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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Philip J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/2/2011) sp-6622

Philip J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/2/2011) sp-6622

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

PHILIP J.,                                       ) 
                                                 )   Supreme Court No. S-14193 
                       Appellant,                ) 
                                                 )   Superior Court Nos. 4BE-10-00013 CN, 
        v.                                       )   4BE-10-00014 CN, 4BE-10-00015 CN, 
                                                 )   4BE-10-00016 CN, 4BE-10-00017 CN, 
STATE OF ALASKA, DEPARTMENT                      )   4BE-10-00018 CN, and 
OF HEALTH & SOCIAL SERVICES,                     )   4BE-10-00019 CN 
OFFICE OF CHILDREN'S                             ) 
SERVICES,                                        )   O P I N I O N 
                                                 ) 
                       Appellee.                 )   No. 6622 - December 2, 2011 
                                                 ) 

               Appeal   from     the  Superior   Court   of  the  State  of   Alaska, 
               Fourth Judicial District, Bethel, Leonard Devaney III, Judge. 

               Appearances:  Renee McFarland, Assistant Public Defender, 
               and    Quinlan    Steiner,   Public   Defender,    Anchorage,     for 
               Appellant. Michael G. Hotchkin, Assistant Attorney General, 
               Anchorage, and John J. Burns, Attorney General, Juneau, for 
               Appellee. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               CHRISTEN, Justice. 
               WINFREE, Justice, dissenting. 

I.      INTRODUCTION 

               Philip is the father of seven children who were adjudicated to be children 

in need of aid.    On appeal, he claims that his right to due process was violated because 

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he was unaware that the State would seek adjudication findings at the conclusion of a 

hearing that started as a contested probable cause (temporary custody) hearing.  He also 

argues that he was denied due process because he was not allowed to present a closing 

argument.    We hold that Philip was not denied due process because he had notice that 

the State was seeking adjudication findings, because he had an opportunity to be heard 

on adjudication, and because he was not denied the opportunity to deliver a closing 

argument. 

II.     FACTS AND PROCEEDINGS 

        A.       Facts 

                Philip   J.   and   Georgina   J.   are   the   biological   parents   of   seven   children: 
Sophie,   Anne,   John,   Katherine,   Nellie,   Olivia,   and   Alexandra.1     The   children   are 

members of the Asa'carsarmiut Tribe and are Indian children within the meaning of the 
Indian Child Welfare Act (ICWA).2 

                The Office of Children's Services (OCS) first became involved with this 

family in 2004 when Philip and Georgina both became extremely intoxicated; Philip 

fired a rifle in the home and held the family hostage for three hours. 

                Several additional reports of harm were received between 2005 and 2010. 

In   April   2005,   Philip  and   Georgina    became    intoxicated    on  homebrew      and   Philip 

assaulted Georgina, giving her two black eyes. On the same evening, Philip was charged 

with sexually assaulting a female visitor at the home.          The children were present in the 

home at the time.      In July 2008, an OCS investigation found parental substance abuse, 

lack of supervision by both parents, and exposure of the children to domestic violence. 

In October 2008, OCS received another report of harm; it investigated and found that the 

        1       Pseudonyms are used for all family members. 

        2       25 U.S.C.  1901-1963 (2011). 

                                                 -2-                                              6622 

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parents were abusing substances, exposing their children to the elements, and exposing 

their children to domestic violence.  OCS received and substantiated two similar reports 

of harm in September 2009. In November 2009, OCS received and substantiated a report 

of physical abuse and neglect. 

                 The incident that gave rise to this appeal was triggered by events that began 

in January 2010.  OCS received a report from the Indian Child Welfare Act Program of 

the Asa'carsarmiut Tribal Council that Philip had sexually assaulted Anne and tried to 

sexually assault Sophie.   In a written statement, Anne disclosed sexual abuse by Philip. 

