source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2004 WY 43
    In the Matter of the Statement of Termination of Richard S. DAVIS, Appellant (Petitioner), v. CITY OF CHEYENNE, Appellee (Respondent).
    No. 03-100.
    Supreme Court of Wyoming.
    April 21, 2004.
    Rehearing Denied May 18, 2004.

      Representing Appellant: J.C. DeMers, Cheyenne, Wyoming.
    Representing Appellee: William G. Hib-bler, Special Assistant City Attorney, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, KITE and VOIGT, JJ., and YOUNG, D.J.
   KITE, Justice.

[¶ 1] The City of Cheyenne (City) terminated Richard S. Davis (Davis) from his employment as transit manager after four years. Following a hearing, the Cheyenne personnel commission (commission) affirmed the termination decision. Mr. Davis sought review in district court, which affirmed the decision of the commission. Claiming the commission erred in several respects and its decision was not supported by substantial evidence, Mr. Davis appeals to this Court. We find no error and affirm.

ISSUES

[¶2] Mr. Davis raises the following issues:

A. Did the Personnel Commission agency’s failure to address numerous issues constitute an arbitrary and capricious action in violation of Appellant’s right to a fair hearing?
B. Were the contested case proceedings conducted in a manner contrary to law or deny Appellant due process by considering allegations not specified in the notice of termination?
C. Did the Personnel Commission commit errors of law or violate its own rules and regulations to the detriment of Appellant?
D. Did the violation of its own rules by the City of Cheyenne deny Appellant due process by improperly determining that matters were final and non-appealable?
E. Did the Cheyenne Personnel Commission violate Appellant’s First Amendment right to free speech or take action on the basis of other protected communications, thereby requiring reversal of its determination to approve the employment termination?
F. Were the agency findings supported by substantial evidence and sufficiently detailed as required by the Administrative Procedures Act?
G. Did the accumulation of error create a reasonable possibility that in the absence of error the outcome may have been more favorable to Appellant or result in damage to the integrity, reputation and fairness of the justice process?

[¶ 3] The City states the issues as follows:

I. Whether the City of Cheyenne’s Personnel Commission violated Appellant’s due process rights when it terminated his employment with the City.
II. Whether the decision of the Personnel Commission is based on substantial evidence.
III. Whether the City of Cheyenne denied Appellant’s free speech rights.
IV. Whether the Personnel Commission properly declined to decide if Appellant’s termination constituted a violation of federal law.

FACTS

[¶4] Mr. Davis was hired as the transit manager for the City in November 1997. He received written notification of his termination on December 3, 2001. Among the reasons given for his termination were failure to timely submit a report upon which federal grant money was dependent, allegations by female employees that he engaged in sexual harassment, allegations that he engaged in non-work related activities during work hours, unprofessional and antagonistic communication with the city attorney’s office, failure to communicate effectively with his employees and his supervisor’s loss of confidence in Mr. Davis’ ability to effectively manage the transit division.

[¶ 5] In accordance with the personnel rules, Mr. Davis requested a hearing before the commission to contest the termination. A hearing was held on February 19, 2002. The commission heard the testimony of seven city employees, including Mr. Davis. After the hearing, on April 24, 2002, the commission issued findings of fact, conclusions of law and an order affirming Mr. Davis’ termination.

STANDARD OF REVIEW

[¶ 6] We review agency action following contested case hearings in accordance with Wyo. Stat. Ann. § 16 — 3—114(c) (LexisNexis 2003), which provides:

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

State ex rel. Department of Transportation v. Legarda, 2003 WY 130, ¶ 9, 77 P.3d 708, ¶ 9 (Wyo.2003). Our review is also governed by the following standards:

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

Id., ¶ 10. To survive judicial review, the record of a contested agency action must contain such factual findings as would permit a court to follow the agency’s reasoning from the evidentiary facts on record to its eventual legal conclusions. Newman v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 2002 WY 91, ¶ 16, 49 P.3d 163, ¶ 16 (Wyo.2002). Similarly, a contested case hearing must provide, and the record of that proceeding must document, information sufficient to the making of a reasonable decision. Absent such information, the agency decision must be set aside. Id.

[¶ 7] Of further relevance to our review, we have said:

In contested cases conducted before administrative agencies, the deference that normally is accorded the findings of fact by a trial court is extended to the administrative agency, and we do not adjust the decision of the agency unless it is clearly contrary to the overwhelming weight of the evidence on record. This is so because, in such an instance, the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses.

Id., ¶ 26. With these standards in mind, we address Mr. Davis’ claims in the order he raises them.

DISCUSSION

1. Denial of due process by agency’s failure to address Mr. Davis’ proposed ñndings and conclusions

[¶ 8] Mr. Davis claims the commission violated his right to due process in not addressing his proposed findings of fact and conclusions of law in its written decision. After the hearing, the commission ordered Mr. Davis and the City to submit proposed findings of fact and conclusions of law. The commission did not incorporate Mr. Davis’ proposed findings and conclusions in its written decision and he asserts there is nothing in the record demonstrating it considered them. He further asserts the record is silent as to the commission’s reasons for rejecting them. He claims the absence of such from the record shows the commission acted arbitrarily and capriciously in upholding his termination.

[¶ 9] The City contends the commission had no obligation to adopt Mr. Davis’ proposed findings and conclusions and was entitled to give them the weight it felt they deserved. The City further asserts there is no authority for Mr. Davis’ argument that an agency violates due process or acts arbitrarily and capriciously by declining to adopt a party’s findings and conclusions. Finally, the City argues there is no evidence that the commission did not consider Mr. Davis’ findings and conclusions in reaching its decision.

[¶ 10] Wyo. Stat. Ann. § 16-3-110 (LexisNexis 2003) addresses findings of fact and conclusions of law made by an agency following contested case hearings. ' That section provides in relevant part:

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

Applying this provision, we have said an agency is required to make findings of basic facts upon all material issues and upon which-its ultimate findings of fact or conclusions are based. Scott v. McTieman, 974 P.2d 966, 969 (Wyo.1999). We also have said each ultimate fact or conclusion must be thoroughly explained in order to facilitate judicial review. Legarda, ¶ 13. We have not said, and the statute does not require, that an agency must expressly state why it rejected a party’s proposed findings of fact and conclusions of law, nor have we concluded that the failure to do so constitutes a violation of due process or is arbitrary and capricious. It would seem to be implicit in an agency’s adoption of one party’s findings and conclusions that the agency did not find persuasive the evidence presented in support of the opposing party’s proposed findings and conclusions. Absent some direct evidence that a party’s proposed findings were given no consideration, an agency’s failure to adopt or address them does not equate with arbitrariness.

[¶ 11] Mr. Davis filed twenty-three pages of proposed findings and conclusions. In his argument before this Court, he does not identify which of those proposed findings and conclusions the commission improperly failed to consider or include in its findings and conclusions. Reviewing them in their entirety, some of Mr. Davis’ findings are immaterial to the issue of whether his termination was warranted. For example, Mr. Davis’ findings include a paragraph describing his work history prior to becoming transit manager and several more paragraphs identifying his accomplishments while serving as transit manager. While such evidence was relevant and admissible at the hearing, it is not material to this Court’s understanding of the commission’s reasoning for affirming the termination. Other of Mr. Davis’ findings allege facts that were not established by or misstate the evidence presented. Still others are more in the form of conclusions of law than findings of fact and are not an accurate statement of either. Some findings were more in the form of argument than actual facts shown by the evidence. One of his findings, for example, states: “It was reasonably expected by Mr. Davis that Ms. Jording would complete the Section 15 Report and have the report filed ... by October 28, 2001.” From our review of the record, we are not persuaded that the evidence established that Mr. Davis could have reasonably expected Ms. Jording to complete the report by October 28.

[¶ 12] In contrast, the findings of fact, conclusions of law and order issued by the commission comprised eleven pages. Although many of the findings appear to be taken from the City’s proposed findings, the evidence in the record directly supports those findings, they bear on material issues in the proceeding and clearly form the basis for the. commission’s ultimate findings and conclusions. Additionally, the commission’s findings of basic fact, together with the record before us, provides a rational basis from which this Court is able to follow the commission’s reasoning from the evidentiary facts on record to its eventual legal conclusions. We have said:

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

Legarda, ¶ 13. We hold the commission met this standard — it made findings of basic facts upon all the material issues in the proceeding and upon which its ultimate findings and conclusions were based. From reviewing the record and the commission’s findings, we are able to discern why the commission affirmed the termination. The commission’s findings give us an adequate basis upon which to review its ultimate findings and conclusions. Therefore, Mr. Davis’ first claim is without merit.

2. Error in commission’s consideration of allegations not contained in termination notice

[¶ 13] Mr. Davis contends the commission improperly considered evidence of alleged misconduct that was not contained in the termination notice. Specifically, Mr. Davis refers to the commission’s finding that he used a computer belonging to the City to send an e-mail message to his wife in which he referred to an assistant city attorney as “an incompetent *_*_* — *—*—*—*!!!” Based upon this finding of fact, the commission concluded Mr. Davis violated city personnel rules prohibiting use of city property for personal business and requiring employees to work cooperatively and harmoniously with other employees. He asserts the commission’s reliance on this evidence as a basis for affirming his termination violated the City’s personnel rules and his constitutional right to due process, and was arbitrary and capricious.

