing that State Farm's claim "sounds in" products liability or tort and alleges no "unlawful" entry onto or interference with the Brooks' property. But under the reading of AS 09.10.050 we adopted in McDowell and Fernandes, these distinctions have no legal consequence. Looking to the injuries elaimed, rather than to the cause of action pled, we find that State Farm's claim for property damages alleges a substantial interference with the Brooks' right to possess and use their residence; and because this claim alleges wrongful conduct that would be actionable if proved, that is, conduct that would make the defendants legally liable for the damages, the nature of the alleged interference is "unlawful," as required by Fernandes. We thus hold Fernandes to be controlling precedent here.

IV. CONCLUSION

Given the undisputed statement of facts certified by the federal court, we conclude that the six-year "trespass" statute of limitations in AS 09.10.050 governs State Farm's claims.

      . AS 09.10.070 was amended in 1997, after the Brooks' cause of action arose, but the parties agree that the pre 1997 version of the applicable statute of limitations applies to State Farm's claims. Moreover, the parties do not contend that the 1997 amendments would have any effect here, even if they applied.

      . Though AS 09.10.050 was recently amended in other respects, its trespass provision remains substantially identical.

      . 957 P.2d 965 (Alaska 1998).

      . Alaska Rule of Appellate Procedure 407(a) authorizes this court to answer "questions of law of this state which may be determinative of the cause then pending in the certifying court ... [if] there is no controlling precedent in the decisions of the supreme court of this state."

      . The United States District Court actually posed two separate questions: whether AS 09.10.050 would apply to "any alleged negligent or other tortious injury to real property" and, more specifically, whether State Farm's claim in this case constitutes ""waste or trespass upon real property" under that provision. We choose to focus on the second, more specific question, finding it unnecessary to decide whether the six-year time limit would necessarily govern all claims for negligent and tortious injuries to real property. Cf. Toner for Toner v. Lederle Lab., Div. of Am. Cyanamid Co., 779 F.2d 1429, 1433 (9th Cir.1986) (recognizing that a court accepting certification is not bound by the certifying court's phrasing and "may reformulate the relevant state law questions as it perceives them to be, in light of the contentions of the parties").

      . 957 P.2d at 969-70.

      . Id. at 970.

      . Id. at 967, 970.

      . 56 P.3d 1, 5-6 (Alaska 2002).

      . Id. at 6 (approvingly quoting superior court's decision).

      . Id. (footnotes omitted).