She   reported   that   Georgina   tried   to   stop   him,   that   Philip   became   angry   and   began 

throwing things around the house, that he broke off a table leg, and that he beat Georgina 

with it.  The OCS report stated:         "Girls are afraid their mother will get beat up by their 

father . . . if they tell anyone."      Philip was arrested by the Alaska State Troopers and 

found     guilty   of  assault   in  the  fourth   degree.      He   was   sentenced     to  270   days    of 

incarceration, with 210 days suspended. 

                 Alaska State Trooper Steven Kevan interviewed Georgina in February 2010 

while Philip was still in custody.  Georgina stated that Philip had beaten her for several 

years   but   she   was   afraid   to   report   it. She   described   an   incident   that   took   place   on 

February 8, 2010, in which Philip became angry and "went after" two of their children. 

Georgina      was    holding    their  youngest      child  at  the   time   -    a  one-year-old     baby. 

According to Georgina, when she stepped in front of Philip to protect the two other 

children, Philip began punching her in the face, head, and sides, and kicking her in the 

legs.  Georgina also reported that Philip had threatened to kill her and the children and 

that she was afraid he would do so. 

                 After   the   incidents   in   early   2010,   Georgina   and   her   mother   sought   a 

short-term and long-term protective order from Asa'carsarmiut Tribal Court. By the time 

Philip   was   released   from   jail   in   April   2010,   a   short-term   protective   order   had   been 

                                                    -3-                                               6622
 

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entered, but not a long-term order. Because Philip returned to the home after his release, 

a social worker offered to take Georgina and the children into a domestic abuse shelter. 

Georgina declined.  OCS then told Georgina that if she did not go to the shelter with her 

children, the children would be removed from the home.                  When Georgina still refused 

to   take   the   children   to   a   shelter,   OCS   took   the   children   into   emergency   custody   on 

April   22,   2010   and   placed   them   into   foster   care. Both   parents   were   present   for   an 

emergency temporary custody hearing on April 23, 2010. The magistrate recommended 

approval of the State's emergency petition for temporary custody at the conclusion of the 

temporary custody hearing. 

                 On April 30, 2010, the tribal court issued a final protective order against 

Philip.   It ordered him not to come within 500 yards of his children and banished him 

from   being   within   the   boundaries   of   the   Asa'carsarmiut   Tribe,   including   Mountain 

Village, where the family's home was located. 

                 Georgina had some visitation with the children while they were placed in 

foster care, but she soon moved to a neighboring village, Alakanuk, to live with Philip. 

In   August   2010,   Georgina   was   flown   into   Anchorage   and   taken   to   Alaska   Native 

Medical Center.   She had two broken arms and bruising all over her body but would not 

say who assaulted her.  Philip testified that he discovered her, beaten, on his boat; he did 

not report the incident to the police. 

        B.       Proceedings 

                 OCS filed an emergency petition for adjudication of children in need of aid 

and for temporary custody on April 23, 2010.              The petition requested an "adjudication 

and order of disposition committing the children to the custody of the Department of 

Health and Human Services for a period not to exceed two years."                     The superior court 

agreed with the magistrate's recommendation to approve the State's temporary custody 

petition.    On   May   13,   the   superior   court   issued   a   pretrial   order   setting   a   series   of 

                                                    -4-                                              6622
 

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deadlines in July.      The order also scheduled an "adjudication and disposition trial" for 

the   week   of   July   27,   2010.   Philip   filed   a   motion   for   a   contested   probable   cause 
(temporary custody) hearing3   and a motion to continue the adjudication hearing, both of 

which were granted.   In an order issued July 12, a contested probable cause (temporary 

custody) hearing was scheduled for August 25, 2010.                   The adjudication hearing was 

rescheduled to begin September 28, 2010. 

                 On June 28, OCS filed a notice that it would call an expert witness to testify 

that the children would suffer serious emotional or physical damage if returned to their 

parents' custody.      And on August 11, OCS submitted a notice of its intent to: 

                 seek findings by a preponderance of the evidence; 1) that the 
                 children are children in need of aid under AS 47.10.011, and 
                 2)   that   the   department   has   made   active   efforts   to   provide 
                 remedial services and rehabilitative programs as required by 
                 25 U.S.C.  1912(d) at the contested hearing scheduled for 
                 August 25, 2010. 