[¶ 14] The City concedes that Mr. Davis had a property interest in his employment as transit manager entitling him to due process. The City argues, however, that no violation of city rules or due process occurred nor was the commission’s reliance on the evidence arbitrary and capricious because Mr. Davis had adequate notice that the City intended to use the e-mail and then placed the e-mail into evidence himself. As evidence of adequate notice, the City points to the statement of termination paragraph referencing Mr. Davis’ alleged participation in non-work related activities as one of the reasons for his termination and its disclosure statement submitted in advance of the hearing, which it asserts included a copy of the e-mail.

[¶ 15] The termination notice did not specifically enumerate the non-work related activities that Mr. Davis admitted he engaged in during work hours. Instead, the notice stated as the third reason for termination:

Allegations by three employees that you play games on your Palm Pilot and participate in other non-work related activities during duty hours for which you were issued a letter of reprimand on September 28, 2001. (Violation of City Personnel Rules and Regulations, Chapter XII, Section 1 A.11.) (emphasis added).

Chapter XII, Section 3.C of the personnel rules provided in relevant part:

Prior to dismissing an employee, the employee’s department head and the personnel director will meet with the employee and explain the reasons for the intended action, providing an opportunity for the employee to respond to the proposed termination. The employee will receive a written statement of termination that provides notification of the reasons for the proposed action and an effective date....

The Wyoming Administrative Procedures Act further provides:

§ 16-3-107. Contested cases; general procedure.
(a) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice served personally or by mail.
(b) The notice shall include a statement of:
(iv) A short and plain statement of the matters asserted.

[¶ 16] It was not until after Mr. Davis’ termination, in the City’s pre-hearing disclosure statement, that the “other non-work related” activities were identified. Then, Mr. Davis admitted that he did cross word puzzles, personal bank business and personal e-mails during work hours. Mr. Davis was not informed specifically about the e-mail until after his December 3 termination. It is this lack of notice that he claims was arbitrary and capricious and violated the personnel policies and due process.

[¶ 17] We said in Lucero v. Mathews, 901 P.2d 1115, 1120 (Wyo.1995) that public employees must be given notice sufficient to afford them a reasonable opportunity to know the claims of the opposing party and meet them. “The notice must contain adequate and specific notice of the charges for which the employee is being terminated.” Id. The notice must be sufficient to afford the employee “a real and meaningful opportunity to respond to every charge or allegation brought against him as a basis for termination.” Id. Absent an opportunity to respond to every allegation that is the basis for termination, a public employee has not been given a real and meaningful opportunity to be heard and is deprived of due process. Id.

[¶ 18] Based on these standards, we held in Powell v. Board of Trustees of Crook County School District No. 1, 550 P.2d 1112 (Wyo.1976) that the school board violated an employee’s due process when it charged him with violating policies involving student discipline and then, without notice or a hearing, terminated him for inability to control student conduct. Quoting Glenn v. Board of County Commissioners, Sheridan County, 440 P.2d 1, 4 (Wyo.1968) we said: “The important question is whether the parties had fair notice of the issues involved.”

[¶ 19] We hold that Mr. Davis’ due process rights were not violated by the City’s failure to specifically reference the e-mail to his wife in the December 3 termination notice. The termination notice mentioned Mr. Davis’ use of his palm pilot “and other non-work related activities,” putting him on notice that the palm pilot was not the only non-work related activity at issue. By the time of the hearing, Mr. Davis was aware that the City had listed the e-mail as an exhibit and intended to rely upon it as one of the reasons for his termination. Mr. Davis raised no objection to the e-mail prior to or during the hearing. The record supports the commission’s decision affirming the termination.

3. Violation of personnel rules to Mr. Davis’ detriment

[¶ 20] Mr. Davis claims the City violated the personnel rules and his right to due process in failing to follow the progressive discipline procedure contained in the rules. Specifically, he claims the City violated Section 3.A of the personnel rules, which provided:

Written reprimand. A supervisor may censure an employee for cause by providing a written reprimand (correction interview) to the employee specifying the reasons) for the reprimand, noting previous verbal warnings or discussions, as appropriate, and informing the employee of the corrective action necessary to avoid further discipline. The original of the written correction interview will be placed in the employee’s file in the Human Resources Office.

Mr. Davis asserts the City did not issue a letter of reprimand within the meaning of this provision and it was error for the commission to conclude otherwise and to further conclude that he did not timely grieve the letter, making it final and non-appealable.

[If 21] Mr. Davis also contends the City violated the personnel rules governing investigations of sexual harassment allegations. He claims the city attorney’s office did not adequately perform or document its investigation as required by Section 3.F.4 of the personnel rules, which states:

During the investigation, reasonable efforts to substantiate the allegation will be made, including objective examination of the conduct of all involved parties, and detailed documentation by the investigator of all investigatory action taken, including express documentation of the investigation results.

Mr. Davis asserts, because of the City’s failure to comply with its rules, the commission should not have considered the results of the investigation. Mr. Davis also claims there was no credible evidence establishing that his use of his palm pilot and the other non-work related activities to which he admitted constituted unsatisfactory work performance within the meaning of Chapter XII, Section l.A.ll.

[¶ 22] The City argues that the personnel rules did not require a letter of reprimand to be placed in Mr. Davis’ file. The City contends such action is discretionary, as evidenced by the use of the word “may” in the first sentence of Section 3.A. The City further contends Mr. Smith’s decision not to place the reprimand in Mr. Davis’ file has no bearing on whether his termination was warranted. Finally, the City claims the question of whether Mr. Davis grieved or appealed the reprimand is irrelevant to the issue of whether he was properly terminated for conduct that he admitted to at the hearing. Essentially, the City contends there was sufficient evidence warranting Mr. Davis’ termination for cause without the administration of discipline in progressive stages.

[¶ 23] We agree that the City was not required under the personnel rules to issue Mr. Davis a letter of reprimand or administer discipline in progressive stages. The rules are clear that while the department head was expected to attempt to follow progressive discipline procedures, immediate termination was permissible in some circumstances. Section 2.A of the rules provided:

A. The department head shall, except in cases of flagrant employee behavior where termination would appear to be a reasonable result for this type of action, attempt to administer employee discipline in progressive stages to seek corrective results....
B.... Depending on the severity of the action, any step in Section 3 may be utilized.

Section 3 provided for three types of discipline — written reprimand, suspension and termination. Section 3.C.1 allowed the department head the discretion to terminate an employee “if the nature and extent of the just cause is such that other disciplinary action is not appropriate.”

[¶ 24] The record in this case reflects that Mr. Davis was counseled in September 2001 concerning allegations of sexual harassment and mismanagement, which had resulted in a loss of confidence in him by his subordinates. The record also reflects that two months later the City learned that the transit department, under Mr. Davis’ management, failed to complete a report upon which a $600,000 grant was dependent. Although Mr. Davis testified that he delegated the responsibility for preparing and submitting the grant to his subordinate, other evidence established that the responsibility for preparing grants was one of the transit manager’s essential functions and the City paid for Mr. Davis to receive training in preparing the grant. From the evidence in the record before us, we are not inclined to second-guess the commission’s conclusion, based upon its observation of the witnesses and opportunity to weigh their credibility, that termination without further warning or suspension was warranted and in compliance with the personnel rules.

4. Violation of Mr. Davis’ First Amendment right to free speech

[¶25] Mr. Davis asserts the commission violated his right to free speech in that its decision to uphold his termination was based in part on protected communications with the city attorney’s office on matters of public concern (i.e. access of disabled persons to public pedestrian routes and safety issues) and a protected communication with his wife, which he alleges also involved a matter of public concern (the competency of the city attorney). The City responds alternatively that the speech at issue was not protected, this Court should decline to address the question because it was not raised below and this Court cannot consider the question because it is not properly before us.

[¶ 26] Our general rule is that we will not consider claims raised for the first time on appeal. Cooper v. Town of Pinedale, 1 P.3d 1197, 1208 (Wyo.2000). We recognize only two exceptions to that rule: when the issue raises jurisdictional questions or it is of such a fundamental nature that it must be considered. Id. On this basis, in WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998), we declined to consider a substantive due process claim because it was not raised below. We said: “This court has taken a dim view of a litigant trying a case on one theory and appealing it on another.... Parties are bound by the theories they advanced below.” Id.

[¶ 27] Mr. Davis did not claim his First Amendment rights were violated in the hearing before the commission. The first mention of such a violation occurred in his petition for review to the district court. The authority of the district court, and this Court, is limited to the issues raised before the agency. Fisch v. Allsop, 4 P.3d 204, 209 (Wyo.2000). Because Mr. Davis did not claim his First Amendment rights were violated when the commission heard the matter, we decline to address the issue.

5. Agency findings not supported by substantial evidence

[¶ 28] Mr. Davis claims the commission’s findings 5 through 21 were not supported by substantial evidence and are fatally flawed because they assert ultimate facts rather than basic facts as required by our holding in In re Billings v. State Board of Outfitters and Guides, 2001 WY 81, ¶ 14, 30 P.3d 557, ¶ 14 (Wyo.2001). The City asserts substantial evidence was presented that Mr. Davis violated several personnel rules and performed his job in a deficient manner fully justifying the commission’s decision to terminate him. The City further contends the commission’s order contains sufficient information about each ultimate fact for this Court to determine upon what basis it reached the ultimate facts and conclusions and, therefore, satisfies the requirements set forth in our prior case law.

