text:
    2003 WY 17
    Michael Lynn McCLEAN, Petitioner, v. The STATE of Wyoming, Respondent.
    No. 02-8.
    Supreme Court of Wyoming.
    Jan. 30, 2003.

      Robert T. Moxley of Gage & Moxley, LLC, Cheyenne, WY, Representing Appellant. Argument by Mr. Moxley.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; Lynne Callaghan, Student Intern; and Jonathan Davis, Student Intern, Representing Appellee. Argument by Mr. Davis.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] This ease involves a petition surrounding the conviction of Michael Lynn McClean (Petitioner) of driving with a suspended license and driving without proper registration. Specifically, this matter is before this court pursuant to a Petition for Writ of Review and involves solely an issue of statutory construction. We affirm.

ISSUES

[¶2] Petitioner sets forth the following issues on appeal:

I.For the purposes of a criminal prosecution, must the statutory term of art, “dedicated to public use” — found in W.S. § 31 — 1—101(a)(viii)—be strictly construed to require that a “public highway” be for-
mally or prescriptively created, according to the law of real property?
II. Where the common area and driveways of a private mobile home park are neither publicly maintained nor formally dedicated to the public, did the circuit court and district court commit error of law when they found that traffic offenses occurred, respectively, on a “public highway of this state” and on “any highway?”
III. Does permissive use by some members of the public, and by law enforcement, convert a privately owned, privately maintained driveway — in a mobile home park— into a “public highway?”

Respondent State of Wyoming phrases the issue on appeal as:

Did the district court properly conclude that the definition of “highway” provided in Wyo. Stat. § 31 — 1—101 (a)(viii), is unambiguous and is clearly intended to include the road inside Ponderosa Village Mobile Home Park for the purpose of applying Wyo. Stat. §§ 31-4-101 and 31-7-134?

FACTS

[¶ 3] On August 27, 2000, Laramie County Sheriff Deputy Dave Skipper was at Ponderosa Village Mobile Home Park (Ponderosa Village) speaking with several children and handing out baseball cards. While he was there, Skipper observed Petitioner driving a black motorcycle from the south end of Ponderosa Village without the headlight illuminated. Knowing that Petitioner’s driving privileges had been suspended, Deputy Skipper stopped Petitioner. Petitioner was unable to produce his driver’s license, valid registration, or proof of insurance as requested. Petitioner, therefore, was taken into custody for driving under suspension, operating a vehicle without proper registration, and failure to maintain liability insurance. In addition, Petitioner was cited for breach of the peace stemming from his behavior during the stop.

[¶ 4] Petitioner filed motions to dismiss the charges, arguing that the roads within Ponderosa Village are not “highways.” The parties stipulated that the roads are not publicly maintained; have never been formally dedicated to public use; are used by the public; and mail delivery and other services, including patrol by law enforcement, are provided to the tenants of Ponderosa Village via use of the roads. After the circuit court denied the motions to dismiss, the parties entered a conditional plea agreement. Pursuant to the agreement, Petitioner entered pleas of guilty to the driving under suspension charge and the registration charge, reserving the right to appeal. The remaining two charges were deferred.

[¶ 5] On appeal, the district court affirmed the judgment and sentence of the circuit court, stating, in part:

It is not contested that the road in question is not publicly maintained, but it is also not contested that the road is open for public use. The road is an access route to the mobile homes in the area and is used by the postal service, law enforcement and the general public on a regular basis.
The statute [Wyo. Stat. Ann. § 31 — 1— 101(a)(viii) ] is unambiguous. The legislature clearly intended to include in the definition of highway roads like the one in question with the language “if not publicly maintained then dedicated to public use when any part is open to the use of the public for purposes of vehicular travel.” Defendant stretches the word “dedicated” to mean a formal dedication, but nothing in the statute supports that broad interpretation.

This court then granted Petitioner’s petition for writ of review on January 29, 2002.

STANDARD OF REVIEW

[¶ 6] We have long recognized that conclusions of law, such as questions regarding statutory interpretation, are to be reviewed by this court de novo. Hutchings v. Krachun, 2002 WY 98, ¶ 10, 49 P.3d 176, ¶ 10 (Wyo.2002). In Pagel v. Franscell, 2002 WY 169, ¶ 9, 67 P.3d 1226, ¶ 9 (Wyo.2002) (citing Wyoming Cmty. College Comm’n v. Casper Cmty. College Dist., 2001 WY 86, ¶¶ 16-18, 31 P.3d 1242, ¶¶ 16-18 (Wyo.2001)), we stated:

In interpreting statutes, our primary consideration is to determine the legislature’s intent. Fontaine v. Board of County Comm’rs, 4 P.3d 890, 894 (Wyo.2000); State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). Legislative intent must be ascertained initially and primarily from the words used in the statute. Allied-Signal, Inc. v. State Board of Equalization, 813 P.2d 214, 219 (Wyo.1991); Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991). When the words are clear and unambiguous, a court risks an impermissible substitution of its own views, or those of others, for the intent of the legislature if any effort is made to interpret or construe statutes on any basis other than the language invoked by the legislature. Allied-Signal, 813 P.2d at 219. Moreover, “[a]ll statutes must be construed in pari materia; and in ascertaining the meaning of a given law, all statutes relating to the same subject or hav[ing] the same general purpose must be considered and construed in harmony.” Fontaine, 4 P.3d at 894 (citing State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d at 735).
Therefore, in performing our review, we look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Olheiser v. State ex rel. Worker’s Compensation Div., 866 P.2d 768, 770 (Wyo.1994) (citing Parker Land & Cattle Company v. Game & Fish Comm’n, 845 P.2d 1040, 1042-43 (Wyo.1993)). A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle, at 1043. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. We have said that divergent opinions among parties as to the meaning of a statute may be evidence of ambiguity. Basin Electric Power Co-op. v. State Bd. of Control, 578 P.2d 557, 561 (Wyo.1978). However, the fact that opinions may differ as to a statute’s meaning is not conclusive of ambiguity. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Allied-Signal, 813 P.2d at 219.

DISCUSSION

[¶ 7] Petitioner asserts that the district court erred by interpreting the term “highway” as embracing the common area of a mobile home park and that the district court’s decision was without support in logic or precedent. Petitioner cites Amrein v. State, 836 P.2d 862, 864-65 (Wyo.1992); Story v. State, 755 P.2d 228, 231 (Wyo.1988); Meerscheidt v. State, 931 P.2d 220, 224 (Wyo.1997); and Haines v. Territory, 3 Wyo. 167, 13 P. 8 (1877), for the proposition that if it is possible to reasonably construe the statutory definition of “highway” to exclude a privately-owned mobile home park, this court is bound to do so as a matter of law. Further, Petitioner posits that the terms “dedicated” and “highway” are legal terms of art taken from property law and must be interpreted giving them their ordinary and accepted legal meaning.

[¶ 8] Petitioner argues that a “dedicated” public highway can be created only by formal action, which is absent in this case. In particular, Petitioner protests that under the plain and ordinary meaning of the language used, a “public highway” can only be established if it is 1) a publicly maintained roadway, or 2) the roadway is formally dedicated by being officially platted and recorded and open for use by the public for purposes of vehicular travel. Petitioner emphasizes his view that a roadway must be both formally dedicated and open to public use before it can be deemed a “public highway.”

[¶ 9] Conversely, the State emphasizes that the words “dedicated to the public use” must be given their ordinary, obvious, and common meaning within the public’s ken and general expectations regarding the obligations attending the operation of motor vehicles. Thus, citing Merriam Webster’s New Collegiate Dictionary (1979), the State asserts that the word “dedicate” as used with the applicable Wyoming statutes should be construed to mean “set apart to a definite use.” Moreover, the State claims that the legislature, in adopting the applicable statutes, would not have required the public to resort to a legal definition of the term “dedicate” when assessing the obligations associated with the operation of motor vehicles.

[¶ 10] The ultimate determination of this ease, therefore, turns on the definition of the word “highway” and, most particularly, whether the subject roadway within Pondero-sa Village was a highway “dedicated to public use.” The term “highway” is defined in two separate statutes, Wyo. Stat. Ann. § 31 — 1— 101(a)(viii) and Wyo. Stat. Ann. § 31-5-102(a)(xlix), respectively, as follows:

“Highway” means the entire width between the boundary lines of every way publicly maintained or if not publicly maintained, dedicated to public use when any part is open to the use of the public for purposes of vehicular travel. “Street or highway” means the entire width between the boundary lines of every way publicly maintained or if not publicly maintained, dedicated to public use when any part thereof is open to the use of the public for purposes of vehicular travel [.]

(Emphasis added.)

[¶ 11] Considering the statutory definitions of “highway” set forth above, we find no ambiguity. Upon simple reading of these definitions and application of the plain and ordinary meaning of those words, we clearly discern the legislature’s intent that the term “highway” include a road that is either 1) publicly maintained, or 2) dedicated for public use in such a manner that any part is open for use by the public for purposes of vehicular travel. We further determine that in a situation where a road is not publicly maintained, it is not required that the road be either formally statutorily dedicated, as asserted by Petitioner, or dedicated in common law as allowed under established Wyoming case law for the road to be deemed a “highway.” Rather, in such an instance, the proper interpretation of the legislature’s intent is that the road merely be dedicated for public use through the opening of any part of it for use by the public for purposes of vehicular travel.

[¶ 12] Here, the facts as stipulated by the parties, establish 1) the roadways within Ponderosa Village are not closed to the public, 2) members of the public can drive into and around Ponderosa Village, and 3) mail delivery and other services, including patrol by law enforcement, are provided to the tenants of Ponderosa Village via these roadways. Further, there are no signs or other indications that the roads in Ponderosa Village are private. Hence, the intention to allow the public to use those roads for vehicular travel within Ponderosa Village has been clearly established. In addition, the public has exercised its ability to use these roads by traveling on them in their vehicles.