OCS's pretrial memorandum for the August 25 hearing reiterated that it sought findings 

"based on a preponderance of the evidence that the [children] are children in need of aid 

. . . ."  It also stated that the State sought findings by "clear and convincing evidence that 

the   children   are   likely   to   suffer   serious   emotional   or   physical   damage   if   left   in   the 

custody of the parents."       At the August 25 hearing, OCS referred to this written notice 

of   intent,   and   restated   that   it   would   be   seeking   a   "preponderance   of   the   evidence 

finding."     Counsel   for   Philip   acknowledged   that   he   understood   that   OCS   would   be 

seeking findings by a preponderance of the evidence. 

        3        Contested      temporary     custody     hearings    are   commonly       referred   to  as 

"probable cause" hearings because the State must show probable cause that the children 
are in need of aid.  See CINA Rule 10. 

                                                    -5-                                                 6622 

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                The contested probable cause hearing began on August 25, but OCS only 

finished questioning three of its 14 witnesses by the end of the allotted time.               Trooper 

Kevan was one of the witnesses who did testify that day, and an affidavit detailing his 

interview of Georgina was admitted by stipulation of the parties.  Anne also testified that 

day about the sexual assault allegations against Philip.  Philip's counsel orally moved to 

strike Anne's testimony on the grounds that she was nonresponsive. 

                Near the end of the allotted time on August 25, the court inquired about the 

possibility of stipulating to probable cause and moving the case to the adjudication stage. 

Philip's counsel stated that his strongest argument against probable cause only applied 

to one of four subsections of AS 47.10.011 under which OCS sought probable cause. 

He agreed with the court that his pretrial memo had conceded probable cause as to 
AS 47.10.011(8).4      The superior court set a telephonic "trial call" for September 28 and 

scheduled the continuation of the hearing for October 28-29 and December 3. 

                Numerous witnesses were presented at the continuation of the hearing. 

Among them, Sophie was called to   testify about the allegations that Philip sexually 

assaulted her.     Philip's counsel orally moved to strike the testimony of Sophie on the 

grounds     that  she   was   unable   or  unwilling    to  respond    to  his  questions    on   cross- 

examination, and that she should be deemed an "unavailable" witness as a result.  The 

superior court granted Philip ten days to file a written brief in support of the motion. 

When   no   brief   was   received,   the   court   issued   a   written   order   advising   that   Philip's 

counsel should be prepared to discuss the matter at the continuation of the hearing, on 

December 3. 

        4       AS 47.10.011(8) pertains to conduct or conditions that expose children to 

mental injury. 

                                                  -6-                                               6622 

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                The State presented expert testimony from Dr. Bruce Smith at the hearing 

on December 3.  Dr. Smith testified regarding the psychometric testing he administered 

to the oldest three children.      At the end of the December 3 hearing, OCS requested that 

the superior court: 

                enter findings that the children are children in need of aid by 
                a preponderance of the evidence . . . [and] that active efforts 
                have been   made and they have not been successful . . . to 
                prevent the children's removal from the home and to remedy 
                the safety threats within the home; that continued placement 
                in the home is contrary to the welfare of the children . . . . 

                At the close of evidence on December 3, Philip's oral motion to strike the 

testimony of Anne and Sophie was still pending, but no written brief had been received. 

The court granted additional time for Philip to file a   written motion, and the record 

shows it was received by the court on December 9.                The State's opposition was filed 

December 17.  No reply brief was filed, but Philip did file a motion to strike the State's 

response. 

                In February 2011, the superior court issued a written order striking Sophie's 

testimony      but   not  striking   Anne's     testimony.      The    superior    court   found    by   a 

preponderance   of   the   evidence   that   the   children   were   children   in   need   of   aid   under 

                     5                  6          7 
AS 47.10.011(6),  (8)(B)(i)-(iii),  and (9).         Philip appeals. 