[¶ 29] Having examined the entire record as we are required to do to determine whether there is substantial evidence to support the commission’s findings, we conclude the commission’s decision was supported by substantial evidence; that is, we find sufficient relevant evidence which a reasonable mind might accept as supporting Mr. Davis’ termination. There is a great deal more in the record before us than a scintilla of evidence supporting his termination. Although standing alone some of the reasons given by the City for terminating Mr. Davis in our view would not warrant termination, considering the record as a whole we hold that the decision to terminate was supported by substantial evidence. Giving due deference to the commission’s opportunity to weigh the evidence and determine the credibility of the witnesses, we hold the findings and conclusions are not clearly contrary to the overwhelming weight of the evidence on record.

6. Cumulative error

[¶ 30] Mr. Davis claims the accumulation of error in the commission proceedings necessitates reversal because a reasonable possibility exists that absent the error his termination may have been reversed or because the error damaged the integrity and fairness of the process. As set forth in the discussion above, we find in the record before us substantial evidence supporting the commission’s decision. Additionally, we are not persuaded from our review of the record that the commission committed error in the manner in which it addressed the issues as framed by Mr. Davis.

[¶ 31] Affirmed.

      . Wyo. Stat. Ann. § 16-3-107(o) also refers to findings as follows:
      (o) The record in a contested case must include:

      (iv) Any proposed findings and exceptions thereto:
      (v) Any opinion, findings, decision or order of the agency....

      . The September 28, 2001, letter also referenced Mr. Davis playing games on his palm pilot “or engaging in other activities not related to the job.” Like the termination notice, it did not enumerate the "other activities."

      . The City claims the e-mail was attached to its pre-hearing disclosure statement. The disclosure statement contained in the record before this Court has no attachments. However, it is apparent from the hearing transcript that Mr. Davis knew prior to his testimony that the City had submitted exhibits of e-mails from him to his wife.


author: HILL, Chief Justice. LEHMAN, Justice,

text:
    2004 WY 44
    Leslie McMACKIN, Personal Representative of the Estate of Harriette R. Brown, Appellant (Plaintiff), v. JOHNSON COUNTY HEALTHCARE CENTER, a Wyoming hospital district; Mark S. Schueler, M.D.; Lawrence E. Kirven, M.D.; Medical Associates of Johnson County, P.C.; Jennifer Sather, R.N.; and Vicki Blakely, L.P.N., Appellees (Defendants).
    No. 01-214.
    Supreme Court of Wyoming.
    April 22, 2004.
    Representing Appellant: Don W. Riske and James R. Salisbury of Riske & Arnold, P.C., Cheyenne, WY. Argument by Mr. Riske.
    Representing Appellees: Michael K. Davis of Yonkee & Toner, Sheridan, WY for Johnson County Healthcare Center, Sather, and Blakely; George E. Powers, Jr. of Sundahl, Powers, Kapp & Martin, Cheyenne, WY for Dr. Schueler; Jeffrey C. Brinkerhoff and Mistee L. Godwin of Brown, Drew & Massey, LLP, Casper, WY for Dr. Kirven and Medical Associates of Johnson County. Argument by Mr. Brinkerhoff.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] We previously reversed the district court’s order granting summary judgment in favor of Appellees, Johnson County Healthcare Center (JCHC), Mark Schueler, M.D. (Dr. Schueler), Lawrence E. Kirven, M.D. (Dr. Kirven), Jennifer Sather, R.N. (Nurse Sather), and Vicki Blakely, L.P.N. (Nurse Blakely). We determined that there were genuine issues of material fact precluding summary judgment and in doing so, we recognized what is known as the “loss of chance doctrine.” McMackin v. Johnson County Healthcare Center, 2003 WY 91, 73 P.3d 1094 (Wyo.2003). The facts of this case are set out in that opinion.

ISSUE

[¶ 2] JCHC, Drs. Schueler and Kirven, and Nurses Sather and Blakely filed a petition for rehearing; By order entered on September 4, 2003, we granted that petition for rehearing in part. The subject of the rehearing was limited to this issue:

This Court erroneously adopted the “loss of chance” doctrine in this wrongful death action which is governed by statutes permitting recovery only for an actual death proximately caused by fault and the adoption of this doctrine improperly constitutes a waiver of sovereign immunity which only the legislature can grant.

Our discussion will be strictly limited to that somewhat compound issue. We will, in essence, sustain our original decision and provide some further guidance to the parties and the district court. An outline of the resolution we will embrace is well articulated by McMaekin’s summary of her argument:

1.Under the approach to the loss of chance doctrine adopted by this Court in McMackin, as more fully described in McKellips v. Saint Francis Hospital, Inc., 741 P.2d 467, 474-77 (Okla.1987), Alberts v. Schultz, [1999-NMSC-015, ¶¶ 10-33, 975 P.2d 1279, ¶¶ 10-33 (NM 1999) ], and other authorities referred to in its opinion, the patient’s ultimate death, and not the lost chance itself, is the relevant harm when determining proximate cause.
2. Since the patient’s ultimate death, and not the lost chance itself, is the relevant harm under the loss of chance doctrine adopted by this Court (in those cases where death results from the lost chance), Appellant’s claims against Appellees are within the actions permitted under the Wyoming Wrongful Death statute, [Wyo. Stat. Ann. § 1-38-101 (LexisNexis 2003) ] and the' Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-109 and 110 (LexisNexis 2003).
3. A majority of other states have adopted the loss of chance doctrine; such states have wrongful death statutes identical or similar to Wyoming’s Wrongful Death statute, ... and such states have considered and rejected the arguments against such adoption urged by Appellees herein.
4. The “pure form” of the loss of chance doctrine, which recognizes a lost chance of survival as an injury apart from death, is distinct from the loss of chance doctrine adopted by this Court that only affects the quantum of proof needed to establish proximate cause in wrongful death cases alleging medical malpractice.
5. Application of the loss of chance doctrine in this case does not place Appellant’s claims outside of the immunity waiver of [Wyo. Stat. Ann. §§ 1-39-109 and 110].

STANDARD OF REVIEW

[¶ 3] A petition for rehearing is granted to address an assertion that this Court has erred in its resolution of the case. W.R.A.P. 9.07. The office of rehearing is to point out and have considered mistakes or errors of law or of fact, or both, which it is claimed the court has made in reaching its conclusion, or to present to the court and have considered some point which it overlooked or failed to consider, by reason whereof its decision is alleged to be erroneous. 5 C.J.S. Appeal and Error § 676 (1993); Elmer v. State, 466 P.2d 375, 376 (Wyo.1970), cert. denied, 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82 (1970).

DISCUSSION

Application of Wrongful Death Statute

[¶4] The argument presented conjures up a statutory hurricane from which we are asked to pluck a wind-borne feather. We are unable to spot a hurricane in that argument and are thus unwilling to grasp for the feather. As a beginning point, it is asserted that McMackin may not maintain a wrongful death claim in these circumstances. The relevant statute provides:

§ 1-38-101. Actions for wrongful death which survive; proceedings against executor or administrator of person liable.
Whenever the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action to recover damages if death had not ensued, the person who would have been liable if death had not ensued is liable in an action for damages, ■ even though the death was caused under circumstances as amount in law to murder in the first or second degree or manslaughter. If the person liable dies, the action may be brought against the executor or administrator of his estate. If he left no estate within the state of Wyoming, the court may appoint an administrator upon application.

Wyo. Stat. Ann. § 1-38-101 (LexisNexis 2003).

[¶ 5] In the original opinion we have adequately explained the foundations of, as well as the wide acceptance of, the loss of chance doctrine and we will not iterate that material here. Those same materials make clear that loss of chance resists precise definition and is subject to varying interpretations and different applications. In some jurisdictions it is allowed as a wrongful death action where the consequences of the negligent act(s) is, in fact, death. Where the result of the negligence is not death, traditional negligence/medical malpractice principles apply. In some jurisdictions, loss of chance claims are allowed as a survivorship ■ claim. In some jurisdictions it is treated as a common law cause of action or a stand-alone theory of recovery. We are comfortable that the loss of chance claim asserted in this matter fits within Wyoming’s wrongful death statute, although it may expand to some limited extent our previous pronouncements in this area of the law. We might retreat to a recognition of loss of chance as a stand-alone .theory or as a common law claim, but we are unable to. detect an erosion of the legislature’s intent or an intractable conflict with our existing precedents in ruling as we do. We are exhorted that the only injury that may be vindicated by the wrongful death statute is “death.” The recognition of Mrs. Brown’s loss of a.chance “to live,” as being actionable, within the context of the wrongful death statute, does not strain the bounds of reason, logic,-or the law.