[¶ 13] We recognize that the owner of Ponderosa Village, Mr. Lemmons, maintains in his affidavit:

1. The driveway within Ponderosa Village, connected to a roadway within Ponderosa Village (“Gordon Road”), wherein Petitioner was stopped is not a public thoroughfare;
2. This drive is solely for the use of tenants which he could close at any time;
3. The roadways within Ponderosa Park are not open to the public for purposes of vehicular travel and are for the purposes of moving mobile homes, tenant access, and for the use of legitimate invited guests, and persons who have business within Ponderosa Village;
4. He has contemplated putting up signs which give notice of the private nature of the roads within Ponderosa Park;
5. He regards anyone who is not a tenant and who drives on these roads without an invitation from a tenant as a trespasser; and
6. He has enlisted the assistance of law enforcement to remove trespassers.

These assertions, however, do not abrogate the fact that the roads within Ponderosa Village have been opened to the public for vehicular travel as contemplated by the statutory definition of “highway.”

[¶ 14] Simply put, although Mr. Lem-mons’ statements are expressed in an apparent attempt to vitiate the established fact that the roads within Ponderosa Village have been used by the public for vehicular travel, these statements are ineffective. Mr. Lem-mons’ statements that the driveway in question is not a public thoroughfare is countered by his own admission that this driveway is connected to Gordon Road, which has been formally statutorily dedicated for public use since 1923. While Mr. Lemmons asserts his belief that he could close the driveway at any time, he has contemplated putting up signs giving notice of the private nature of the roads within Ponderosa Village, and he regards anyone who is not a tenant and who drives on these roads without an invitation from a tenant as a trespasser, this does not erase the well established fact that these roadways are open to the public for vehicular use.

[¶ 15] Petitioner also argues that Wyoming case law demands that this court provide Petitioner lenity as a criminal defendant in rendering its interpretation of the statutes at issue. However, it is clear that this case law precedent is only applied if the subject statute is deemed to be ambiguous. As we find no ambiguity in the statutes at bar, the case law authority cited by Petitioner is inapplicable.

CONCLUSION

[¶ 16] Given those reasons set forth above, we affirm the order entered by the district court affirming the judgment and sentence of the circuit court finding Petitioner guilty of driving with a suspended license and driving without proper registration.

      . Wyo. Stat. Ann. § 31-4-101 provides:
      (a) No person shall knowingly operate, nor shall an owner knowingly permit to be operated, upon any highway any vehicle:
      (i) Unless a valid certificate of title or nontransferable certificate under W.S. 31-2-102(a)(iii), certificate of registration and license plates or temporary permits have been
      issued for the vehicle except as otherwise provided by this act[.]
      (Emphasis added.) Wyo. Stat. Ann. § 31-7-134 states:
      (a) No person shall drive a motor vehicle on any public highway in this state at a time when his driver’s license, from this or any other jurisdiction, or nonresident operating privileges are cancelled, suspended or revoked under this act or any other law.
      (Emphasis added.)

      . As noted above, it is established in this case via stipulation of the parties that the roads within Ponderosa Village have never been publicly maintained.

      . We note that contrary to the position argued by Petitioner that dedication of a roadway mandates solely the statutorily defined formal action of officially platting and recording such roadway, this court has previously stated:
      [A] dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future. When lots are being subdivided or streets are being defined, land may be dedicated for public use either through the statutory procedures for dedication or under common law.

        River Properties Partnership v. Willoughby, 944 P.2d 1145, 1148 (Wyo.1997) (citations omitted and emphasis added). In addition, this court has recognized that:

        A common-law dedication requires an intention to dedicate expressed in some form, and an acceptance of the dedication by the proper public authorities, or by general public -user. It is distinguishable from a statutory dedication, which is in the nature of a grant, and from prescription which is based on a long period of use. Generally a common-law dedication rests upon the doctrine of estoppel. Statutory dedication generally vests the legal title to the grounds set apart for public purposes in the municipal corporation, while the common-law method leaves the legal title in the original owner.

        Town of Moorcroft v. Lang, 119 P.2d 1180, 1183 (Wyo.1989) (citations omitted and emphasis added).

      . Arguably, Mr. Lemmons or any previous owner of Ponderosa Village may have been able to take advantage of Wyo. Stat. Ann. § 18-5-306(a)(vii), dealing with submission of subdivision permits at the county level, in attempting to insure the private nature of the roadways contained within Ponderosa Village not already statutorily dedicated for public use. This statute provides, in applicable part:
      If, however, the subdivider proposes to make any streets, alleys or roadways private, then the subdivider shall submit to the board properly acknowledged written certification that certain streets, alleys or roadways within the subdivision shall remain private and the board shall be under no obligation to repair, maintain or accept any dedication of such roads to the public use.
      However, tire record on appeal is devoid of any information as to whether Mr. Lemmons or any other owner would have had such an opportunity under the circumstances.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    A.J., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
    No. S-10156.
    Supreme Court of Alaska.
    Jan. 17, 2003.
    Robert S. Noreen, Law Office of Robert S. Noreen, Fairbanks, for Appellant.
    D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

The State of Alaska’s Division of Family and Youth Services (DFYS) has been involved with Ann Jackson and her daughters since 1987 due to Ann’s chronic substance abuse problem. DFYS petitioned to terminate Ann’s parental rights to her two youngest daughters, Faye and Amelia, in July 2000. Because there was sufficient evidence that Ann’s substance abuse justified termination under Alaska law, we affirm the superior court’s termination of Ann’s parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

Ann Jackson has six daughters; the youngest three all have the same father, Jefferson Simpson. The three oldest daughters are adults and live on their own. The fourth child, Janet, was seventeen at the time of the termination proceeding and was not included in the termination proceeding because she refused any placement away from her mother. The termination proceeding involved the two youngest daughters: Faye Jackson and Amelia Simpson.

The Division of Family and Youth Services became involved with the custody of the daughters for the first time in 1987, prior to the birth of Amelia. At that time DFYS took emergency custody of Sylvia an older daughter and Janet and Faye when Ann was passed out and could not care for the children. After Ann completed a substance abuse treatment program, the girls were returned to her, and DFYS allowed its temporary custody to lapse. Ann again went through outpatient substance abuse treatment after a charge of driving while intoxicated in 1987.

In July of 1988 Ann took Sylvia to Dr. Marvin E. Bergeson to have Sylvia examined for possible sexual abuse by Jefferson.' Sylvia had reported to Ann that Jefferson had touched her while she was sleeping. Dr. Bergeson found no physical evidence of abuse but found the patient history to be suspicious and advised Ann that there could be sexual abuse absent physical evidence. Ann allowed Jefferson to continue living in the house after this incident with Sylvia.

Ann took Sylvia back to Dr. Bergeson for another examination of possible sexual abuse by Jefferson in April of 1990 after Sylvia reported that Jefferson came into her room while she was sleeping and tried to pull her pants down. Ann forced Jefferson to leave the house but he returned by February of 1991. In February 1991, fearing that Jefferson had sexually abused the girls, Ann had Janet, Faye, and Amelia examined. Dr. J. Timothy Foote found that there was evidence of sexual abuse to Faye.

DFYS took emergency custody of Janet, Faye, and Amelia in May of 1991 because the custodian who was supposed to care for the girls while Ann was in a treatment program refused to do so when it appeared that Ann was still drinking and refusing to go to treatment. In September 1991 both Jefferson and Ann stipulated that the girls were children in need of aid and should be placed in state custody for one year because of Ann’s prolonged depression and substance abuse and the allegations of sexual abuse against Jefferson.

DFYS again took emergency custody of Janet, Faye, and Amelia in July 1993 when the Fairbanks Police were informed that Ann and the three girls were staying at the Fairbanks Hotel, that Ann was passed out and unable to care for the girls, and that the girls were running around the hotel unsupervised, hungry, and dirty. Ann entered the Regional Center for Alcohol and Other Addictions (RCAOA) for a short-term program in September 1993 and was discharged less than three weeks later for failure to follow directions and for falsifying a urine sample. In October 1993 both Jefferson and Ann stipulated that the girls were to remain in the custody of the state for one year. Ann was readmitted to RCAOA on October 28 but was discharged for non-compliant behavior on November 29.

Faye and Amelia were again taken into emergency custody by DFYS in July 1996. This happened after Ann dropped off Faye, age ten, and Amelia, age six, at a local grocery store and told them to walk home. The girls walked around the downtown area, where they saw their mother in an intoxicated state, and then walked home. Their aunt was there, but she was unwilling to care for Faye and Amelia and called the Fairbanks Police, who took the girls to an emergency foster home. In November 1996 Ann and Jefferson again stipulated that Faye and Amelia were children in need of aid and, therefore, should be in state custody for up to two years.

Ann again entered substance abuse treatment in 1997. She was treated at RCAOA for seven months beginning in January before being administratively discharged in July. Ann was referred to the Women’s and Children’s Residential Program (WCRP) in April 1998 where she remained until she was discharged in July. Ann participated in the recommended aftercare program for about a month but did not finish this program. Faye and Amelia were returned to Ann’s care in December.

Ann started showing signs of relapse around May of 1999. Ann had several urinalyses between May of 1999 and June of 2000 that showed positive results for various drugs, including (1) cocaine, (2) opiates, and (3) benzodiazepines and barbiturates. Other urinalyses came back with low creatinine levels, indicating that Ann had tried to dilute her urine to hide evidence of drug use.

Ann entered substance abuse treatment again in September 2000 and was discharged in November after completing her treatment plan. Ann had several urinalyses while in treatment which were positive for various drugs. Three such tests within one week in November 2000 showed positive results for, respectively, opiates and benzodiazepines, barbiturates, and barbiturates and benzo-diazepines. These results caused the treatment center to rate Ann as having a high relapse potential.