        5       AS 47.10.011(6) pertains to physical harm. 

        6       AS 47.10.011(8) pertains to mental injury. 

        7       AS 47.10.011(9) pertains to neglect. The court also found the children, 

except John, were children in need of aid under AS 47.10.011(7) (sexual abuse).  The 
parties later stipulated to vacate the determination under AS 47.10.011(7). 

                                                   -7-                                             6622
 

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III.	    STANDARD OF REVIEW 

                Whether due process rights are violated in a CINA case is a question of law 

that this court reviews de novo, adopting "the rule of law that is most persuasive in light 
of precedent, reason and policy."8 

IV.	     DISCUSSION 

        A.	      The Superior Court Did Not Violate Philip's Right To Due Process By 
                Entering Adjudication Findings After The Contested Hearing. 

                Philip    claims   that  he  did not    have   notice  that  the  State   would    seek 

adjudication findings at the conclusion of the hearing that began August 25 and ended 
December 3, 2010.9        Philip points to the fact that the hearing set for August 25 was 

described as a "probable cause hearing" in the Order to Appear Telephonically issued 

August 23.  Philip also notes that both the State and the court on other occasions referred 

to the hearing as one determining "probable cause." 

                "[D]ue process requires that any action involving deprivation of life, liberty 

or property by adjudication must be preceded by notice and opportunity for hearing 
appropriate to the nature of the case."10  In D.M. v. State, the appellant argued that due 

process   concerns   were   implicated   when   the   State   requested   findings   by   clear   and 

convincing evidence at the adjudication phase of a CINA case, and then used those 

        8       Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska 2005) (internal quotations 

and citations omitted). 

        9       As   a   threshold   matter,   the   State   claims   that   because   this   case   has   only 

reached the adjudication stage, it is not yet ripe for appeal.  Because Philip would have 
the right to file a petition for review even if he did not have the ability to appeal as a 
matter of right, we do not reach the State's ripeness argument.              Alaska R. App. P. 402. 

        10      In re Estate of Fields, 219 P.3d 995, 1009 (Alaska 2009) (quotingAguchak 

v.Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)) (internal quotation marks 
omitted). 

                                                  -8-	                                           6622
 

----------------------- Page 9-----------------------

findings at a termination trial.11      In that case, the State did not give notice that it would 

seek findings by the heightened standard of proof until the outset of the adjudication 
hearing.12    In   holding   that   the   mother's   right   to   due   process   was   not   violated,   we 

balanced the value of procedural safeguards against the private interest affected by the 
action.13   We observed that a proceeding to terminate parental rights affects a private 

interest "of the highest order,"14 but ultimately concluded that the mother failed to show 

actual prejudice.15 

                Here, the State gave explicit written notice of its intent to seek adjudication 

findings   well   in   advance   of   the   probable   cause   hearing   that   began   on   August   25. 

Because   notice   was   given   well   in   advance   of   the   hearing,   because   the   hearing   was 

continued over the course of several months so that Philip had ample time to respond to 

the State's evidence, and because Philip has not shown that he was prejudiced by the 

State's request for adjudication findings at the conclusion of the probable cause hearing, 

we discern no due process violation. 

                 1.      Philip had notice that the State would seek adjudication findings. 

                Philip    argues    that  he  did   not  have    notice   that  the  State  would     seek 

adjudication findings at the conclusion of the hearing.  We disagree.  OCS filed a notice 

        11      D.M. v. State, Div. of Family and Youth Servs., 995 P.2d 205, 213 (Alaska 

2000).    The clear and convincing standard is used at termination proceedings, while 
adjudication hearings require merely a preponderance of the evidence that the child is 
in need of aid.    See CINA Rule 15, 18. 

        12      Id. at 207. 

        13      Id. at 212-13 (citing Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)). 

        14      Id.  at   213   (quoting In   re   J.L.F.   &   K.W.F., 828   P.2d   166,   170   (Alaska 

1992)). 