[¶ 6] The Supreme Court of Wisconsin recognized that loss of chance has its roots in the Restatement' (Second) of Torts § 323(a):

... The majority of jurisdictions, however, have interpreted sec. 323(a) as lessening the plaintiffs burden of proof on causation .... Once the plaintiff shows that the defendant’s negligence' increased the risk that the plaintiffs injury would occur, sec. 323(a) allows the trier of fact to determine whether the negligence was a substantial factor in causing the injury....
This court has previously approved of sec. 323(a)....
We conclude that the evidence in this case was sufficient under current Wisconsin law to present the causation to the trier of fact. To establish causation in Wisconsin, the plaintiff bears the burden of proving that the defendant’s negligence was a substantial factor in causing the plaintiffs harm. “The phrase ‘substantial factor’ denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.”... “ ‘All that is required in negligence.cases is for the plaintiff to present probable facts from which negligence and causal relations may be reasonably inferred.’ ” ... One who negligently creates a dangerous condition may be held liable even though another cause is also a substantial factor in contributing to the result.... “There may be more than one substantial causative factor in any given case.”... The defendant’s negligent conduct need not be the sole or primary factor in causing the plaintiffs harm....
... We disagree that to establish causation the Ehlingers must show that proper diagnosis and treatment would have been successful. We conclude that in a case of this nature, where the causal relationship between the defendant’s alleged negligence and the plaintiffs harm can only be inferred by surmising as to what the plaintiffs condition would have been had the defendant exercised ordinary care, to satisfy his or her burden of production on causation, the plaintiff need only show that the omitted treatment was intended to prevent the very type of harm which resulted, that the plaintiff would have submitted to the treatment, and that it is more probable than not the treatment could have lessened or avoided the plaintiffs injury had it been rendered. It then is for the trier of fact to determine whether the defendant’s negligence was a substantial factor in causing the plaintiffs harm. [Emphasis in original. Internal citations omitted.]

Ehlinger v.Sipes, 155 Wis.2d 1, 454 N.W.2d 754, 758-59 (1990); also see Jorgenson v. Vener, 2000 SD 87, ¶¶ 10-20, 616 N.W.2d 366 ¶¶ 10-20 (S.D.2000).

[¶ 7] The statutory conflicts proposed to us do not require us to modify our original opinion. However, to further clarify our holding, we will note two further significant points. First, WCPJIC 3.04, at 18 (Revised April 1994) provides:

CAUSE — DEFINED
An injury or damage is caused by an act, or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about the injury or damage.

This instruction will work well with the concepts that inhere in the loss of chance doctrine. Some additional guidance in fashioning appropriate instructions can be found in Ronald W. Eades, Jury Instructions on Medical Issues, §§ 10-9 and 10-10 at 575-80 (1997 and Supp.2001):

10-9. “Loss of a chance.”
If you believe from the evidence the [state nature of defendant’s act or omission] increased the risk of [death] [the harm sustained] by significantly decreasing the patient’s chances of [survival] [recovery], you should find the defendant to be liable.
10-10. Loss of Chance — Damages based upon percentage amount of loss of chance of better result.
If you find from the evidence that [Defendant] was negligent in the treatment of [Plaintiff] and that this negligence was a substantial factor in reducing [Plaintiffs] chances of obtaining a better result, then you will award such damages as will fairly compensate [Plaintiff] for this loss of chance of a better result.

[¶ 8] A plaintiff is not required to establish the lost chance of recovery or survival in an exact percentage for the matter to be submitted to the jury. The jury is to consider evidence of percentages of the lost chance in the assessment and apportionment of damages. ' The damages recoverable by the plaintiff equals the total sum of the damages for the underlying injury or death multiplied by the percentage of the lost chance. Roberts v. Ohio Permanente Medical Group, 76 Ohio St.3d 483, 668 N.E.2d 480, 484-85 (1996).

[¶ 9] Finally, we take note that there is often a special need for expert testimony in loss of chance cases. As set out in J.D. Lee and Barry A. Lindahl, Modem Tort Law Litigation and Liability, § 25:92 at 25-120-21, (2002):

It is the general rule that expert testimony is required to establish the connection between the alleged negligence of the defendant and the illness, injury, or death of which the plaintiff complains.
However, where the matter is within common knowledge, the basis for the requirement of expert testimony is dissipated. The classic example of this exception is where a foreign object is left in the patient’s body. Thus, where a suture needle had been left in the patient’s body, expert testimony was held to be unnecessary to establish causation between the alleged negligence of the defendant doctor and the pain of which the plaintiff complained. In another case, expert medical testimony was held unnecessary to establish that a surgical error in one operation, a severed ureter, was the proximate cause for the plaintiff being hospitalized and undergoing a second operation.
Other illustrations of the exception to the rule requiring expert testimony include a case where the defendant physician was charged with having left the decedent, wounded by gunshot, unattended at a critical time; where the plaintiff was given the wrong injection and upon discovery was then given a second, or offsetting injection, a tranquilizer, and after being left unattended, tried to go to the washroom, fainted and fell, sustaining injuries; and where a delirious expectant mother fell from a bed in the obstetrical department labor room while the nurse assigned to the room was absent.

It is readily apparent that this case does not fit into one of the exceptions to the requirement for foundational expert testimony.

Application of Governmental Claims Act

[¶ 10] It is claimed our opinion does not give effect to the Wyoming Governmental Claims Act. The applicable portions of the Act are set out below:

§ 1-39-102. Purpose.
(a) The Wyoming legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity and is cognizant of the Wyoming Supreme Court decision of Oroz v. Board of County Commissioners, 575 P.2d 1155 (1978). It is further recognized that the state and its political subdivisions as trustees of public revenues are constituted to serve the inhabitants of the state of Wyoming and furnish certain services not available through private parties and, in the case of the state, state revenues may only be expended upon legislative appropriation. This act is adopted by the legislature to balance the respective equities between persons injured by governmental actions and the taxpayers of the state of Wyoming whose revenues are utilized by governmental entities on behalf of those taxpayers. This act is intended to retain any common law defenses which a defendant may have by virtue of decisions from this or other jurisdictions.
(b) In the case of the state, this act abolishes all judicially created categories such as “governmental” or “proprietary” functions and “discretionary” or “ministerial” acts previously used by the courts to determine immunity ór liability. This act does not impose nor allow the imposition of strict liability for acts of governmental entities or public employees.

Of course, governmental entities such as JCHC and employees of governmental entities such as Nurses Sather and Blakely are immune from tort liability except as provided in the Act. Wyo. Stat. Ann. § 1-39-104 (Lex-isNexis 2003).

[¶11] Wyo. Stat. Ann. § 1-39-109 (LexisNexis 2003) provides:

§ 1-39-109. Liability; medical facilities.
A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any public hospital or in providing public outpatient health care.

[¶ 12] Wyo. Stat. Ann. § 1-39-110 (Lexis-Nexis 2003) provides:

§ 1-39-110. Liability; health care providers.
(a) A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity, including contract physicians who are providing a service for state institutions, while acting within the scope of their duties.
(b) Notwithstanding W.S. l-39-118(a), for claims under this section against a physician employed by the state of Wyoming based upon an act, error or omission occurring on or after 'May 1, 1988, the liability of the state shall not exceed the sum of one million dollars ($1,000,000.00) to any claimant for any number of claims arising out of a single transaction or occurrence nor exceed the sum of one million dollars ($1,000,000.00) for all claims of all claimants arising out of a single transaction or occurrence.

[¶ 13] We will address the issue only briefly. The contention is founded on the presumption that we are adopting a remedy that permits recovery where a less than fifty percent chance of avoiding death is lost. It is readily evident that that is not the case, both from our original opinion, and from the additional materials cited herein. The negligent act(s) must be a substantial cause (more likely than not) of the lost chance to survive. The damages to be awarded must be apportioned as more fully set out above. We conclude that McMackin’s claims are within the protection afforded by the Governmental Claims Act.

CONCLUSION

[¶ 14] Upon consideration of the briefs on rehearing and the accompanying argument, we sustain our original decision as augmented in this opinion.

HILL, C.J., delivered the opinion of the Court; LEHMAN, J., filed a dissenting opinion.

LEHMAN, Justice,

dissenting.

[¶ 15] In my dissent to the initial majority opinion issued by this court, McMackin v. Johnson County Healthcare Center, 2003 WY 91, 73 P.3d 1094 (Wyo.2003), I expressed that I would affirm the ruling of the district court granting summary judgment in favor of ■appellees. I reached this conclusion because appellant failed to present any expert opinion based on reliable scientific foundation and, thus, the majority’s reliance on the “loss of chance” doctrine was misplaced. Relying on this same foundation, I must accordingly again respectfully dissent with the majority’s reasoning as I continue to believe this case is not an appropriate case for the application of the “loss of chance” doctrine.


author: CARPENETI, Justice.

text:
    BRYNNA B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Division of Family & Youth Services, Appellee.
    No. S-11070.
    Supreme Court of Alaska.
    March 19, 2004.
    Rehearing Denied May 4, 2004.
    B.B., pro se.
    Michael G. Hotehkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

      Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Appellant Brynna B. unsuccessfully attempted to gain foster custody of her niece, Jaclyn, a child in need of aid who had been removed from the custody of her mother, Arlene B., Brynna’s twin sister. Brynna claims that the superior court misinterpreted AS 47.14.100(e)’s “relative placement preference” provision, and thus erroneously failed to reverse the state’s refusal to place Jaclyn in her care. Because it was not clearly erroneous to find that Brynna would likely ignore instructions not to place Jaclyn with Arlene, and because under the facts of this case this constitutes clear and convincing evidence that placing Jaclyn with Brynna would result in injury to the child, we conclude that the superior court properly upheld the state’s refusal to place Jaclyn in Brynna’s custody.