B. Proceedings

DFYS petitioned for the termination of Ann’s and Jefferson’s parental rights to Faye and Amelia in July 2000. A trial was held before Superior Court Judge Mary E. Greene in December 2000. In her findings and order terminating parental rights issued in March 2001, Judge Greene found that there was clear and convincing evidence that Ann’s ability to parent had been substantially impaired by her habitual use of drugs and alcohol and that this had resulted in harm to Faye and Amelia.

The court also found that it was likely that Ann consumed alcohol while pregnant with Amelia, resulting in Amelia having fetal alcohol syndrome, and that Ann failed to protect her children from sexual abuse by Jefferson, even though she was made aware of Jefferson’s possible conduct as early as 1988 when Sylvia reported specific incidents to Ann. Further, the court found that Ann had failed to remedy the conduct that placed Amelia and Faye at substantial risk of harm.

As required by the Indian Child Welfare Act (ICWA), Judge Greene found beyond a reasonable doubt that continued custody of Faye and Amelia by Ann was likely to result in serious physical or emotional damage to the girls, because it was likely that they would be sexually abused and because Ann was likely to relapse into substance abuse again and be unable to meet Faye’s and Amelia’s needs. The court also found by a preponderance of the evidence that active efforts had been made to prevent the breakup of the Indian family under ICWA and that an “unusually extensive set of programs has been offered to this family.” These programs included substance abuse treatment programs, intensive in-home services, parenting instruction, help with how to teach a fetal alcohol syndrome child, counseling, and parent support services.

For all of the above reasons, Judge Greene found that termination of Ann’s parental rights was in Faye’s and Amelia’s best interests. As to Amelia, the court stated that “[a]ll efforts should be made immediately to find [Amelia] an Athabascan placement, although she has permanent placement ... if a Native home cannot be found.” As to Faye, although noting that “termination is less clearly necessary,” the court nonetheless found that termination was in Faye’s best interest given the alternative of remaining in Ann’s custody and that termination was necessary in order to find permanent placement for Faye because Ann had a history of interfering with the placement of her children. Judge Greene concluded that terminating Ann’s parental rights made it more likely that successful permanent placement could be found for Faye and Amelia.

Ann appeals the termination of her parental rights.

III. STANDARD OF REVIEW

We will affirm a trial court’s factual findings regarding termination of parental rights unless those findings are clearly erroneous. A finding of fact is clearly erroneous when we are left with a definite and firm conviction that the trial court has made a mistake. “Whether the factual findings are sufficient to satisfy the Child In Need of Aid (CINA) rales is a question of law” that we will review de novo. We “adopt the rale of law that is most persuasive in light of precedent, reason, and policy” for questions of law.

IV. DISCUSSION

A. The Superior Court’s Findings that the Children Have Been Subjected to Conduct or Conditions Described in AS 47.10.011 Is Adequately Supported by the Record.

Ann argues that the superior court is required to make findings as to the requirements of AS 47.10.011(6) under the circumstances that exist at the time of termination, not merely through “historical chronology.” Ann states that a “recital of stale events no longer applicable cannot solely create a catch-all for termination of parental rights involving an eleven-year-old daughter and a fourteen-year-old daughter wherein the court has admitted that any meaningful placement stability is in question.” Ann asserts that Judge Greene failed to point to specific current problems to justify termination.

The state argued for termination under AS 47.10.011(1), (7), (8), (9), and (10), not under subsection (6). Ann’s argument that the superior court must meet the requirements of AS 47.10.011(6) fails because it does not respond to the state’s petition to terminate. Judge Greene was not required to find that the state had met the requirements of AS 47.10.011(6) because the state did not argue for termination under that particular subsection.

In response to Ann’s argument that the superior court erred in relying on events that occurred prior to the termination proceedings, the state asserts that “the question is whether the parent’s conduct had previously made the child a child in need of aid, not whether it is making the child in need of aid at the time of the termination trial.” Under AS 47.10.088(a)(1)(A), as a prerequisite to terminating parental rights, the superior court is required to find by clear and convincing evidence that the children have been subjected to conduct or conditions described in AS 47.10.011. We have previously stated that “the inquiry regarding CINA status at a termination hearing involves ‘all evidence of the parent’s pre-termination hearing conduct, including evidence of parental conduct predating the CINA adjudication.’ ” We therefore find that it was appropriate for the superior court to take all of Ann’s past conduct into account in making its determination under AS 47.10.088(a)(1)(A).

Ann also argues that there was insufficient evidence to support the superior court’s finding by clear and convincing evidence that the children remained children in need of aid under AS 47.10.011. Judge Greene issued a sixteen-page decision in which she found by clear and convincing evidence that Ann’s substance abuse affected her parenting, causing her to neglect Faye and Amelia and posing a risk that the girls would be sexually victimized. Judge Greene also found that Ann’s lack of supervision of the girls resulted in a substantial risk that the girls would be sexually abused, that Ann’s behavior subjected the girls to neglect, and that Ann’s substance abuse resulted in substantial risk of harm to the girls. While the court’s lengthy findings and order does not contain the recitation that Faye and Amelia are children in need of aid and does not state under which subsections of AS 47.10.011 the children qualified as children in need of aid, the findings are nonetheless legally sufficient. Under AS 47.10.088(a) an explicit finding that children are in need of aid as a condition of termination of parental rights is not required. But the court must find that the children have been subjected to “conduct or conditions described in AS 47.10.011.” That section, in turn, describes conduct and conditions that must exist in order to find that a child is a child in need of aid. In the present case Judge Greene, without identifying subsections (7), (9), and (10) of AS 47.10.011, explicitly found by clear and convincing evidence that the children had been subjected to conduct or conditions that are described in those subsections. The findings thus comply with AS 47.10.088.

Judge Greene’s findings that Faye and Amelia had been subjected to conduct or conditions tracking those described in AS 47.10.011 are supported by the record in this case. Ann has had a substance abuse problem that has required the repeated intervention of DFYS since 1987. On at least two occasions, Ann has stipulated that Amelia and Faye were children in need of aid due to Ann’s alcohol abuse. Ann has been in at least four different substance abuse programs and has consistently failed to maintain her sobriety. There is also substantial evidence that Ann’s substance abuse was escalating from alcohol abuse to abuse of prescription and street drugs. Ann also consistently failed drug tests while in substance abuse treatment.

Ann’s substance abuse placed the girls at substantial risk of harm and caused Ann to neglect the girls. DFYS has had to take at least one of the daughters into custody on at least six different occasions since 1987 because Ann was unable to care for the girls due to her substance abuse. On multiple occasions Ann has been found passed out and unable to care for the girls. Reports have been made over a period of years that the girls were dirty and hungry due to Ann’s neglect. Ann’s substance abuse has also impaired her judgment so that male visitors who pose a substantial risk to the girls are allowed in the home.

Both Faye and Amelia are special needs children who require consistent environments in order to meet educational goals. Amelia suffers from fetal alcohol syndrome, and Faye may suffer from fetal alcohol effect. Ann failed to provide the needed environment for Faye and Amelia because her substance abuse required the girls to get up, get dressed, and get themselves to school on their own. The girls were consistently absent from school, late in arriving, and were often picked up hours after school had ended. The principal of the girls’ elementary school testified that Ann showed up intoxicated at the school.

The record also supports a finding that Faye and Amelia were at substantial risk of being sexually abused due to Ann’s lack of supervision. The record shows that Ann took Sylvia to the doctor twice to have her examined for possible sexual abuse by Jefferson. Ann also took Faye to the doctor, and Dr. Foote determined that Faye had been sexually abused. Also, Ann testified that she was aware of the likelihood that Jefferson was sexually abusing her daughters. Therefore, there was sufficient evidence that Ann was aware that Faye and Amelia were at a substantial risk for sexual abuse but that Ann failed to protect her children from this danger.

We consequently conclude that the findings that Faye and Amelia were subjected to conduct or conditions described in AS 47.10.011 are adequately supported by the record and the superior court did not err in terminating Ann’s parental rights.

B. The Superior Court Did Not Err in Ordering the Termination of Ann’s Parental Rights Instead of Guardianship Pursuant to AS 47.10.110.

Ann argues that the superior court erred because it did not consider appointing a guardian for the children instead of terminating her parental rights. The superior court was not required to consider the less drastic alternative of guardianship in a termination proceeding. We have previously stated that

[although AS 47.10.110 permits a court to appoint a guardian for a child when it appears to the court that such an appointment would be in the child’s best interest, AS 47.10.088 does not require that guardianship be considered in termination proceedings, except to the extent that the statute requires the court to order an arrangement that is in the child’s best inter-estJ[]

In this case, Judge Greene concluded that termination was necessary because of Ann’s “history of interfering with the children’s placements.” This conclusion was amply supported by the testimony of Joanne Sim-merman, a social worker with DFYS, who testified that Ann interfered with Faye’s foster placement and that Ann’s relatives refused placements due to fears that Ann would be disruptive. The superior court did not err in choosing termination, because the significant chance that Ann would interfere with any guardianship justified the termination of Ann’s parental rights in the best interests of her children.

V. CONCLUSION

Because there was substantial evidence that Faye and Amelia were subjected to conduct or conditions described in AS 47.10.011 and the superior court’s order terminating Ann’s parental rights was supported by the law, we affirm the superior court’s order.

      . Pseudonyms have been used in this opinion for all family members.

      . Jefferson was served with notice but he failed to appear at the termination proceedings. His parental rights were terminated in March 2001 and he is not appealing the termination.

      . 25 U.S.C. § 1912(f) (2001).

      . 25 U.S.C. § 1912(d).

      . See25U.S.C. § 1915(b).

      . A. A. v. State, Dep't of Family & Youth Sens., 982 P.2d 256, 259 (Alaska 1999).

      . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

      . T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1092 (Alaska 2001).

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

      . AS 47.10.011(6) provides:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:

      (6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child’s parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child adequately!)]

      .These subsections of AS 47.10.011 deal with abandonment (subsection 1), sexual abuse (subsection 7), mental injury (subsection 8), neglect (subsection 9), and substance abuse leading to substantial risk of harm to the child (subsection 10).

