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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Paula E. v. State, Dept. of Health & Social Services, Office of Children's Services (5/8/2012) sp-6671

Paula E. v. State, Dept. of Health & Social Services, Office of Children's Services (5/8/2012) sp-6671

        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 



PAULA E.,                                     ) 

                                              )       Supreme Court No. S-14247 

                       Appellant,             ) 

                                              )       Superior Court Nos. 3GL-06-00003, 

        v.                                    )       3GL-06-00004, 3GL-06-00005, 

                                              )       3GL-06-00006 CP 

STATE OF ALASKA,                              ) 

DEPARTMENT OF HEALTH &                        )       O P I N I O N 

SOCIAL SERVICES, OFFICE OF                    ) 

CHILDREN'S SERVICES,                          )       No. 6671 - May 8, 2012 

                                              ) 

                       Appellee.              ) 

                                              ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Glennallen, Daniel Schally, Judge pro tem. 



               Appearances:       Melanie     Baca   Osborne     and   Kirsten    M. 

               Kinegak-Friday, Stoel Rives LLP, Anchorage, for Appellant. 

               Megan R. Webb, Assistant Attorney General, Anchorage, and 

               John    J.  Burns,   Attorney    General,   Juneau,   for  Appellee. 

               Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for 

               Guardian ad Litem. 



               Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, 

               Justices. 



               PER CURIAM. 



               CARPENETI, Chief Justice, with whom STOWERS, Justice, 

               joins, dissenting. 


----------------------- Page 2-----------------------

I.      INTRODUCTION
 



                This appeal arises from a Child In Need of Aid (CINA) case involving four 



Indian children who were removed from their parents' care due to substance abuse and 



domestic violence.       The children were placed with their maternal grandmother, who 



claims that the Office of Children's Services (OCS) permanently removed the children 



and placed them with a non-Native foster family while she was away in Montana caring 



for her elderly mother.   OCS responds that the grandmother requested that the children 



be removed from her care.   There were also substantiated reports of harm relating to the 



grandmother's care, and the tribe expressed dissatisfaction with the children's placement 



with their grandmother.       After the grandmother returned from Montana to Alaska, the 



children stayed with the foster family while the grandmother provided afternoon care. 



But OCS terminated the grandmother's visitation when the tribe and the foster family 



complained that the children were behaving poorly after the visits.  After removing the 



children from the grandmother's care, OCS did not provide the grandmother with notice 



of scheduled permanency or placement hearings for the children. 



                Over   a   year   after   returning   from   Montana,   the   grandmother   formally 



requested   that   the   children   be   placed   with   her. OCS   denied   this   request   and   the 



grandmother appealed, arguing that the children should be placed with her and that the 



failure   to   provide   her   with   notice   of   hearings   conducted   during   the   preceding   year 



violated her due process rights.       After the standing master conducted a full hearing on 



the grandmother's placement request, the superior court denied the request, finding good 



cause to deviate from the Indian Child Welfare Act's (ICWA) placement preferences. 



The court further concluded that the grandmother was neither entitled to notice of earlier 



hearings nor prejudiced by a lack of notice.          After the superior court proceedings, the 



children    were    adopted    by  the   foster  family   with   whom     they   had   bonded.      The 



grandmother appeals, arguing that because she did not receive proper notice of the earlier 



                                                  -2-                                            6671
 


----------------------- Page 3-----------------------

proceedings related to the children and because there was not good cause to deviate from 



the ICWA preferences, the adoption should be set aside and OCS should begin to reunify 



her with her grandchildren. The grandmother is correct in her argument that she did not 



receive proper notice of the earlier permanency proceedings.  But because any prejudice 



to the grandmother was cured by the subsequent hearing in which she participated and 



was able to present evidence and cross-examine witnesses, and because the superior 



court   did   not   commit   plain   error   by   finding   good   cause   to   deviate   from   ICWA's 



placement preferences, we affirm the superior court's ruling. 



II.     FACTS AND PROCEEDINGS 



        A.      Initial Removal 



                This case involves four children:   Eddie (born March 1996), Tawny (born 

August   1997),   Callie   (born   January   2001),   and   David   (born   February   2005).1   The 



children's mother, Maddie, is an enrolled member of the Northern Cheyenne tribe.  The 



three younger children's father, Steve, is an enrolled member of the Gulkana Village 

tribe (Gulkana).2    The children were initially taken into OCS custody in May 2006 due 



to their exposure to Maddie and Steve's domestic violence and substance abuse. 



                After OCS obtained custody of the children, the younger three were placed 



with their paternal grandmother and Eddie with his maternal great-grandfather.  The 



placements changed slightly over the year:          In September 2006 Callie was placed with 



Paula, her maternal grandmother, and in January 2007 David was placed with his mother, 



who was undergoing substance abuse treatment. Paula obtained a foster care license and 



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



        2       All the children are enrolled in the Northern Cheyenne tribe and all are 



enrolled or are eligible for enrollment in the Gulkana Village tribe. 