II. FACTS AND PROCEEDINGS

The State of Alaska, Department of Health and Social Services, Division of Family and Youth Services (DFYS) removed six-week-old Jaclyn from Arlene’s custody in May 2002. According to DFYS, medical providers had reported that, during her pregnancy with Jaclyn, Arlene repeatedly stated that “I hope this baby is dead.” Following Jaclyn’s birth, DFYS received reports from a doctor that Arlene believed that Jaclyn had colic and had stopped feeding her. The doctor also reported that Arlene did not understand how to change the baby’s diapers, despite repeated instructions, and was “scrubbing off the baby’s dead skin” instead of using lotion. Later, Arlene was reported to be “grossly overfeeding” Jaclyn, and said that “[t]he only way I can shut her the hell up is to feed her.” Arlene refused to cooperate with DFYS staff, requesting that they visit in the middle of the night because she slept through the day and claiming that “[y]ou people are just out to get me.” Arlene was diagnosed with depression, but refused to seek professional counseling or take prescribed medications.

Based on the record above, testimony presented by DFYS in a hearing on the matter, and “the behavior of [Arlene] in these proceedings,” the superior court upheld the decision to remove Jaclyn from Arlene’s custody. The court found probable cause to believe that Jaclyn was a child in need of aid under AS 47.10.011(1) and (ll). The court also found that DFYS had made reasonable efforts under the circumstances to prevent Jaclyn’s removal from Arlene’s home. The court explained:

continued placement in the home would be contrary to the welfare of the child because of the risk posed to the vulnerable infant by the mother’s inability to perceive danger to the child, her inability to retain information given to her on care for the child, her inability or refusal to follow directions given to her on care for the child, her anger management problems that pose a risk to the child, and her refusal to accept medication or counseling for her diagnosis of Severe Major Depression which could also affect her ability to adequately care [for] and protect her child.

The court granted DFYS custody over Jaclyn, who was placed in a foster home.

The superior court later upheld DFYS’s denial of a request by Lottie O., Jaclyn’s maternal grandmother, to place the child in her home. The denial was based on concerns about the proximity of Lottie’s residence to Arlene’s residence, concerns that Lottie would return the child to Arlene’s care and custody without the department’s consent, and concerns about the nature of Lottie’s motivation to cooperate with the department’s case plan. DFYS instead placed Jaclyn in Hawaii with her father, pursuant to a “Care and Safety Plan” containing detailed restrictions on the contact that the father could allow Arlene to have with the child. When Jaclyn’s father subsequently ignored the plan, and allowed Arlene unsupervised care and control of Jaelyn, Jaclyn was removed from her father’s custody, and returned to her previous foster home in Alaska.

Arlene’s twin sister Brynna then requested placement of Jaelyn. DFYS denied her request, based on concerns that Brynna and Arlene were closely aligned, concerns that if Jaclyn were placed with Brynna, the child might once again-be subjected to improper and dangerous contacts with Arlene, and concerns that Brynna would not cooperate with DFYS in obtaining services that Jaclyn required.

The superior court held a hearing to review DFYS’s refusal to grant Brynna’s placement request. At the hearing, witnesses described how Brynna had refused to allow social workers into Arlene’s home to remove Jaclyn, had threatened the staff at Jaclyn’s pediatrician’s office, and had been forcibly removed from DFYS premises and threatened with arrest, after antagonizing social workers during a supervised visit between Arlene and Jaclyn. Following the hearing, the court concluded that it had serious doubts about “[Brynna’s] ability to care for the child vis-a-vis protection from ... her sister, and work with the department.” The court therefore upheld DFYS’s placement decision. Brynna appeals.

III. STANDARD OF REVIEW

In a child in need of aid case, we will sustain a superior court’s findings of fact unless they are clearly erroneous. Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the party prevailing below leaves us “with a definite and firm conviction that a mistake has been made.” Thus, we will ordinarily not overturn a superior court’s findings based on conflicting evidence. The issue of whether a trial court’s findings satisfy the relevant statutory requirements is a question of law that we review de novo. In interpreting child in need of aid statutes and other laws, we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.

A DFYS placement decision is ordinarily reviewed by the superior court under the abuse of discretion standard. In this case however, the normal standards of review are superseded by statute. Alaska Statute 47.14.100(e) provides:

A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a relative by blood or marriage requests placement of the child in the relative’s home. However, the department may retain custody of the child and provide for its placement in the same manner as for other children if the department
(1) makes a determination, supported by clear and convincing evidence, that placement of the child with the relative will result in physical or mental injury; ... this determination may be appealed to the superior court to hear the matter de novo.

Thus, DFYS had the burden of proving by clear and convincing evidence that placement with Brynna would be physically or mentally detrimental to Jaclyn. The superior court reviews such a determination de novo. We use our independent judgment in reviewing the superior court’s decision.

IV. DISCUSSION

The Superior Court Properly Upheld the Department’s Refusal To Place Jaclyn in Brynna’s Custody.

Brynna claims that, as Jaclyn’s blood relative, she is entitled to custody of Jaclyn under AS 47.14.100(e). DFYS and the superior court disagreed. The superior court upheld DFYS’s denial of Brynna’s placement request based on its determination that Brynna was unwilling to implement DFYS’s case plan for Jaclyn. The court found Bryn-na unable to work with DFYS staff. As it explained, “[s]he doesn’t trust them. She thinks they’re racist. She doesn’t have any belief in the legitimacy of what they’re doing. She feels very wronged on behalf of her sister.” The court conceded that Brynna is “utterly entitled to those beliefs,” and that “there is no reason why one can’t fundamentally believe that the department is doing the wrong thing and nevertheless work with the department.” But the court noted that “this hasn’t been the history of this case to date,” and “at bottom, the track record with respect to [Brynna’s] dealings with the key DFYS people are that she can’t work with them.” Accordingly, the court upheld DFYS’s denial of placement.

Brynna essentially argues on appeal that DFYS did not present adequate evidence that she would fail to abide by the provisions of Jaclyn’s case plan. Brynna has presented some evidence that she would cooperate with DFYS and follow Jaclyn’s case plan, but DFYS presented significant evidence to the contrary.

Social worker Sharon Chambers testified that when she attempted to remove Jaclyn from Arlene’s custody, Arlene, Lottie, and Brynna were “belligerent,” “refused to allow the social workers ... into the home,” slammed the door in her face, would only cooperate with the state trooper who was present, and were threatened with arrest for their refusal to cooperate. On the same day, Arlene and Brynna went to the office of Dr. Karen Impson, Jaclyn’s pediatrician. Dr. Impson testified that the sisters’ behavior was so threatening that the police were called to escort them from the building. The office manager then escorted the staff from the building by a separate exit, and instructed them to drive in separate directions and not to drive home in their normal pattern. The office subsequently obtained a restraining order against Brynna and Arlene.

DFYS also presented testimony regarding incidents that occurred while Jaclyn was in foster care. On two occasions Brynna accompanied Arlene on supervised visits with Jaclyn at the DFYS office. Brynna and Arlene accused DFYS of abusing Jaclyn, which led to escalating shouting and chaos in the office. DFYS social worker Lori D’Amico testified that the sisters played loud music during their visits with Jaclyn and that Jaclyn would often be screaming after the visits. D’Amico testified that during one of the visits she had to call the police in order to get Brynna and Arlene off of the premises. According to D’Amico, when the sisters were asked to end the visit and return Jaclyn, they “huddled in a corner ... and absolutely refused to give her back to us.” Brynna then had to be forcibly removed from the premises by the police. After the visit, Jaclyn was “crying so hard that [she had] a hard time catching [her] breath” for twenty minutes after Arlene and Brynna left.

Following the chaotic first visit, DFYS told Arlene that she could visit with Jaclyn, but that she could not bring any family members with her. Arlene entered the building alone, but Brynna was waiting outside in the car and at some point Arlene motioned for Bryn-na to bring a camera into the building. Brynna brought the camera in and gave it to Arlene. When D’Amico asked Brynna to leave, she put her foot inside the door. D’Amico “asked her several times to remove her leg and leave the building,” and then threatened to call the police again, at which point Brynna “[said] she didn’t want to be arrested and she left.”

In light of this evidence, the superior court’s findings are not clearly erroneous. The critical question for us, then, is whether the unlikelihood that Brynna will cooperate with DFYS or follow Jaclyn’s case plan constitutes clear and convincing evidence that Jaclyn would be mentally or physically injured if placed in Brynna’s custody.

Brynna claims that “the state provide[d] no evidence to even suggest” and the superi- or court “never found clear and convincing evidence” that placing Jaclyn in her custody would cause physical or mental injury to Jaclyn. She claims that both DFYS and the court based their conclusions on assumptions. It is ■ true that DFYS presented no direct evidence that Brynna’s potential failure to abide by Jaclyn’s case plan would injure the child. Instead, D’Amico explained to Brynna-that “you’re aligned with your sister, and ... if she was unsafe with her child, we do not think you would be protective. We cannot place with relatives unless we feel they are protective of the children. And that is the bottom line.” Inherent in the court’s decision is its agreement with DFYS that Bryn-na’s failure to follow Jaclyn’s case plan would in fact expose the child to injury. As the court explained to Arlene, “the department had clear and convincing evidence to demonstrate that that placement was not going to work to protect your baby from you.”