      . AS 47.10.088(a)(1)(A) provides:
      (a) Except as provided in AS 47.10.080(o), 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 [.]

      . AS 47.10.088(a)(1)(A); see also J.H. v. State, Dep’t of Health & Soc. Servs., 30 P.3d 79, 85 (Alaska 2001).

      . A.H. v. State, Dep’t of Health & Soc. Servs., 10 P.3d 1156, 1161 (Alaska 2000) (quoting D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 209 (Alaska 2000)).

      . AS 47.10.011(7) provides that a child may be adjudicated a child in need of aid when:
      the child has suffered sexual abuse, or there is a substantial risk that the child will suffer sexual abuse, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to adequately supervise the child; if a parent, guardian, or custodian has actual notice that a person has been convicted of a sex offense against a minor within the past 15 years, is registered or required to register as a sex offender under AS 12.63, or is under investigation for a sex offense against a minor, and the parent, guardian, or custodian subsequently allows a child to be left with that person, this conduct constitutes prima facie evidence that the child is at substantial risk of being sexually abused[.]

      . AS 47.10.011(9) provides that a child may be adjudicated a child in need of aid when:
      conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect[.]

      . AS 47.10.011(10) provides that a child may be adjudicated a child in need of aid when:
      the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child; if a court has previously found that a child is a child in need of aid under this paragraph, the resumption of use of an intoxicant by a parent, guardian, or custodian within one year after rehabilitation is prima facie evidence that the ability to parent is substantially impaired and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child as described in this paragraph[.]

      . As the superior court so plaintively noted in its Findings and Order:
      Ms. [Jackson] was still drugging during her latest substance abuse treatment even though she has had more treatment than anyone the court has ever seen in such cases, has had lots of support, had the incentive of knowing the termination trial would be starting soon and the knowledge that urinalysis tests were being done.

      . C.W. v. State, Dep’t of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).


author: JUSTICE RICE Justice HOBBS,

text:
    In re The PEOPLE of the State of Colorado, Plaintiff, v. Benjamin CARDENAS, Defendant.
    No. 02SA236.
    Supreme Court of Colorado.
    Nov. 18, 2002.
    Rehearing Denied Jan. 13, 2003.

    Mark T. Adams, District Attorney R. Jason Richards, Deputy District Attorney Sterling, Colorado, for the Plaintiff.
    Janet D. Zimmerman Sterling, Colorado, for Defendant.

       Justice HOBBS and Justice MARTINEZ would grant the Petitions.

   JUSTICE RICE

delivered the Opinion of the Court.

This original proceeding under C.A.R. 21 arises out of a criminal case currently pending in Logan County Court. The issue is whether the state must appoint, at its own expense, an interpreter to serve as a private translator for out-of-court discussions between a defendant and his pro bono attorney. We hold that the trial court did not abuse its discretion in refusing to appoint an interpreter for the Defendant under the circumstances of this case.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Benjamin Cardenas, pled guilty in Logan County Court to one count of driving under the influence (DUI) and is currently awaiting sentencing. At the time his plea was taken, he was not represented by an attorney. However, when his case came before the court for sentencing, Janet Zimmerman, representing the Defendant pro bono, entered her appearance on his behalf.

Defendant is a Spanish-speaker who speaks no English. Because Ms. Zimmerman speaks no Spanish, she has been unable to have any substantive communication with her client. Her only information regarding the ease was derived from her discussions with one of Defendant’s friends, who apparently speaks some English.

At the sentencing hearing, Zimmerman notified the court of her belief that Defendant’s guilty plea was coerced by the state and was therefore involuntary. However, because of the language barrier between herself and Defendant, she could not learn sufficient details about the case in order to determine whether Defendant’s plea should be withdrawn. Rather than hire and pay for an interpreter in order to assist her in investigating the circumstances surrounding Defendant’s plea, Zimmerman requested that the trial court appoint, at state expense, an interpreter to serve in that capacity. The trial court denied Zimmerman’s request. The court, however, continued the sentencing date and arranged for an interpreter to be present at the next hearing solely for the purpose of translating the in-court proceedings. Defendant filed a petition pursuant to C.A.R. 21 and this court issued a rule to show cause. We now discharge the rule.

II. ANALYSIS

The issue in this case is the narrow question of whether the trial court abused its discretion in failing to provide, at state expense, a private interpreter to translate out-of-court discussions between Defendant and his pro bono attorney. We conclude that the answer is no.

Defendant relies on section 18-1-403, 6 C.R.S. (2002), in support of his argument that out-of-court interpreting services must be provided. In that section, the General Assembly expressed its intention to provide indigent defendants with legal representation at state expense:

[A]ll indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.

§ 18-1-403, 6 C.R.S. (2002). In Defendant’s view, because the cost of legal representation is being supplied pro bono by Ms. Zimmerman, the state need only pay for the cost of “supporting services,” namely, the cost of a private interpreter. Without an interpreter, Defendant, argues that Zimmerman will be unable to provide adequate and competent representation and he will therefore be deprived of his constitutional right to the assistance of counsel.

Defendant is correct in his assertion that all defendants have a fundamental right to be represented by counsel during criminal prosecution, and that indigent defendants are entitled to have counsel appointed at the expense of the state. See Colo. Const, art. II, § 16; Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965); U.S. Const, amend VI; Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Although indigent defendants are entitled to state-paid legal representation and supporting services, Defendant fails to notice the last phrase in section 18-1-403 which provides that such representation is only, “to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.” § 18 — 1— 403, 6 C.R.S. (2002). The General Assembly has created an agency charged with providing legal representation and services to indigent defendants: the office of state public defender. See § 21-1-101 to -106, 6 C.R.S. (2002). Pursuant to section 21-1-103(3), 6 C.R.S. (2002), the public defender’s office, upon application from a defendant, is required to make a determination that the defendant is indigent before he may obtain the services of that office.

In this case, Defendant has not applied for the services of the public defender. Instead, he chose to be represented by Ms. Zimmerman. While an indigent defendant has the right to legal representation and supporting services at state expense, he does not have the right to pick the attorney of his choice. See People v. Coria, 937 P.2d 386 (Colo.1997); People v. Shook, 186 Colo. 339, 627 P.2d 816 (1974); Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965). If Defendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel. See § 21-2-101 to -106, 6 C.R.S. (2002). While he certainly has a right to be represented by Ms. Zimmerman, the state is not obliged to pay the costs of that representation.

In addition, Defendant points to Chief Justice Directive 90-01 (amended Aug. 16, 2001), to support his view that the trial court should have appointed a translator. Chief Justice directives represent an expression of Judicial Branch policy, to be given full force and effect in matters of court administration. See Office of the State Court Adm’r v. Background Info. Servs., Inc., 994 P.2d 420, 431 (Colo.1999). Defendant reads directive 90-01, an expression of policy regarding the hiring of interpreters, much more broadly than we do. Pursuant to the directive, the only situation in which the appointment of a state-paid interpreter is mandatory is for translation of in-court proceedings. The directive, we conclude, does not require the trial court to appoint a private interpreter under the facts of this ease.

We encourage lawyers to engage in pro bono representation of indigent defendants. However, we have found no statute or case which would lead us to conclude that the trial court abused its discretion in refusing to appoint an interpreter for the Defendant.

III. CONCLUSION

The trial court did not abuse its discretion in refusing to appoint a private interpreter for Defendant. Accordingly, the rule to show cause is discharged.

Justice HOBBS dissents and Justice MARTINEZ joins in the dissent.

Justice HOBBS,

dissenting:

I respectfully dissent. Our rule to show cause required briefing and response on the following question:

Whether the county court has discretion to appoint a translator for an indigent client who is represented by a pro bono attorney in a criminal case. (emphasis added).

In my view, the county court erred in determining that it did not have discretion to appoint an interpreter to assist Cardenas in communications with his pro bono attorney.

When Cardenas entered his guilty plea, he was without the assistance of counsel. The only interpreter available to him in the guilty plea proceeding was a law enforcement employee. Recognizing a factual and legal basis for a possible withdrawal of the guilty plea, attorney Janet Zimmerman volunteered to represent Cardenas if she could have the services of a certified translator to help with privileged attorney-client communication. The county court permitted her general appearance but determined that it lacked authority to provide Cardenas and his pro bono counsel the services of an out-of-courtroom interpreter.

Rather, the county court ruled that the public defender’s office is obligated to represent indigent persons; that the county court cannot make a determination of indigency independent of the public defender’s office; that defendant cannot choose his counsel and then require the court to pay for that attorney; and there is no legal authority requiring the court to furnish interpreters or other experts to assist an attorney in making a determination whether the attorney will represent a potential client.

When attorney Zimmerman sought to confer with Cardenas in the courthouse hallway, the judicial district’s administrator rebuked Zimmerman through a letter which stated that “The Judicial Department pays for in-court language interpreting.... As a convenience to the interpreter and to eliminate additional tracking of time for a few minutes, a hallway plea bargain that interrupts court proceedings is also paid through mandated costs.” (emphasis in original letter).

The Majority opinion states that the trial court did not abuse its discretion in denying the services of an additional translator. See maj. op. at 623, 625. However, the county court did not reach the stage of exercising its discretion, because it ruled that it had no discretion to allow interpreter services at state expense, other than in-court translation. The record demonstrates that both the county court and the court administrator believed that courts lack such discretion. Because the applicable Chief Justice Directive permits the court to provide the additional interpreter at state expense, we should remand this case so that the county court may exercise its discretion under informed standards, allowing the county court to (1) determine the question of indigency and (2) whether to provide interpreter services to Cardenas and his pro bono counsel or require Cardenas to apply for public defender representation in order to gain translation assistance at state expense.