        15      Id. 

                                                   -9-                                              6622
 

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that it "intend[ed] to seek findings by   a preponderance of the evidence;                 1) that the 

children are in need of aid under AS 47.10.011, and 2) that the department has made 

active efforts to provide remedial services and rehabilitative programs as required by 

25 U.S.C.  1912(d) at the contested hearing scheduled for August 25, 2010."  The 

State's written notice that it would "seek findings by a preponderance of the evidence" 

was effectively notice that it would seek findings sufficient to adjudicate the children in 

need of aid; CINA Rule 10 only requires a showing of probable cause at a contested 
temporary custody hearing.16          The transcript of the August 25 hearing confirms   the 

State's reiteration of its clear intention to seek adjudication findings.  Immediately after 

the superior court referred to the hearing as a "probable cause hearing," OCS corrected 

the court and reiterated that it would be seeking findings by a preponderance of the 

evidence.    Also at the August 25 hearing, Philip's counsel affirmed that he understood 

that   the   State   wanted   the   children   to   be   evaluated   by   an   expert   in   anticipation   of 

adjudication.       Dr.    Bruce     Smith,    OCS's     expert,    interviewed     the   children    on 
August 31, 2010.17       His written report was filed with the court and served on Philip's 

counsel on October 11, 2010.          Finally, at the close of the December 3 hearing, OCS 

        16      CINA Rule 10, which applies to temporary custody hearings, requires that 

"the court shall order the child returned to the home and dismiss the petition if the court 
does not find probable cause to believe that the child is a child in need of aid under 
AS 47.10.011."       CINA Rule 10(c)(1).        CINA Rule 15 governs adjudication hearings. 
Rule     15(c)   provides    that   "[t]he   Department      has   the   burden    of   proving    by   a 
preponderance of the evidence that the child is a child in need of aid." 

        17      The State gave notice in July that Dr. Bruce Smith would interview the 

children    and   prepare    a  report   for  adjudication.    Dr.   Smith    ultimately   testified  on 
December 3.       He described his interview of the oldest three children and the testing he 
administered to them.       He also testified that he tried to interview Philip and Georgina, 
but they declined to meet with him. 

                                                  -10-                                            6622
 

----------------------- Page 11-----------------------

expressly requested findings by a preponderance of the evidence that the children were 

in need of aid. 

               Philip is correct that the hearing set for August 25 was originally scheduled 

as a contested probable cause (temporary custody) hearing, but it is not uncommon for 

the State to seek adjudication findings at probable cause hearings, and there is ample 

evidence in the record to support the conclusion that Philip had been given fair and 

express notice that the State would seek adjudication findings.          The   State made this 

intention clear in its written filings and in its on-record statements.       We find no due 

process violation in the State's request for adjudication findings at the conclusion of the 

subject hearing. 

               2.	    Philip did not show that he was prejudiced by a lack of notice 
                      that the State would seek adjudication findings. 

               Philip argues that he was prejudiced by lack of notice that the State would 

request    adjudication   findings.    As    explained,   the  superior   court   found   by   a 

preponderance      of  the   evidence   that  the  children   were    in  need   of  aid  under 

AS 47.10.011(6), (8)(B)(i-iii), and (9).     Philip makes the bare assertion that he would 

have called additional witnesses or may have retained his own expert to testify as to 

subsections (6) and (9) if he had known the State would seek adjudication findings, but 

he does not identify the witnesses, nor does he suggest what they or the expert would 
have said.18 More significantly, Philip does not claim that he would have introduced any 

       18      At the close of the hearing, Philip's counsel stated that he did not have any 

further evidence "for purposes of probable cause."         Philip asserts that this statement 
"strongly    suggests   that  he  would   have  had   evidence   to  present  for  purposes   of 
adjudication."  However, in context, it appears that Philip's counsel was distinguishing 
evidence for the purposes of probable cause from evidence relating to visitation, not 
adjudication: 
                                                                                 (continued...) 