The issue then is whether DFYS and the superior court properly inferred harm to Jaclyn based only on Brynna’s likely non-compliance with Jaclyn’s case plan. We have not previously considered whether a trial court may disregard the relative placement preference law based on a foster parent’s likely non-compliance with a DFYS case plan. But the state obviously may base child placement and foster care decisions on the likelihood of future harm to a child. An unwillingness to cooperate with DFYS or to abide by its case plans is generally a strong indicator of future harm. As one DFYS social worker explained, when a child is placed with someone who ignores placement restrictions or rules, there is a danger that the child will not receive “the appropriate services or treatment that are needed to ensure the safety of the child.”

A comparison with the legal standard for terminating parental rights is instructive. A parent’s unwillingness to abide by a case plan may be considered part of the clear and convincing evidence of harm to a child that the state must show in order to terminate the parent’s lights and responsibilities regarding that child. Since denying child placement with a relative requires the same “clear and convincing evidence” as the termination of parental rights, there is no logical reason not to consider unwillingness to abide by a case plan in foster placement decisions as well. The superior court correctly held that Brynna’s likely refusal or inability to keep her sister Arlene away from Jaclyn, in contravention of DFYS instructions, constituted clear and convincing evidence that Jaclyn would be injured by placement with Brynna.

V. CONCLUSION

The superior court did not commit clear error in determining that Brynna would fail to keep Jaclyn separated from Arlene as required by Jaclyn’s case plan. This likely failure to abide by the case plan constitutes clear and convincing evidence of probable future physical or emotional harm to Jaclyn. The superior court therefore justifiably upheld the state’s denial of Brynna’s request to place Jaclyn in her custody, and we AFFIRM the decision of the superior court.

      . Pseudonyms have been used to protect the identity of the family members.

      . This office is now known as the Office of Children's Services (OCS), but we refer to it by the official name used in the proceedings below.

      . Alaska Statute 47.10.011(1) and (11) provide that the court may find a child to be in need of aid if it finds that:
      (1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter;

      (11) the parent, guardian, or custodian has a mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places the child at substantial risk of physical harm or mental injury[.]

      . Jaclyn has apparently been living with a paternal uncle since then. As DFYS notes, this case is thus arguably moot, since Jaclyn has already been placed in the foster care of a blood relative, albeit one other than Brynna. However, the uncle's family has informed DFYS that "they will no longer be able to provide care for the child due to recently diagnosed physical problems with the aunt,” and DFYS is currently investigating potential alternative placements for Jaclyn. The disputed issue in this appeal is thus capable of repetition, and we accordingly reach its merits. We also do so for the independent reason that a consistent theme of Brynna’s pro se appeal is that DFYS erred in not placing the child with her from the beginning.

      . A.B. v. State, Dep’t of Health and Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).

      . Martin N. v. State, Dep’t of Health and Soc. Servs., 79 P.3d 50, 53 (Alaska 2003).

      . A.B., 7 P.3d at 950 (quoting R.J.M. v. State, Dep’t of Health and Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).

      . Martin N., 79 P.3d at 53.

      . Id.

      . S.S.M. v. State, Dep’t of Health and Soc. Servs., 3 P.3d 342, 344 (Alaska 2000).

      . Matter of D.P., 861 P.2d 1166, 1167 (Alaska 1993) (internal citations omitted).

      . "Clear and convincing evidence has been characterized as evidence that is greater than a preponderance, but less than proof beyond a reasonable doubt.” Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994).

      . AS 47.14.100(e)(1).

      . Id.

      . A.B. v. State, Dep’t of Health and Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).

      . Brynna claims that she "had a legal right to have [Jaclyn] placed in [her] home” under the statute. Just as we construe adoption statutes to promote the best interests of adopted children, In re Adoption of Keith M.W., 79 P.3d 623, 637 (Alaska 2003) (Matthews, J., concurring), we similarly construe a foster placement statute in the best interests of the foster child, not the potential foster parent. It is the child's legal right to be placed with a relative, where such placement is not clearly injurious. It is not the relative's legal right to have the child placed with her.

      . In its ruling, the superior court expressed uncertainty over whether to review DFYS's decision for clear error, or to require DFYS to show clear and convincing evidence. The court accordingly ruled under both standards.

      . Because Brynna appears before this court pro se we hold allegations made in her brief to a less stringent standard than allegations made by a lawyer. See Prentzel v. State, Dep’t of Pub. Safety, 53 P.3d 587, 593 (Alaska 2002).

      . This is possibly what Brynna means when she argues that the superior court did not “have the power to create new laws or to add to old ones.”

      . See, e.g., M.W. v. State, Dep't of Health and Soc. Servs., 20 P.3d 1141, 1146 (Alaska 2001) (in determining whether DFYS made “reasonable efforts” to prevent out-of-home placement of child in need of aid, superior court may consider parent's unwillingness to "engage in his case plan”) (citing AS 47.10.088(a)(l)(B)(ii)). Other jurisdictions have found similarly. See, e.g., In re B.I.F., 592 S.E.2d 441, 2003 WL 22952568 (Ga.App.2003) (clear and convincing evidence of likelihood of serious harm to child included mother’s failure to complete her "reunification plan"); In re D.S.A., 113 S.W.3d 567 (Tex.App.2003) (evidence supporting termination of father's parental rights included his failure to meet requirements of "family service plan”); B.D.S. v. Calhoun County Dep't of Human Res., - So.2d -, 2003 WL 21770777 (Ala.Civ.App.2003) (in terminating parental rights over child not in parent's custody, courts may consider the "[l]ack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached ... with local departments of human resources”).

      . DFYS also argues that Brynna’s unwillingness to cooperate with the department is shown by her "campaign” against it, which included requesting internal agency investigations; writing letters to, filing complaints with, and attempting to subpoena numerous state and federal officials; protesting outside DFYS offices; and soliciting plaintiffs for a class action lawsuit against DFYS. Were this "campaign” the basis for the superior court's ruling, Brynna's assertion that the state is punishing her exercise of her First Amendment rights might have merit. However, the superior court itself expressed skepticism that Brynna's "campaign” could be a factor in determining that Brynna would not cooperate. There is no indication in the record that the superior court's decision was based on the "campaign.” Rather, the court stressed that its decision was based on Brynna's pattern of behavior in dealing with DFYS concerning Jaclyn.


author: MANNHEIMER, Judge.

text:
    Steven Bradley POWELL, Appellant, v. STATE of Alaska, Appellee.
    No. A-7920.
    Court of Appeals of Alaska.
    April 9, 2004.

      Paul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
    James J. Fayette, Assistant District Attorney, John J. Novak, Acting District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

On the evening of January 30,1999, Steven Bradley Powell was driving the streets of Anchorage with a blood alcohol level of .195 percent. He was heading east on Tudor Road, nearing the curve where Tudor Road becomes Muldoon Road. Powell was driving slightly over the speed limit, and the road surface was slick from freshly fallen snow. As Powell rounded the curve and began heading north, he lost control of his vehicle and slid into the on-coming lanes, striking three other vehicles. Powell injured four' people, two of them seriously.

Based on this incident, Powell was convicted of two counts of first-degree assault, one count of reckless endangerment, and one count of driving while intoxicated. And, based on these convictions, the superior court revoked Powell’s probation from a 1997 conviction for third-degree assault.

Powell’s two counts of first-degree assault were his fourth and fifth felony convictions. (In addition to his prior conviction for third-degree assault, Powell had two convictions for third-degree controlled substance misconduct (sale of cocaine).) Thus, Powell was a “third felony offender” for presumptive sentencing purposes.

Powell’s current felony offenses are class A felonies. Because he was a third felony offender convicted of a class A felony, Powell faced a presumptive term of 15 years’ imprisonment on each of the two counts of first-degree assault.

The superior court sentenced Powell to a composite sentence of 26 years’ imprisonment — 25 years for his four current offenses, and a consecutive 1 year of previously suspended jail time from his 1997 assault conviction. On appeal, Powell contends that this sentence is excessive.

Powell points out that neither this Court nor the supreme court has ever affirmed such a lengthy sentence for vehicular homicide, much less vehicular assault — that is, driving offenses that did not cause anyone’s death. Based on his criminal history (which we describe in detail below), Powell concedes that he could properly be sentenced to 20 years’ imprisonment (the maximum penalty for one count of first-degree assault). But Powell argues that a sentence of 26 years to serve is overly harsh.

Powell asserts — and the State essentially concedes — that his conduct in this ease, and the injuries he inflicted, are typical for a case of first-degree assault committed by an intoxicated driver. But the State argues that Powell’s criminal history reveals that he presents an extraordinary danger to the public, and that a composite sentence of 26 years’ imprisonment is therefore justified.

We have independently reviewed the record, and we agree with the State that Powell’s case presents an extraordinary instance where a 26 year composite sentence for vehicular assault is not clearly mistaken, even though Powell killed no one. We therefore affirm Powell’s sentence.

Powell’s criminal history

We have already summarized the facts of Powell’s current offenses. And, as we have explained, the State does not argue that Powell’s sentence is justified by the seriousness of his current offenses. Rather, the State essentially concedes that Powell’s current offenses are unremarkable among first-degree assaults committed by intoxicated drivers. Accordingly, we will not describe Powell’s current offenses in any further detail. Instead, we turn to an extensive examination of Powell’s criminal history.