A. Chief Justice Directive 90-01 Allows for An Additional Interpreter When Defendant Is Represented Pro Bono

Chief Justice Directive 90-01 plainly allows — but does not require — the county court to determine the question of indigency for purposes of providing additional interpreter services, beyond the in-courtroom interpreter:

The court may appoint, at state expense, an additional interpreter for any party to a court case when there is a finding of indigency as to that individual. (See 13-90-114 C.R.S.)(See also Colorado Judicial Department Fiscal Procedures Ch. 17.2).

Chief Justice Directive 90-01, Section 2, as Amended 8/16/01 (emphasis added). The statutory reference in the parenthetical language of the rule is to the duty of the state court administrator to audit the accounts of the interpreter. See § 13-90-114, 5 C.R.S. (2002). This directive makes no distinction between criminal and civil cases in regard to additional interpreter services.

The directive does not prohibit a court from determining that a person is indigent and needs the interpreter’s services; to the contrary, the directive’s wording assumes that courts have such authority. This is consistent with our case determinations. We have previously held that a county court has the authority to make determinations of indi-gency apart from the public defender’s decision regarding indigency when a person seeks representation by that office. See Rodden v. Colo. State Penitentiary, 52 P.3d 223 (Colo.2002) (county court had authority to determine indigency and its ruling that the incarcerated person was indigent precluded requiring an appeal bond).

In my view, Chief Justice Directive 90-01 allows the county court the discretion it thought it lacked. The directive provides plainly that (1) the court “may appoint more than one interpreter in any one case,” and (2) the court “may appoint, at state expense, an additional interpreter for any party to a court case when there is a finding of indigen-cy as to that individual.” Chief Justice Directive 90-01, Section 2, as Amended 8/16/01. In juxtaposition, the directive provides that the cost of an additional interpreter may be assessed against a non-indigent party to the case, as a court cost:

In instances where there is no finding of indigency, the court may appoint an additional interpreter whose fees may be considered court costs pursuant to statute and may be assessed to parties in the case.

Id.

When read in its entirety, this Chief Justice Directive assigns to the court the determination of whether the costs of an additional interpreter ought to be charged to a party or not depending on whether the party is indigent. The court should make that determination of indigency consistent with section 13-16-103, 5 C.R.S. (2002) and Chief Justice Directive 98-01, Section II, as Revised 6/1/98. See Walcott v. Dist. Court, 924 P.2d 163, 167 (Colo.1996).

B. Pro Bono Services

Colorado attorneys have a professional responsibility not to refuse the cause of the defenseless or oppressed.

I will never reject, from any consideration personal to myself the cause of the defenseless or oppressed.

Oath of Admission, Colorado Supreme Court, sixth clause. Colo. RPC 6.1 states an aspirational goal of 50 hours per year per attorney in pursuit of this responsibility. Nothing in Colo. RPC 6.1 states that the “persons of limited means” who would benefit from this representation cannot be a criminal defendant. See Colo. RPC 6.1(a)(1).

Nor is a county court prohibited from accepting the appearance of a pro bono attorney in a criminal case because interpreter services would be required. The county court need not accept such an appearance, because the indigent person is not entitled to representation by a particular attorney, but it has discretion to do so. The county court, in the case before us, so recognized by entering attorney Zimmerman’s appearance. But, the court labored under the mistaken impression that it had no authority to make a determination of indigency and provide the out-of-courtroom interpreter service attorney Zimmerman might need to effectively represent Cardenas.

The result of the county court’s ruling is that attorney Zimmerman must pay for the interpreter services if she wishes to represent Cardenas pro bono. Such a holding deters rather than encourages pro bono representation.

This court has actively encouraged pro bono representation of indigent defendants. See Colo. RPC 6.1; Justice Rebecca L. Kour-lis & Judge Daniel M. Taubman, Changes to Code of Judicial Conduct Allow Judges to Support Pro Bono Legal Services, 29 Colo. Law. 41 (May 2000). Judges have a special opportunity and obligation to use their positions to provide access to our justice system, and, in that vein, they have an obligation to use the court’s administrative tools to develop a court culture that is supportive of pro bono service. Id.

Allowing the state to pay costs, in conjunction with pro bono attorney time, as a matter of economic reality would encourage attorney participation in pro bono service. Pro bono representation envisions providing legal services without compensation, but not necessarily at high individual expense to the attorney. When an attorney provides pro bono service, she demonstrates a commitment to the public interest. WTien private counsel agrees to represent an indigent defendant, the burden and financial cost is taken off the state public defender’s office. Allowing indigent defendants to receive support services, at the state’s expense, even when they are represented by private counsel, encourages counsel to provide the service and saves the state the cost of attorney’s fees.

Nothing in our statutory law prohibits state funded translation services to support indigent defendants who proceed with private pro bono counsel. Further, allowing an indigent defendant to have interpreter services, paid for by the state, would not give the defendant the right to choose any counsel and then charge the state for the representation. The state would not be responsible for the attorney’s fees. An indigent defendant would still be required to obtain state paid attorney representation through the public defender’s office. The decision that the state will not pay attorney’s fees for an indigent’s counsel of choice does not require that support services be governed by the same rationale as attorney services paid for by the state. Furthermore, state funded support services for indigent defendants would be controlled by the standard of necessity for an adequate defense.

C. Remand Would Allow County Court to Exercise Its Discretion

Consistent with the attorney’s oath of office and pro bono aspirational rule, I conclude that we should remand this case to the county court, so that it may determine whether out-of-courtroom certified interpreter services will aid the just resolution of the case before the court. The court could first proceed with the in-courtroom interpreter to determine whether Cardenas would benefit from attorney Zimmerman’s representation and the services of an additional interpreter. If so, it could make the appointment of the additional interpreter. If not, it could decline to do so.

The underlying issue in this case appears to be whether Cardenas has a basis for withdrawing his guilty plea. Cardenas was initially charged with driving under the influence, driving under the influence per se, and two other traffic charges in an incident on February 25, 2002. Because Cardenas’ blood test failed to show a positive result for the illegal substances tested, the district attorney’s office filed a motion to dismiss, and the Court subsequently dismissed the DUI and DUI per se charges. However, during the first appearance on the traffic offenses on May 22, 2002, the court granted the district attorney’s motion to amend the charges against defendant to include a driving under the influence of drugs (DUID) charge. The defendant was persuaded to plead guilty to that DUID charge in return for a dismissal of all remaining charges and a suspension of jail as a condition of probation. Probation was to last a period of two years.

Defendant was without representation during his plea, and it is unclear whether the public defender would have assisted Cardenas in his guilty plea because his jail sentence was suspended. Sally Torres, who provided interpretation during the guilty plea proceedings was uncertified as an interpreter, was a witness against Cardenas in another pending district court case, and is employed by the Victim’s Assistance Coordinator for the Logan County Sheriffs Office. Undoubtedly, Torres could not be considered a neutral facilitator to aid Cardenas’ understanding of his choices and their implications.

I would require the county court to exercise its discretion. The county court could determine whether Cardenas is indigent and whether to provide the services of an additional interpreter, in accordance with the Chief Justice Directive, for the purpose of permitting Cardenas to proceed with the assistance of pro bono counsel in deciding whether to move to withdraw his plea or proceed to sentencing. In the alternative, the county court could determine that Cardenas must apply to the public defender’s office for representation if he wants out-of-court interpreter assistance at state expense.

Contrary to the county court’s assumption, section 21-1-103(3), 6 C.R.S. (2002), providing for the public defender to make a determination of indigency, does not preclude the court’s discretion to proceed under the directive. Section 18-1-403, 6 C.R.S. (2002), and case precedent provide for the exercise of court discretion in providing state funded services to indigent defendants.

Section 18-1^403 states that all indigent persons charged with a crime are entitled to legal representation and supporting services at state expense. § 18-1-403, 6 C.R.S. (2002). If legal representation necessarily included all supporting services and no services outside the public defender’s office are available, the General Assembly’s inclusion of the word “and” is superfluous. When an indigent defendant is represented by the public defender’s office, the court still has the authority and responsibility to withhold or grant supporting services. The right to supporting services, such as an expert, at the state’s expense is not dependent on representation by the public defender.

In my view, the Majority too narrowly construes a court’s authority to provide interpreter services to an indigent client represented by a pro bono counsel. A state must provide an indigent defendant with the basic tools to present an adequate defense. Rojem v. Gibson, 245 F.3d 1130,1139 (10th Cir.2001) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)). Communication between the attorney and client is integral for effective assistance. Recently, the court of appeals in People v. Ochoa-Magana, 36 P.3d 141 (Colo.App.2001), acknowledged that the lack of an interpreter to assist a non-English speaking defendant in attorney-client communication can impair the constitutional right to effective assistance of counsel. Id. at 143. Indeed, effective assistance of counsel is impossible unless the client can provide his or her lawyer with intelligent and informed input. United States v. Mosquera, 816 F.Supp. 168 (E.D.N.Y.1993).

A three factor test applies to whether a specific service is necessary for an adequate defense including: (1) the effect on the private interest in the accuracy of the trial if the service is not provided, (2) the burden on the government’s interest if the service is provided, and (3) the probable value of the additional service and risk of error in the proceeding if the service is not provided. Rojem, 245 F.3d at 1139. The focus of the test is on whether the indigent defendant will be able to present an adequate defense without the service, not whether the defendant has chosen to be represented by the public defender, proceed pro se, or retain private counsel on a pro bono basis.

A court’s determination of whether supporting services should be provided at the state’s expense depends on the necessity of the service, no matter who represents the defendant. See Matthews v. Price, 83 F.3d 328, 335 (10th Cir.1996) (indigent defendant, represented by private counsel, is entitled to state appointed expert only if he shows such services are necessary to an adequate defense); Brown v. Dist. Court, 189 Colo: 469, 541 P.2d 1248 (1975) (court denied indigent defendant’s request for appointment of an expert because he failed to show the services sought were necessary; defendant was represented by the public defender); People v. Garcia, 981 P.2d 214, 218 (Colo.App.1998) (indigent defendant, represented by the public defender, requested state funds to hire an expert, the court denied the request because the defendant failed to show the services of the expert were necessary); People v. Tafoya, 703 P.2d 663, 667 (Colo.App.1985) (defendant, represented by private counsel, requested investigatory services at the state’s expense, the court denied the request because there was no finding the defendant was indigent or the services were necessary).