                                             -11-	                                        6622
 

----------------------- Page 12-----------------------

more evidence as to subsection (8)(B)(i-iii).               Because an adjudication finding under 

(8)(B)(i-iii),   alone,   would   be   sufficient   to   uphold   the   superior   court's   decision,   we 

conclude that Philip has not shown he suffered any actual prejudice as a result of the 

State's request that the superior court enter adjudication findings at the conclusion of the 

subject hearing. 

        B.       Philip Was Not Denied The Right To Present A Closing Argument. 

                 Philip claims that he was denied due process because he was not allowed 

to present a closing argument at the end of the contested hearing.                  He cites Herring v. 

New York for the proposition that closing arguments are part of the right to assistance of 
counsel under the Sixth Amendment in criminal cases.19  He also cites In re Emileigh F., 

where a Maryland court held that litigants in CINA cases have the right to an opportunity 
to make closing arguments as a matter of Maryland common law.20 

                 The   missing   foundation   to   Philip's   argument   is   a   request   to   present   a 

closing argument.   Several courts have held that the failure to request closing argument 

         18(...continued) 

                 Court: . . . any other evidence to present . . . ? 

                 . . . 

                 Mr. Case: You know, I do have - no, not for purposes of 
                 probable cause.  It - it's - I do have some thoughts about 
                 visitation issues as well here. 

         19      422 U.S. 853, 865 (1975). 

        20       724 A.2d 639, 644 (Md. App. 1999). 

                                                    -12-                                              6622
 

----------------------- Page 13-----------------------

is sufficient to waive the right.21     The December 3 hearing ended without mention of a 

closing argument from Philip's counsel.   That the superior court did not actively seek a 

summation from the parties was to be expected; the court had not yet decided whether 

the oldest girls' testimony would be admitted as a part of the State's case.  The superior 

court   did   not   rule   on   Philip's   motion   to   strike   their   testimony   because   Philip   had 
requested an opportunity to file a brief in support of his motion.22            In the two months 

after the close of the hearing and before the superior court's decision, Philip completed 

briefing on the motion to strike, but he did not request the opportunity to present a 

closing argument.        Thus, even if Philip could show   that he had an absolute right to 

present an oral or written closing argument at the adjudication phase of this case, he 

waived the right by failing to request the opportunity to present one. 

        C.	     Because The Superior Court Did Not Commit Error In This Case, 
                There Was No Cumulative Error. 

                Philip argues that even if none of the superior court's errors individually 

constitutes a violation of due process, taken cumulatively, they require reversal. Because 

we discern no error by the superior court, we hold that there was no cumulative error. 

V.	     CONCLUSION 

                We AFFIRM the order of the superior court adjudicating all of the parties' 

children to be children in need of aid. 

        21      U.S. v. Spears, 671 F.2d 991, 994 (7th Cir. 1982); People v. Manning, 120 

Cal. App. 3d 421, 426 (Cal. App. 1981); State v. Hebert, 132 P.3d 852, 862 (Haw. App. 
2006). 

        22      Philip suggests that the State was allowed to present a closing argument, 

but what the State's attorney called a "brief closing" was actually only a reiteration of 
the findings the State sought, not an argument about the evidence that had been presented 
at the hearing.  Philip did not respond, but there is no indication he was prevented from 
doing so. 

                                                 -13-	                                          6622
 

----------------------- Page 14-----------------------

WINFREE, Justice, dissenting. 

                I respectfully disagree with the court's conclusion that Philip's due process 

rights were not violated by the unannounced change of his probable cause hearing to an 
adjudication hearing.1      It is true the Office of Children's Services (OCS) gave advance 

notice of its intent to seek adjudication findings rather than probable cause findings at 

the close of the hearing.        But because the trial court, not OCS, ultimately determines 

whether   to   turn   a   probable   cause   hearing   into   an   adjudication   hearing,   due   process 

requires that  the trial court advise a parent of its determination at a meaningful time 
rather than in a post-hearing adjudication decision.2 

        1       A parent's interests in a probable cause hearing and an adjudication hearing 

are substantially different due to the evidentiary burden and possible consequences of 
each. 