The most salient aspect of that history is Powell’s eleven prior convictions for driving while intoxicated. Twice before, Powell had received the maximum sentence for DWI (1 year’s imprisonment). At Powell’s sentencing, the prosecutor presented a chart of these offenses; the prosecutor calculated that, starting in the year 1983, the average span between Powell’s release from custody and his next DWI offense was 88 days.

In addition, Powell has eight prior convictions for driving with a suspended or revoked license, one conviction for reckless driving, and one conviction for leaving the scene of an accident. Indeed, a witness who observed Powell at the scene of the accident in the present case testified that Powell was trying to restart his car and drive away. At the time of his current offenses, Powell’s driver’s license had already been revoked well into the twenty-second centuiy — i.e., past the year 2100.

Unfortunately, the two preceding paragraphs only begin to tell the story. Aside from his many driving offenses, Powell had several prior convictions for assault, and he also had convictions for disorderly conduct, making a false report, carrying a concealed weapon, resisting arrest, failure to appear, shoplifting, eluding a police officer, unsworn falsification, and criminal trespass.

Between 1978 and 1982 (that is, when Powell was between the ages of 17 and 21), Powell had two convictions for DWI, plus convictions for reckless driving, resisting arrest, and assault (for siccing a dog on two little girls). By 1983, Powell had accumulated his third and fourth DWI convictions, and he was ordered into alcohol treatment at Humana Hospital.

Between 1984 and 1985, Powell was convicted of eight more misdemeanors: a second reckless driving, plus disorderly conduct, making a false report, possession of a firearm while intoxicated, two counts of carrying a concealed weapon, assault, and assault on a police officer.

In 1985, Powell was arrested on two counts of selling cocaine. Following his arrest, Powell posted bail and then absconded to California. He committed his fifth DWI in Redding, California; when he was arrested, he gave the California authorities a false name. Then, after getting out of jail in California, Powell fled to Florida — where he committed his sixth DWI. As he had done in California, Powell gave a false name to the Florida authorities. And after the Florida court released him on probation, he absconded again.

In early 1986, Powell was making his way back to Alaska. In March, he was arrested in the State of Washington for driving with a suspended license. Later, he arrived in Haines — where he was convicted of assault. (The district court was apparently unaware of Powell’s record, because he received a suspended imposition of sentence for this crime.)

In May 1986, Powell was arrested in Anchorage on the felony warrant that had been issued the previous year when he jumped bail. Soon afterward, Powell was convicted of his first two felonies (two counts of third-degree controlled substance misconduct), but he received a relatively lenient sentence — 130 days in jail, with no probation. He was released from prison in September 1986. Seven months later, in April 1987, Powell committed another DWI, although he was never convicted of this charge. (The charge was ultimately dismissed in January 1988 because Powell was in federal prison, as described in the next paragraph.)

In June 1987, Powell got drunk at the Russian River and assaulted a federal fish and wildlife officer. The federal district court released Powell to the Glennwood Center (a treatment center), but Powell absconded. He fled Alaska, but he was soon arrested for shoplifting in Reno, Nevada — where he again gave a false name to the authorities. After serving his sentence in Nevada, Powell returned to Alaska (still on the run from his federal charges). He was arrested by federal marshals in October 1987, and the federal district court sentenced Powell to serve 11 months in prison. (This is apparently why the Municipality of Anchorage dismissed Powell’s pending DWI charge in January 1988.)

In November 1989, Powell was again arrested for DWI. He had run a red light, he was weaving between lanes, and his blood alcohol level was .229 percent. This became his seventh DWI conviction.

In February 1990, twenty days after completing his sentence for that seventh DWI conviction, Powell was once more arrested for DWI. The district court released Powell to the Salvation Army treatment program, but he absconded after one day. Following his recapture (described in the next paragraph), Powell was convicted of his eighth DWI for this February incident.

In June 1990, after eighty-one days as a fugitive from the February charge, Powell was arrested after the police stopped him for driving a vehicle with a cracked windshield. His blood alcohol level was .237 percent, and he gave a false name to the police. Based on this incident, Powell was convicted of DWI for the ninth time. But in July 1990, before that conviction was entered, and while Powell was on bail release, Powell got drunk and assaulted staff members at the Alaska Native Medical Center. (Again, Powell gave a false name when he was arrested.)

In November 1991, Powell drove while intoxicated and caused a collision. After the collision, Powell tried to switch seats with his passenger and thus avoid responsibility. Based on this incident, Powell was convicted of his tenth DWI.

In February 1992, Powell was convicted of leaving the scene of an accident and driving with a suspended license.

Powell was released from jail on April 1, 1993. Twenty days later, he was arrested for his eleventh DWI. While he was awaiting trial, Powell wrote letters to some friends, urging them to lie for him. Following his conviction, the Department of Corrections furloughed Powell to Akeela House (a treatment center). Within six weeks, Powell absconded. He remained a fugitive for five months. Following his arrest, he was convicted of DWI and escape.

Powell was released from prison in late 1994. In early 1995, he was arrested for driving with a suspended license. Later, in May 1995, he committed an assault on his father. Thirteen days after he was released on bail from this assault charge, he was arrested for shoplifting (when he again gave the police a false name).

After being convicted of these various offenses, Powell was again released from prison in May 1996. Seventeen days later, Powell assaulted his father again. He finished serving his sentence for this crime in July 1996. One week later, Powell was arrested twice for driving with a suspended license. The first time, the police gave him a citation and let him go; the second offense occurred six hours later.

Powell was arrested for the second offense, but after he posted bail, he absconded. He was arrested four weeks later in Tukwila, Washington, for assaulting his girlfriend. (Powell again gave the police a false name when he was arrested).

After spending a few days in jail in Washington, Powell returned to Anchorage. The police arrested him on his outstanding warrants in November 1996. During that arrest, Powell assaulted and threatened to kill one of the arresting officers.

Powell was released from prison on July 29, 1997. Two days later, the police were summoned to Powell’s residence because of a fight, and Powell was arrested. When the police brought Powell to be booked at the Sixth Avenue Jail, he began to destroy the booking room — throwing typewriters and computers at the officers, and causing several thousand dollars’damage. Based on this incident, Powell was charged with felony assault (his third felony).

In August 1997, with this felony charge pending, Powell was released to Sundown Ranch, a treatment program in the State of Washington, upon the promise that he would return to court for a hearing on September 18th. Instead, Powell jumped bail and remained a fugitive for almost eight months.

In April 1998, Powell was arrested at his Anchorage residence. While awaiting trial, he was released to Genesis House (a treatment center). In November 1998, Powell was convicted of the 1997 felony assault, but he was apparently allowed to continue his residence at Genesis House.

Shortly thereafter, in late November 1998, Genesis House released Powell. Sixty-eight days later, in January 1999, Powell committed the offenses in the present case: his twelfth DWI, plus two counts of first-degree assault (for seriously injuring two people) and one count of reckless endangerment.

While the present charges were pending, one of Powell’s victims (Roberto Hernandez) sued him in small claims court to recover damages stemming from the collision. At the trial in front of District Court Judge James N. Wanamaker, Powell committed perjury by falsely testifying that he had not been driving the vehicle. (Powell testified that he had been lying asleep in the back seat at the time of the collision.)

The superior court’s findings and sentencing decision

As already explained, Powell was a third felony offender convicted of two class A felonies (first-degree assault). The presumptive term for a third felony offender convicted of a class A felony is 15 years’ imprisonment, and the maximum term of imprisonment for a class A felony is 20 years.

Superior Court Judge Milton M. Souter presided over Powell’s sentencing. He found that the State had proved four aggravating factors under AS 12.55.155(c): (c)(20) — that, at the time of his present offense, Powell was on felony probation (from the 1997 third-degree assault); (c)(6) — that Powell’s conduct created a risk of imminent injury to three or more persons; (c)(15) — -that Powell had more than two prior felony convictions; and (c)(8) — that Powell’s criminal history included repeated instances of assault. (Powell did not dispute these four aggravators.)

Based on these aggravators, Judge Souter was authorized to impose a sentence of up to 20 years’ imprisonment on each of Powell’s first-degree assault convictions. Because Powell did not prove (or even assert) any mitigating factors, the 15-year presumptive term was, in essence, the minimum sentence that Judge Souter might impose for these two felonies.

The prosecutor asked Judge Souter to impose 20 year maximum sentences for each of Powell’s two first-degree assault convictions, to make these two felony sentences consecutive by at least 5 years, and to limit Powell’s parole eligibility by requiring him to serve at least 20 years before he became eligible for parole. Powell’s attorney conceded that Powell should receive 20 years to serve, but she asked Judge Souter to impose no more than that.

Thus, in practical terms, Judge Souter was confronted with two major decisions: (1) whether to impose a composite sentence that exceeded the 20-year maximum for a single count of Powell’s most serious offense (first-degree assault), and (2) whether to restrict Powell’s parole eligibility.

Based on Powell’s extensive , record of criminal offenses and his repeated failures at rehabilitation, Judge Souter found that Powell was a worst offender for sentencing purposes. The judge expressed “grave doubt that further rehabilitative efforts are going to bear [fruit]”.

Having made this “worst offender” finding, Judge Souter was authorized to impose a composite sentence of up to 20 years’ imprisonment (the maximum penalty for a single count of first-degree assault, Powell’s most serious offense). But under the Neal-Mut-schler rule established by our supreme court, Judge Souter could not impose a sentence exceeding 20 years to serve unless he affirmatively found that a longer term of imprisonment was necessary to protect the public.