None of these cases base the determination of whether the state should provide the indigent defendant with support services on who represents the defendant. The decision of whether to appoint an interpreter, at state expense, under the discretionary provision of the Chief Justice Directive, should be premised on whether the services requested are necessary to an adequate defense and effective assistance of counsel. In this case, Cardenas was unable to speak with his counsel because he did not speak English and she did not speak Spanish. Consequently, counsel stated that she could not determine if Cardenas’ guilty plea was voluntary. Without a translator, the risk of error was great. In contrast, the burden on the state of providing the additional interpreter service to Cardenas is minimal and the state’s interest in encouraging pro bono representation is great.

Accordingly, I respectfully dissent.

I am authorized to state that Justice MARTINEZ joins in this dissent.

      . Ms. Zimmerman initially told the court that she was entering only a "conditional appearance,” and that her further involvement would be conditioned on the appointment of a translator. The court stated that it would not accept a conditional or limited appearance and therefore Ms. Zimmerman entered her general appearance as counsel for Defendant.

      . We note that there has been no finding in this case that Defendant is, in fact, indigent. Pursuant to section 21-1-103(3), 6 C.R.S. (2002), upon application by a defendant, the public defender's office must make a finding that a defendant is indigent before a defendant is entitled to representation by the public defender. The Defendant, who has been declared to be indigent in an unrelated case currently pending in Logan County District Court and who is represented by the public defender in that case, did not apply for representation by the public defender in this case.

      . The Majority rephrases the question to state:
      "whether the state must appoint, at its own expense, an interpreter to serve as a private translator for out-of-court discussions between a defendant and his pro bono attorney." See maj. op at-. (emphasis added).

      . The directive requires the appointment of in-court interpreter services in criminal and juvenile cases.

      . Section 16-5-501, 6 C.R.S. (2002), provides that when a prosecuting attorney does not seek incarceration as part of a penalty, legal representation need not be provided at state expense.


author: LARRY JOPLIN, Vice-Chief Judge:

text:
    2003 OK CIV APP 3
    Sharon CARSWELL, Plaintiff/Appellant, v. OKLAHOMA STATE UNIVERSITY, The Department of Higher Education, State of Oklahoma, Defendant/Appellee.
    No. 96304.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Sept. 27, 2002.
    Certiorari Denied Dec. 18, 2003.

      Sam L. Stein, Cherokee, OK, George Whit-tenburg, C. Jared Knight, Amarillo, TX, for Appellant.
    Angela K. Berglan, Assistant Attorney General, Oklahoma City, OK, for Appellee.
   Opinion by

LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Plaintiff/Appellant Sharon Carswell (Plaintiff or Carswell) seeks review of the trial court’s order denying her motion to reconsider upon remittitur of a jury verdict assessing damages against Defendant/Appel-lee Oklahoma State University, the Department of Higher Education, State of Oklahoma (Defendant or OSU) on Plaintiffs negligence claim. In this proceeding, Plaintiff asserts the trial court erred in denying her motion to reconsider because (1) Defendant reaped no protection from the Oklahoma Governmental Tort Claims Act (OGT-CA or Act), 51 O.S. § 151, et seq., for its negligence in performance of a proprietary function; (2) if the Act applies, Defendant waived protection of the Act’s limitation on damages, 51 O.S. § 154, by failing to assert § 154’s damage limit in answer or prior to the verdict; (3) alternatively, the Legislature, by amendment pendente lite, increased § 154’s maximum recoverable damages from $100,000.00 to $175,000.00, to which increased recovery she is entitled; and (4) inasmuch as the evidence demonstrated multiple negligent acts of Defendant, she is entitled to recover the statutory maximum damages for each of Defendant’s negligent acts. Upon consideration of the record and briefs, however, we find no error by the trial court, and hold the order of the trial court should be affirmed.

¶ 2 During the school term of 1997-1998, Plaintiff, then a student in her senior year at OSU, worked in an OSU chemistry lab performing research under the supervision of an OSU professor. Plaintiff asserted that in the course of her research lab work, she received substandard supervision and was negligently exposed to various deleterious substances on at least 150 occasions, causing her serious harm and damage.

¶ 3 Upon consideration of the evidence, the jury returned a verdict for Plaintiff and awarded damages of $1.399 million, reduced by her adjudicated eighteen percent (18%) comparative negligence to $1,140,185.00. By post-judgment oral motion, Defendant prayed for a remittitur of all damages in excess of $100,000.00 pursuant to the terms of § 154 at the time Plaintiffs cause of action accrued, which the trial court granted.

¶4 Plaintiff filed a motion to reconsider, alleging Defendant’s waiver of the § 154 damage cap, or alternatively, her entitlement to the statutory maximum damages for each of the alleged 150 negligent exposures she suffered. The trial court denied the motion to reconsider, and Plaintiff appeals.

¶ 5 In particular, Plaintiff asserts the Act does not protect governmental units from liability for the torts of its agents or employees when committed during the performance of proprietary functions, and the evidence showed OSU was engaged in purely proprietary — not governmental — research at the time of her injury. See, 70 O.S. § 3206.3(l)(d), (21(c); 74 O.S. § 85.20(C). See also, e.g., Wallace v. State ex rel. Oklahoma Tourism and Recreation Dept., 1983 OK 114, ¶ 6, 675 P.2d 436, 437; Hershel v. University Hospital Foundation, 1980 OK 60, ¶ 0, 610 P.2d 237, 238; State ex rel. State Insurance Fund v. Bone, 1959 OK 135, ¶ 0(1), 344 P.2d 562, 563. However, the Act statutorily abrogated the governmental-proprietary test for liability of the state and its subdivisions. McGaha v. Bd. of Regents of the Univ. of Oklahoma, 1984 OK 81, ¶ 4, 691 P.2d 895, 896; Vanderpool v. State, 1983 OK 82, ¶ 18, 672 P.2d 1153, 1156. See also, Salazar v. City of Oklahoma City, 1999 OK 20, ¶ 26, 976 P.2d 1056, 1066. We therefore reject this proposition.

¶ 6 Plaintiff also asserts the § 154 damage cap constitutes an affirmative defense which Defendant waived by failing to assert the defense, either in answer before trial, or until after the verdict. See, Bentley v. Cleveland County Board of County Commissioners, 41 F.3d 600, 605 (10th Cir.(Okla.) 1994). We go no farther than to observe that the Pre-Trial Order, in the section, “Defenses,” lists “Liability limited to $100,000.00” pursuant to “Okla. Stat. Tit. 51 §§ 151 et seq.” We therefore reject this proposition.

¶ 7 Plaintiff further asserts the un-controverted evidence showed her exposure to toxic chemicals on at least 150 separate occasions, and that accordingly under the Act, she is entitled to recover the statutory maximum damages for each “occurrence.” 51 O.S. Supp.1994 § 154(A)(2). Now see, 51 O.S. Supp.2000 § 154(A)(2) (emerg. eff. June 6, 2000). However, we read Truelock v. City of Del City, 1998 OK 64, 967 P.2d 1183, to suggest that where a claimant under the Act suffers a series of losses over a period of time as the result of some continuing wrong, the recovery for all “occurrences” may not exceed the maximum allowed by § 154. 1998 OK 64, ¶¶ 1, 14, 967 P.2d at 1185, 1187. Such a reading is consistent with the plain language of § 154, which, in our view, evinces the Legislature’s intent to set an absolute and definite upper limit of recovery from the state or its subdivisions. See, Truelock, 1998 OK 64, ¶ 27, 967 P.2d at 1190. Moreover, in the present case, it appears Plaintiff presented no evidence demonstrating either separate injuries from each exposure or attributing cause of her damages to anything other than the cumulative effect of her multiple exposures. We therefore reject this proposition.

¶ 8 Plaintiff lastly asserts she is entitled to recover the statutory maximum damages of $175,000.00 pursuant to the version of § 154(A)(2) in effect at the time of trial and submission to the jury, rather than the $100,000.00 maximum under § 154(A)(2) as it existed at the time her cause of action accrued. Here, Plaintiff argues that because § 154(A)(2) is remedial in nature, the pendente lite amendment of that section should be accorded retroactive effect. See, e.g., Welch v. Armer, 1989 OK 117, ¶ 27, 776 P.2d 847, 850. However, because the amendment to § 154(A)(2) enlarges a claimant’s potential recovery under the Act, and because we discern no expressed Legislative intent to give the amendment retroactive effect, we hold amended § 154(A)(2) effects a substantive change in the law, operates prospectively only and does not inure to Plaintiffs benefit. Id.

¶ 9 The order of the trial court denying Plaintiffs motion to reconsider is consequently AFFIRMED.

JONES, J., and BUETTNER, J., concur.

      . These sections authorize the Oklahoma State Regents for Higher Education to establish policies and procedures governing the extent to which professors and other faculty and students may acquire property interests in technology developed and revenues derived from sponsored research, and to develop a system of accounting for research-related expenses, revenues and royalties.

      . This section nominates the Department of Central Services as the "exclusive agency to negotiate and contract for the retention of patents and copyrights on material and property developed through state contracts subject to the Central Purchasing Act,” and directs deposit of proceeds from the sale of such patents and copyrights in the general revenue fund.

      . "[B]ecause of the adoption of the [Act], the governmental-proprietary function [is] no longer ... determinative in assessing tort liability for all levels of state government.”

      . Upon passage of the Act, "[w]e hold that the governmental-proprietary-function inquiry shall no longer be determinative in assessing liability for tort as to all levels of government in this State.”

      . Particularly, Plaintiff complains that Defendant filed no answer to her petition; that Defendant did not assert the damage-cap defense during discovery, or until, on oral motion, after the jury returned its verdict.