                A   "probable   cause   hearing"   is   a   preliminary   non-adjudicatory   hearing 
governed by CINA Rule 10, entitled "Temporary Custody Hearing."  At the conclusion 
of such a hearing, the trial court must order a child returned to the home and dismiss the 
underlying petition if the court "does not find probable cause to believe that the child is 
a child in need of aid under AS 47.10.011."             CINA Rule 10(c).       If the trial court does 
find   probable   cause,   it   must   hold   an   adjudication   hearing   within   120   days,   unless 
continued for good cause.        AS 47.10.080(a). 

                An     adjudication     hearing    is  governed      by   CINA     Rule    15,   entitled 
"Adjudication Hearing."         Such a hearing "is a trial to the court on the merits of the 
petition for adjudication" and OCS "has the burden of proving by a preponderance of the 
evidence that the child is a child in need of aid."            CINA Rule 15(a) and (c).         If OCS 
meets this burden, the trial court can commit the child to OCS's care for up to two years. 
AS 47.10.080(c)(1). 

        2       The court characterizes Philip's due process argument as being that he did 

not know OCS was asking for adjudication findings.   But Philip concedes he knew OCS 
requested adjudication findings - his due process argument is that the trial court (1) 
conducted the hearing as a probable cause hearing, and (2) never gave Philip notice that 
it was considering honoring OCS's request to make adjudication findings rather than 
                                                                                         (continued...) 

                                                  -14-                                             6622
 

----------------------- Page 15-----------------------

                Although shortly before the hearing and in its pre-hearing memorandum 

OCS advised that it would seek adjudicatory findings, the record seems clear that the 

August 25 hearing was intended to be a probable cause and temporary custody hearing. 

The July notice for the August 25 hearing described it as a "contested [] probable cause 

hearing";     an   order   issued   the  same    day   set  a  separate    adjudication     hearing    for 

September   28.       OCS's   August   11   motion   requested   leave   to   have   witnesses   testify 

telephonically "at the contested probable cause hearing" set for August 25. Philip agreed 

to some but objected to other telephonic testimony "at the hearing on probable cause" 

set for August 25.       The order allowing telephonic testimony referred to "the probable 

cause hearing." Philip's subsequent pre-hearing memorandum was based entirely on the 

hearing being held for the determination of probable cause. 

                During the August 25 hearing the trial court allowed certain telephonic 
testimony over Philip's objection because "[t]his   is just a probable cause hearing."3 

Later in the hearing the trial court mentioned that OCS was seeking adjudication findings 

and stated that it "[didn't] want to argue about that now."   At the close of the hearing the 

trial court inquired whether Philip might stipulate to probable cause, allowing the case 

to be moved to the adjudication stage.          Although Philip agreed he may have conceded 

a probable cause finding under AS 47.10.011(8) (mental injury), no stipulation was made 

after another reference to OCS seeking adjudication findings.                 The hearing was then 

continued to late October, with the trial court noting that if agreement were reached by 

        2(...continued) 

probable cause findings, even at the conclusion of OCS's case when Philip stated that 
he did not intend to present evidence as to probable cause. 

        3       See CINA Rule 10(b)(3) (allowing otherwise inadmissible hearsay evidence 

in   a   probable   cause   hearing   if   it   is   "probative   of   a   material   fact,   has   circumstantial 
guarantees of trustworthiness, and the appearing parties are given a fair opportunity to 
meet it"). 

                                                  -15-                                             6622
 

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the   parties   it   would   "find   probable   cause   and   then   .   .   .   would   set   [a   hearing]   for 

adjudication."     At a late-September status conference on the date originally set for an 

adjudication hearing, the trial court again referred to the matter as a probable cause 

hearing.    Shortly before the October hearing, the trial court issued an order denying 

Philip's motion to admit his deposition testimony in lieu of telephonic testimony at the 

"continued probable cause hearing." 