Judge Souter did not expressly mention the Nealr-Mutschler rule in his sentencing remarks, but he explained why he had small hopes for Powell’s rehabilitation, and why he believed that Powell was a particularly dangerous offender:

The Court: I have to look at reality. I have to consider [the] risks to the public here. Because of the long, continued nature of Mr. Powell’s alcoholism, his inability to control his conduct when he is drinking — he gets violent when he’s drinking, he just cannot control himself when he drinks. He drinks to excess, and then he can’t control himself_[T]his pattern ... [is] deeply ingrained, it’s deeply rooted. He’s been doing this ... since he was an adolescent, ... [for] over twenty years. We’re talking thirteen [sic: twelve] known convictions for driving while intoxicated. We’re talking several other alcohol-related convietions[.] ...
And the worst part ... for society is that Mr. Powell is dangerous. He’s a real threat to the life and the limb of other people on the highway. It’s a wonder that he has not killed ... or seriously maimed somebody [or] crippled them. He hurt two people seriously in this case....

Judge Souter also explained why he had decided to sentence Powell to “straight time” (that is, a sentence consisting solely of time to serve) rather than imposing a partially suspended sentence with attendant probation:

The Court: As much as I would like to be able to decide [this] issue the other way, ... I cannot avoid the conclusion that Mr. Powell is a danger to others and that he has got to be incarcerated for a long time for the sake of other people, the sake of the safety of other people. Now, oftentimes, judges order ... probationary sentences on top of prison-time sentences because they want to encourage rehabilitation and they want to maintain control of [an offender] after ... they get out of jail.[But] I’m not going to do that in this case because ... [the] evidence here is very strong ... that Mr. Powell is not going to rehabilitate [himself]. As soon as he gets out of jail, he’s going to start doing it again. That’s the weight of the evidence. I hope he can do it, I hope he can change, but the weight of the evidence is that he won’t, ... based on [our] past experience with him [in] the justice system[.]

At the same time, Judge Souter rejected the prosecutor’s request for a restriction on Powell’s parole eligibility:

The Court: I’m going to order ... straight-time sentences, [but] I’m going to let the Parole Board deal with [Mr. Powell]. Because I cannot foresee the future, I’m not going to restrict parole [as the prosecutor has asked]. I’m going to leave [parole] up to the Parole Board — which is tough: they’re no pushovers.... I think the Parole Board can do the job here.... I don’t need to be telling the Parole Board that they cannot [release] this man on parole if they really believe that he has become rehabilitated.

Finally, Judge Souter stated that he believed Powell’s sentences should be partially consecutive because, even though Powell’s offenses arose from a single incident, “there were multiple victims [involved]”.

Judge Souter then sentenced Powell to the following terms of imprisonment: The judge imposed an 18-year sentence on each count of first-degree assault, and he made 6 of those years consecutive. In addition, Judge Souter imposed a consecutive 1-year sentence for Powell’s reckless endangerment conviction — thus making a total of 25 years to serve. (Judge Souter also imposed 1 year’s imprisonment for Powell’s DWI conviction, but he made this concurrent to Powell’s other sentences.)

After imposing these sentences, Judge Souter revoked Powell’s probation from his 1997 felony assault conviction and imposed 1 year of Powell’s previously suspended jail time. This probation revocation sentence was consecutive to Powell’s sentences for his current offenses.

Thus, all told, Judge Souter sentenced Powell to serve 26 years in prison. Shortly after the judge imposed this sentence, the judge urged Powell to pursue rehabilitative treatment when he was released from prison. Powell answered with a sarcastic remark. Powell also complained openly about the fact that he would not be eligible for parole until he was in his fifties. This prompted Judge Souter to declare:

The Court: If you don’t change your attitude and your behavior, it scares the hell out of me what you’ll do to somebody out on the street. And that’s why I’ve got to send you away, the way I’m doing. And if you think I enjoy doing this to a fellow human being, you’re wrong. I don’t. It doesn’t make me feel any happier to have to do this, but I’m doing my duty.... It’s what I’ve got to do for the sake of everybody.

Our analysis of the superior court’s sentencing decision

As we noted earlier, Judge Souter did not expressly refer to the Neair-Mutschler rule when he sentenced Powell to a composite term of 26 years to serve — a term that exceeded the 20-year maximum sentence for Powell’s most serious offense. However, an express finding is not always required. In Neal itself, the supreme court declared that no express finding was needed under the following circumstances:

The record contains ample evidence that [the defendant] presents a risk of continued criminal conduct which would seriously threaten the public safety. [The defendant] was twenty-nine years of age at the time of sentencing. He has been a heroin addict for ten years and has compiled a lengthy criminal record, including numerous felony and misdemeanor drug offenses and several property offenses. Extensive drug rehabilitation efforts have been a failure. With complete foresight [the defendant] helped to plan, organize, and carry out a highly dangerous and extremely serious crime [armed robbery of a bank]. It is clear that [the defendant] presents a threat of criminal conduct which would seriously threaten the public safety. Given his repeated rehabilitative failures and his conduct on this occasion, the threat is substantial.

Neal, 628 P.2d at 21. See also Waters v. State, 64 P.3d 169, 174-75 (Alaska App.2003), where we upheld a composite sentence that exceeded the maximum for the defendant’s single most serious offense, even though the sentencing judge failed to make an express Nealr-Mutschler finding, when the defendant “was a mature adult with a lengthy history of serious offenses and a seemingly intractable substance abuse problem”.

Like the defendants in Neal and in Waters, Powell is a mature offender whose conduct over the preceding two decades has shown him to be both exceptionally dangerous and seemingly incorrigible. Powell’s 15-year presumptive term is based on his prior felony convictions, but Powell’s dangerousness is more clearly demonstrated by his almost two dozen convictions for driving offenses. Chief among these are his eleven prior convictions for driving while intoxicated. But Powell also has been convicted eight times for driving with a suspended or revoked license, once for reckless driving, and once for leaving the scene of an accident.

Moreover, Powell is distinguished from the typical drunk driving offender because his criminal history also demonstrates a propensity for violence. He has been convicted of one felony assault and several other misdemeanor assaults (as well as resisting arrest).

Finally, the record demonstrates Powell’s contempt for authority and his disdain for any efforts to foster his rehabilitation. Again and again, Powell has jumped bail when facing criminal charges. He also committed perjury in an attempt to avoid liability when he was sued for damages stemming from his current offenses. Dozens of criminal convictions and jail sentences have failed to deter Powell from further criminal activity — most notably, his continuing string of drunk driving offenses. And, perhaps most important, Powell has repeatedly absconded from alcohol treatment programs.

As was true in Neal, the sentencing record in Powell’s case shows that he “presents a [substantial] threat of continued criminal conduct which would seriously threaten the public safety”. That record fully supports the conclusions that Powell poses a great danger to the public safety, that Powell has poor prospects for rehabilitation, and that, unless and until Powell is rehabilitated, the only way to protect the public from him is to keep him isolated in prison.

We acknowledge that Powell’s 26-year sentence exceeds any that we have affirmed for defendants convicted of vehicular homicide. However, as we explained above, Powell is a third felony offender who faced a presumptive term of 15 years. (Indeed, because Powell did not propose any mitigating factors, this 15-year presumptive term was essentially the mandated minimum term.)

This 15-year presumptive term represents the legislature’s judgement as to the prison term that should be imposed on a typical third felony offender who commits a typical act of first-degree assault. But Powell is not a typical third felony offender.

First, Powell had three prior felonies, not just two. Second, Powell was being sentenced for two first-degree assaults, not just one. Third, Powell’s criminal history includes eleven prior convictions for driving while intoxicated, as well as several convictions for misdemeanor assault. Fourth, Powell has engaged in repeated violations of bail and probation conditions, often accompanied by flight from Alaska, and he continues to drive even though, because of past offenses, his license has been revoked for more than the next hundred years. And fifth, Powell has repeatedly refused to engage in treatment for his alcoholism.

When we consider these aspects of Powell’s case in combination, we conclude that Judge Souter was not clearly mistaken when he sentenced Powell to a composite term of 26 years to serve. The sentencing decision of the superior court is therefore AFFIRMED.

      . AS 12.55.185(14).

      . AS 11.41.200(b).

      .AS 12.55.125(c)(4).

      . AS 12.55.125(c).

      . See AS 12.55.155(a)(2).

      . Id.

      . See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975), Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990) (defining the term "worst offender", and explaining that a "worst offender” finding can be based either on the circumstances surrounding the defendant’s present offense, or on the defendant's criminal history, or both).

      . See id.

      . See Neal v. State, 628 P.2d 19, 21 (Alaska 1981): “Our past decisions imply that where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public." (Citing Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)).

        .See Pusich v. State, 907 P.2d 29 (Alaska App.1995) (upholding a composite sentence of 18 years to serve — 25 years with 7 years suspended — for a consolidated count of manslaughter charging three deaths, and one count of first-degree assault); Foxglove v. State, 929 P.2d 669 (Alaska App.1997) (upholding a composite sentence of 19 years to serve for one count of manslaughter and four counts of first-degree assault, plus another first-degree assault arising from a separate incident).

      . See Mullin v. State, 886 P.2d 1323, 1328 (Alaska App.1994); Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.1982).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).