      . "[Assuming the [Act] applied to this action, counsel for the [defendant] County waived any limit on its liability afforded by that statute by failing to raise the issue in its answer, the PreTrial Order, or at trial.”

      . "The total liability of the state and its political subdivisions on claims within the scope of this act, Section 151 et seq. of this title, arising out of an accident or occurrence happening after the effective date of this act, Section 151 et seq. of this title, shall not exceed: ... One Hundred Thousand Dollars ($100,000.00) to any claimant for his claim for any other loss arising out of a single act, accident, or occurrence.” (Emphasis added.)

      . "The total liability of the state and its political subdivisions on claims within the scope of this act, Section 151 et seq. of this title, arising out of an accident or occurrence happening after the effective date of this act, Section 151 et seq. of this title, shall not exceed: ... One Hundred Twenty-five Thousand Dollars ($125,000.00) to any claimant for his claim for any other loss arising out of a single act, accident, or occurrence. The limit of liability for the state or any city or county with a population of three hundred thousand (300,000) or more according to the latest federal Decennial Census shall not exceed One Hundred Seventy-five Thousand Dollars ($175.000.00).”

      . Over two and one-half month period, claimant filed 16 separate notices of tort claim with city for damages to his house by flooding and discharge of raw sewage from sanitary sewer lines allegedly attributable to city’s "improper maintenance of utility ease[ment]”; held, that part of the claim for "inconvenience, annoyance, and discomfort under § 154 of the [Act] is governed by the $100,000.00 limitation for 'other loss' rather than by the $25,000.00 limitation for 'loss of property,' ” and, plaintiffs waived "any right to claim a multiple of the § 154 damage limitation [for each of the 16 separate claims] when they failed to except to the trial court's jury instruction” limiting recovery for damage to their property to $25,000.00.

      . Upon appellant's failure to preserve the issue by objection to the relevant jury instruction, "[w]e hold ... that the $25,000.00 verdict the [plaintiffs] received for property damage carried with it no right to attorneys' fees because $25,000.00 was the maximum allowed by law."

      . See, footnotes 7 and 8, supra.

      . "The general rule in Oklahoma is that statutes, and amendments, are to be construed to operate only prospectively unless the Legislature clearly expresses a contrary intent. However, ..., remedial or procedural statutes which do not create, enlarge, diminish, or destroy vested rights are generally held to operate retrospectively.”


text:
    2003 OK CIV APP 5
    In the Matter of E.C.B., a minor child. Gordon Eugene Miller and Delores Louise Miller, Petitioners/Appellants, v. State of Oklahoma, ex rel. Department of Human Services, Respondent/Appellee.
    No. 97,315.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 4, 2002.
    Certiorari Denied Jan. 7, 2003.

      Michael E. Yeksavich, Tulsa, OK, for Appellants.
    Catherine O’Leary, Assistant General Counsel, Tulsa, OK, for Appellee.
    Lisa R. Frazier-Deller, Assistant Public Defender, Tulsa, OK, for the Minor Child.
   Opinion by

LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Gordon and Louise Miller (Appellants) seek review of the trial court’s order dismissing their petition to adopt their great-niece, E.C.B. (Child), upon the refusal of the Department of Human Services (DHS) to give its consent to adopt. In this appeal, Appellants essentially argue that, under certain circumstances such as those presented in the present case, DHS’s consent is unnecessary, and/or its refusal to consent is subject to review. Finding no reversible error as alleged, we affirm the trial court.

¶ 2 Child was born on February 16, 2000. At the age of two months, DHS obtained emergency custody of Child on the allegation of “shocMng and heinous” abuse by her father, and failure’ to protect by her mother and resident paternal grandmother. DHS placed Child in foster care upon her release from the hospital. In January 2001, parental rights were terminated and Child was placed in the permanent custody of DHS.

¶ 3 In about March 2001, Appellants — having never met their grand-niece, and apparently unaware of the proceedings — contacted DHS seeking visitation and consideration for adoption. DHS declined to permit visitation at that time, preferring to maintain Child’s current foster placement without change unless or until Appellants “moved forward” on their application for adoption.

¶4 To this end, DHS initiated a request for an adoptive home study of Appellants at their residence in California pursuant to the Interstate Compact on Placement of Children (ICPC), 10 O.S. § 571, in April of 2001. In August 2001, DHS received the completed home study from California which recommended Appellants be approved for adoption of Child. After further review, however, DHS declined to consent to Appellants’ application to adopt Child, ostensibly based on concerns (1) that Appellants might permit visitation by her father and paternal grandmother, and (2) for potential harm to Child from severance of the strong bond which had developed between Child and the foster parents who expressed a desire to adopt.

¶ 5 Appellants sought internal review of the decision by DHS without success. Appellants then filed their petition to adopt Child in the district court. Without timely notice to DHS, Appellants obtained a court order waiving a pre-placement home study and granting an interlocutory decree of adoption, and orders directing the release of the home study, juvenile court records, medical history and social history reports.

¶ 6 Upon receipt of notice, DHS filed an objection to Appellant’s petition, arguing its consent was required by law for any adoption of a child in its permanent custody, and setting out the reasons DHS had withheld its consent in the present case. Child’s court-appointed attorney agreed with DHS’s decision. After a hearing, the trial court “dismissed” Appellants’ petition, holding Appellants had no standing to bring, “and the Court is without jurisdiction to proceed on, the instant Petition.” Appellants appeal.

¶ 7 In two of their three propositions of error, Appellants attack the decision of DHS to withhold consent as impermissible, arguing their application to adopt Child had been approved in the DHS-initiated ICPC home study from California. However, we find nothing in the record to establish that DHS, the permanent custodian of Child, ever authorized or consented to Appellants’ adoption of Child by initiation of an ICPC home-study in Appellants’ home state of California.

¶ 8 In this respect, the ICPC is designed to promote cooperation among party states “in the interstate placement of children [so] that:”

Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of eare[;]
The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child[;]
The proper authorities of the state from which the placement is made may obtain the most complete information on the basis on which to evaluate a projected placement before it is made[; and,]
Appropriate jurisdictional arrangements for the care of children will be promoted.

10 O.S. § 571, Art. I(a)-(d). To this end, the ICPC establishes orderly procedures to ensure the protection of, and provision of services to, children placed across state lines for foster care or adoption, and in order for a child to be placed in another state, compliance with ICPC is required. 10 O.S. § 571, Article 111(a). The ICPC consequently mandates that the “sending agency” retains primary jurisdiction “to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child ... until the child is adopted,” “includ[ing] the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law.” 10 O.S. § 571, Art. V(a).

¶ 9 The Oklahoma Constitution authorizes the 'legislature to provide by appropriate legislation for the care of children. Ok. Const., Art. XXV, § 1. The Oklahoma Legislature consequently charged DHS with the duty to “determine the appropriate placement of ... child[ren]” in its custody. 10 O.S. Supp.1998 § 7003-7.1(C)(l). In the discharge of its duties, DHS must, upon “paramount consideration in all proceedings concerning a child alleged or found to be deprived [of] the health and safety and the best interests of the child,” “[e]nsure that, in the best interests of the child, when family rehabilitation and reunification are not possible or are determined not to be necessary pursuant to the Oklahoma Children’s Code, the child will be expeditiously placed with an adoptive family or in another permanent living arrangement.” 10 O.S. § 7001 — 1.2(B). Upon termination of parental rights and permanent placement of a child with DHS, DHS is vested “with authority to place the child and, upon notice to the court that an adoption petition has been filed concerning such child, ... to consent to the adoption of the child, and the jurisdiction of the committing court shall terminate upon final decree of adoption.:’ 10 O.S. § 7003-5.5(1X3). See also, 10 O.S. § 7503-2.1(D)(l).

¶ 10 However, the parties cite, and we find, no authority, permitting delegation of DHS’ primary jurisdiction over the care, custody and placement of its wards. The fact that California authorities, after a home study, recommended approval of Appellants’ petition to adopt, is therefore not determinative.

¶ 11 We view the dispositive issue in this appeal as whether the trial court possessed the authority to entertain and proceed on Appellants’ petition to adopt in the face of DHS’ express refusal to consent. Clearly, there can be little doubt that:

[T]he district court has the disposition and review authority to approve, disapprove, or modify DHS’ placement, care, and treatment of an adjudicated ... child placed in its custody; and, the judicial review authority is continuing until the court places permanent custody of the child with DHS or until the child is no longer a ward of the court.

State ex rel. Dept. of Human Services v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824, 827. It seems to us equally plain that under the Oklahoma statutory scheme, DHS is vested with the authority to consent to the requested adoption of a child in its custody on notice to the court. Colclazier, 1997 OK 134, ¶ 10, 950 P.2d at 828. Implicit in this grant of authority, it seems to us, is the authority to withhold consent. And, the statutes recognize no vehicle by which to challenge DHS’s decision to grant or withhold consent to a particular application for adoption, nor any grounds to override DHS’ decision to withhold its consent to adopt. Accordingly, we cannot say the trial court erred in dismissing Appellants’ petition to adopt.

¶ 12 Appellants nevertheless assert the trial court’s order violates their statutory custodial preference under 10 O.S. § 21.1(A), and their due process right to review of the DHS decision to withhold consent to their adoption of Child. However, Appellants are not Child’s natural parents and have no constitutionally protected interest in or to Child’s custody. See, e.g., Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Moreover, the order of custodial preference set out in § 21.1(A) is subordinate to a determination of, and a decision in, the child’s best interests. In the Application of Smith, 1992 OK CIV APP 97, ¶ 7, 837 P.2d 929, 932. Having reviewed the record, we cannot say the trial court’s judgment lies so affected by an abuse of discretion or contrary to the weight of the evidence as to warrant our intervention. Id.

¶ 13 The order of the trial court is therefore AFFIRMED.

JONES, J., dissents, and BUETTNER, J., concurs.

      . Between 23 to 28 bone fractures in various stages of healing.