                When the hearing resumed on October 28, the trial court referred to it as "a 

continuation of the probable cause hearing."           After further proceedings on October 29, 

the hearing was continued to December 3.  On December 2 the trial court issued an order 

referencing "the October 29, 2010, probable cause hearing."                Towards the December 3 

hearing's conclusion, the trial court asked if there would be additional "evidence for 

probable cause, adjudication, whatever we're calling this?"  Philip stated that he would 

not be presenting any evidence "for purposes of probable cause."  The trial court did not 

respond with any indication it was considering making adjudication findings instead of 

probable cause findings.        The trial court concluded the hearing by stating it would not 

"make any findings as to preponderance or probable cause at this point." On February 5, 

2011, the trial court issued an adjudication order under CINA Rule 15. 

                OCS argues that although "[t]he trial court might have been clearer about 

its intentions," Philip knew the trial court "might issue an adjudication decision."  But 

Philip   knew   only   that   OCS   had   requested   the   hearing   be   treated   as   an   adjudication 

hearing.     Philip was not given any indication by the trial court that it would honor that 

request.   In my view it is a violation of due process when:               (1) the trial court calls a 

proceeding a probable cause hearing throughout the presentation of OCS's case; (2) at 

the completion of OCS's case the trial court does not expressly advise the parent that it 

is considering making adjudication findings rather than probable cause findings; (3) the 

parent advises the trial court that he does not intend to present evidence on the issue of 

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probable cause and the trial court makes no indication that it is considering making 

adjudication findings; and (4) the parent's first indication that the trial court actually 

considered the hearing an adjudication hearing comes in the adjudication decision. 

                Although it is OCS's job to prosecute its case, the trial court, not OCS, 

ultimately determines the nature of the findings the court will make arising out of the 

hearings before it.  A parent should not be required to guess whether the trial court will 

honor an OCS request for adjudication findings at a probable cause hearing.                       "The 
fundamental requisite of due process of law is the opportunity to be heard."4               This right 

is of "little reality or worth unless one is informed that the matter is pending and can 
choose for himself whether to appear or default, acquiesce or contest."5              Putative notice 

given by the other party is not sufficient to satisfy due process concerns when the trial 

court informs a party that arguments are being heard and evidence taken on one issue, 

but makes a decision on another issue. 

                Implicit in the court's opinion is the idea that the trial court was not in a 

position to know whether it would enter adjudication findings until it had heard whether 

OCS's   evidence   would   satisfy   the   higher   burden   of   proof   required   for   adjudication 

findings. This fails to acknowledge the trial court's duty to give Philip notice at the close 

of OCS's evidence that the court was considering such findings; due process required 

        4       Mulane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) 

(quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). 

        5       Id. 

                                                  -17-                                              6622 

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putting Philip on notice that he needed to present evidence to contest adjudication rather 
than probable cause.6 

                I would reverse the trial court's adjudication decision and remand for entry 

of an appropriate probable cause decision. 

        6       The court further supports its decision by finding Philip failed to show that 

he was prejudiced by the trial court's lack of notice.   However, the prejudice analysis "is 
not the same as determining whether any constitutional error was harmless, but more 
fundamentally considers whether lack of notice   might deprive a parent of sufficient 
opportunity to prepare her case."  D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 
205, 213 (Alaska 2000) (emphasis added) (citations omitted).                 While due process is 
contextually based and flexible, "it is at bottom an interest analysis, not an outcome 
analysis.   It focuses not on whether a procedural error produced an unfair outcome but 
rather on whether the error produced an unjustifiable  risk of erroneously denying a 
protected interest in the specific procedural setting at hand."             D.M., 995 P.2d at 219 
(Bryner,   J.,   dissenting)   (citing Mathews   v.   Eldridge,   424   U.S.   319,   334-35   (1976)) 
(emphasis in original). 

                                                 -18-                                              6622 
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