      . Child remained in foster care for the ensuing ten to eleven months in which she thrived, and the foster parents expressed a desire to adopt.

      .The record suggests mother failed — when asked — to inform DHS of any family members capable of taking care of child.

      . The trial court, upon subsequent review, stated that if it had known "the whole story,” it would not have entered these orders.

      . DHS gave the following reasons in its objection to Appellants’ petition for declining the application to adopt:
      a.the shocking and heinous abuse history and background information regarding the
      child's biological family and need to guarantee the child's future safety as much as possible;
      b. the risk of future contact between the child and family members who abused her and/or failed to protect her from abuse; and,
      c. the child’s present adjustment and the significant bonding and attachment she has experienced in her current placement.

      ."When consent for adoption is necessary for minors in the custody of the Department of Human Services, the Director of the Department of Human Services or the designee of the Director may designate, authorize, and direct in writing an employee of the Department to appear in the court of the county in which said adoption proceedings are to be completed and to give written consent for the adoption of such minor by the family whose application for adoption has been approved by the Department of Human Services;

      . This issue is not directly addressed by Appellants.

      . "Custody should be awarded or a guardian appointed in the following order of preference according to the best interests of the child to: 1. A parent or to both parents jointly except as otherwise provided in subsection B of this section; 2. A grandparent; 3. A person who was indicated by the wishes of a deceased parent; 4. A relative of either parent; 5. The person in whose home the child has been living in a wholesome and stable environment; or 6. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child."

      . "The controlling language of 10 O.S. § 21.1 is the phrase ‘... according to the best interests of the child ...” when determining custody, not the order of preference. The trial court has wide latitude in determining the best interests of the child in ... proceedings for adoption. (Citation omitted.) Each case must be decided on its own merits.... Where the custody of a minor child is an issue between two parties and neither one is a natural parent, the issue is not to be decided upon the statutory order of preference alone in the event both contesting parties are deemed to be fit and proper custodial parties.”


author: JERRY L. GOODMAN, Judge:

text:
    2003 OK CIV APP 6
    Shannon ELLEDGE and Brigitte Elledge, individually and as husband and wife, Plaintiffs/Appellants, v. STILLWATER MEDICAL CENTER, Defendant/Appellee, and Lloyd Bernard Moore, Jr., M.D., Defendant.
    No. 97,811.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Oct. 8, 2002.
    Certiorari Denied Dec. 18, 2002.

      Gerald E. Durbin, II, R. Brad Miller, Dur-bin, Larimore & Bialick Oklahoma City, OK, for Plaintiffs/Appellants.
    Beth S. Reynolds, Karen L. Callahan, Leslie C. Weeks, Rodolf & Todd, Tulsa, OK, for Defendanl/Appellee Stillwater Medical Center.
   Opinion by

JERRY L. GOODMAN, Judge:

¶ 1 This is an appeal by plaintiffs Shannon and Brigitte Elledge (collectively, Elledge) from the trial court’s grant of summary judgment in favor of defendant Stillwater Medical Center (SMC). The issue on appeal is whether SMC is a “political subdivision” for purposes of the Governmental Tort Claims Act; if so, Elledge’s lawsuit is untimely. Based on our review of the record and applicable law, we affirm.

¶ 2 The dispositive facts are undisputed. Shannon Elledge filed a petition against SMC and Dr. Lloyd Bernard Moore, Jr., asserting he received negligent care while Elledge was a patient in SMC’s emergency room. Elledge’s wife Brigitte also sued, for loss of consortium.

¶ 3 Indisputably, Elledge did not file written notice of his claim pursuant to the Governmental Tort Claims Act, 51 O.S.2001 §§ 151 through 172, within one year after his loss occurred. Under the Act’s notice provision in § 156(B), a claim against the state or a political subdivision that is not presented within one year is forever barred.

¶ 4 SMC filed a motion for summary judgment, asserting that it was a political subdivision under the Act, meaning Elledge’s lawsuit was subject to the Act and thus was barred. Elledge responded by asserting SMC was an illusory trust, and not subject to the Act.

¶ 5 The trial court granted SMC’s motion for summary judgment. Elledge appeals. Though the trial court’s order did not dispose of Elledge’s claim against Dr. Moore, the trial court subsequently issued an order certifying the order for immediate appeal pursuant to 12 O.S.2001 § 994. Therefore, this appeal can proceed.

¶ 6 Because there is a complete absence of disputed material facts, this is an appropriate case for summary judgment. Cordes v. Wood, 1996 OK 68, ¶ 6, 918 P.2d 76, 78. The question presented is one of law; therefore, our standard of review of the trial court’s decision is de novo. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 (approved for publication by order of the Oklahoma Supreme Court). Additionally, whether SMC is a true public trust and therefore a political subdivision for purposes of the Act, is also a question of law. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

¶ 7 “Political subdivision” is defined in § 152(8) of the Act. At one time, the definition simply included a public trust where a city, town, school district, or county was a beneficiary. In 1984, the legislature amended the definition to explicitly exclude hospitals operating under a trust authority. Then, in 1987, the legislature adopted the current version of § 152(8), which includes the following definition of “political subdivision”:

d. a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. For purposes of The Governmental Tort Claims Act, a public trust shall include a municipal hospital created pursuant to Section 30-101 et seq. of Title 11 of the Oklahoma Statutes, a county hospital created pursuant to Section 781 et seq. of Title 19 of the Oklahoma Statutes, or is created pursuant to a joint agreement betiveen such governing authorities, that is operated for the public benefit by a public trust created pursuant to Section 176 et seq. of Title 60 of the Oklahoma Statutes and managed by a governing board appointed or elected by the municipality, county, or both, who exercises control of the hospital, subject to the approval of the governing body of the municipality, county or both[.]

Title 51 O.S.2001 § 152(8)(emphasis added).

¶ 8 Indisputably, SMC is a public trust created pursuant to Title 60. Its sole beneficiary is the City of Stillwater. Under its trust indenture, SMC is operated and managed by a governing board of trustees whose members are appointed or approved by Stillwater’s city commission, which is Still-water’s governing body. The city commission has the authority to remove a trustee without cause. All of these uncontroverted elements support SMC’s position that it is a “political subdivision.”

¶ 9 In response, Elledge asserts SMC is actually an illusory trust. He points out that under the trust indenture the city has no claim to the trust’s income and no authority to transact the trust’s business. He also points to the fact that the city exercises no control over SMC’s finances in that it makes no payments to SMC nor receives any revenue from SMC. Furthermore, the city exercises no control over hiring decisions. For authority, Elledge relies on Roberts v. South Oklahoma City Hospital Trust, 1986 OK 52, 742 P.2d 1077, and Fowler v. Norman Municipal Hospital, 1991 OK 30, 810 P.2d 822.

¶ 10 The problem with Elledge’s argument is that, as SMC points out, those cases applied a pre-1987 version of the statutes. The factors he emphasizes were relevant under the “control test” set forth in those cases. However, current public trust law states, at 60 O.S.2001 § 176.1(D):

Except where the provisions of the trust indenture or of Section 170 et seq. of this title, or of any other law written specifically to govern the affairs of public trusts, expressly requires otherwise, the affairs of the public trust shall be separate and independent from the affairs of the beneficiary in all matters or activities authorized by the written instrument creating such public trust including, but not limited to, the public trust’s budget, expenditures, revenues and general operation and management of its facilities or functions; provided, that either the public trust or the beneficiary may make payment of money to the other unless prohibited by the written instrument creating such public trust or by existing state law.

¶ 11 Reading this statute in conjunction with § 152(8) of the Act leads to the conclusion that the legislature intended to extend the Act’s coverage to public trust hospitals that controlled their own budget and performed other management functions as provided by general public trust law. The relevant inquiry under current law is whether the exercise of control by SMC’s trustees is “subject to the approval” of the city’s governing body, as required by § 152(8)(d).

¶ 12 “Approval” means to confirm or to give formal sanction. Black’s Law Dictionary 98 (7th ed.1999). Put another way, it means the authority to veto an action, not compel it. See, e.g., In re Lawyers Mortgage Co., 293 N.Y. 159, 56 N.E.2d 305 (1944).

¶ 13 The fact that a statute provides that a party’s right to act is subject to the approval of some higher authority does not mean that approval is a condition precedent to the action becoming valid or effective. Instead, it places the right to act under the “inquisitorial power” of the higher authority to ensure that any challenged or questionable act is consistent with the statutory purpose. See Cranmer v. Fidelity & Cas. Co., 18 So.2d 220, 222 (La.Ct.App.1944).

1114 A similar conclusion was reached by the New Mexico Supreme Court in construing an act of Congress granting the state the right to select from federal lands “subject to the approval of the Secretary of the Interi- or.” The court held that the state could validly lease such selected lands even if the selection had not received the Secretary’s approval at the time of the lease. The court concluded that approval was not the power to validate the selection, but the duty to “investigate and pass upon and render judgment as to whether the lands selected are within the terms of the grant.” Makemson v. Dillon, 24 N.M. 302, 171 P. 673, 676 (1918).

¶ 15 We hold that the legislature used “approval” in the current version of § 152(8) of the Act in the foregoing sense. The statute’s “political subdivision” definition does not contemplate complete accountability by a trust, nor absolute control by a beneficiary. It intends general oversight by the beneficiary to ensure compliance with the trust indenture and the public trust statutes. In the absence of specific statutory directions, the manner in which such oversight needs to be carried out is a matter for the municipal beneficiary to determine.

¶ 16 Elledge failed to prove this oversight is nonexistent. Specifically, he must prove that the city failed to approve some specific act for which approval was required by the trust document or the statutes, or refused to review some specific challenged or questionable act of the trustees. This, he has not done.

¶ 17 In short, nothing in the record controverts SMC’s status as a political subdivision under the Act. Accordingly, the trial court’s judgment is affirmed.

¶ 18 AFFIRMED.

RAPP, J., concurs, and COLBERT, P.J., concurs in result.