                                                 -3-                                              6671 


----------------------- Page 4-----------------------

by   June   or July   2007   all   four   children   were   in   her   care.3 Gulkana's   former   ICWA 



worker testified that, at that time, she thought Paula was very culturally oriented.  She 



stated that while she had concerns regarding how crowded Paula's house could be, those 



concerns had been addressed. 



                By   January   2008   the   children's   mother   had   made   improvements   and 



completed her first phase of treatment, and so the children were returned to her for a trial 



home visit.    This was unsuccessful, and in July 2008 the children were removed and 



again placed with Paula.        Following a hearing, the permanency plan was then changed 



from reunification to adoption.  OCS identified Paula as a potential adoptive parent.  In 



December 2008 the children's father relinquished his parental rights, and in July 2009 



the children's mother relinquished her rights. 



        B.      Children's Placement With Paula From July 2008 Until Summer 2009 



                In December 2008 a home study for adoption by Paula was completed and 

the   results  of  this  study   were   apparently    mostly    positive.4  Lori   Wikle,   the   OCS 



caseworker, testified that the most pressing concern was whether Paula was committed 



to the long-term adoption of the children. 



                While the children were placed with Paula, Wikle conducted monthly home 



visits.  She testified   that in each progressive visit Paula looked more exhausted and 



appeared to be pulled in many directions with commitments to various family members. 



        3       There is some dispute as to when all four children were in Paula's care. 



While it is unclear exactly when all the children moved from their initial placements to 

Paula, OCS's permanency report to the superior court indicates that by at least July 2007 

all the children were with Paula. 



        4       The home study, although referenced at the hearing, was never admitted 



into evidence.     Paula references facts from the home study throughout her brief.  As 

discussed more fully below, we consider only those facts that were also developed during 

the testimony or in other properly admitted documents. 



                                                  -4-                                            6671
 


----------------------- Page 5-----------------------

Wikle and Valerie Nelson, Gulkana's ICWA worker, testified to a conversation around 



March   2009   between   Paula,   themselves,   and   a   few   others   where   a   different,   more 

suitable placement was discussed.5         Both testified that Paula agreed she "wanted to just 



be grandma" again. 



                At about the same time, OCS began receiving both informal and formal 



reports regarding the children's well-being.          OCS received three reports of harm from 



Gulkana.     Two   reports   were   formal   letters   from   the   tribal   council   and   one   was   an 



informal report from a concerned tribal member.  The reports expressed concerns about 



Paula's extensive travel to Anchorage, the cleanliness of her house, her lack of control 



and supervision of the children, and her practice of driving with the youngest child in the 



car without a car seat. 



                The children were supposed to be attending therapy sessions, but Paula was 



often unable to get the children to the appointments.              Despite OCS's involvement in 



setting up appointments and transportation, Tawny attended only two sessions and Eddie 



and Callie only one.       Tawny told her therapist that Paula had hit her hard enough to 



knock her down and to leave bruises.             Based on this information, the therapist filed a 



report of harm. 



                The children's school also sent notices to OCS regarding the behavior and 



condition of the children.        The school was specifically concerned with Eddie's poor 



grades   and   bullying   behavior   and   Tawny's   lack   of   proper   medication   for   her   skin 



condition.    Additionally, the school was concerned that the children did not have food 



        5       Paula admits that there was a meeting in this time frame but denies that this 



conversation was a formal discussion in which she requested a different placement.  The 

children's placement with Paula appeared to be acceptable to all involved until around 

March 2009.       In February 2009, the superior court noted that the children "are doing 

well" in their current placement. 



                                                  -5-                                             6671
 


----------------------- Page 6-----------------------

in their lunches.6  Wikle investigated these complaints.  The children reported that Paula 



used corporal punishment.   Wikle told Paula that foster parents were not allowed to use 



corporal punishment, but the punishments continued. 



               Sometime in May 2009 Paula became aware that her mother, who lived in 



Montana, was ill and required her assistance.         Paula told OCS that she needed to go to 

Montana three days before she left.7       Based on the emergency need the children were 



placed with the Dubovs, the non-Native foster family with whom they had stayed for 



various other short visits.   Paula supported the placement at that time, but later asserted 



that she thought the placement was temporary, noting that she "was just going to go out 



and take care of some business and come back, and the children would be back with 



[her]."  OCS asserted that Paula "did not want the children back when she left, and [OCS 

was]   working   under   that   premise."8  Accordingly,   OCS   proceeded   to   seek   ICWA- 



compliant long-term placement for the children, treating the Dubovs as a temporary 

placement.9 



        6      Paula testified that she did not pack the children's lunches because they 



participated in a subsidized lunch program. 



        7      Paula suggests that she gave OCS more notice; she relies on an unadmitted 



email between the ICWA worker and Wikle that indicated she requested passports for 

the children, but Paula's own testimony supports OCS's assertion that Paula provided 

three days' notice before leaving the state for a prolonged period of time. 



        8      But there is an unadmitted email sent by OCS that suggests that care would 



be found for the children "while [Paula] is out of state."  Another email from the Dubovs 

stated that both the children and their mother were under the impression that the children 

would return to Paula's care upon her return.        Paula relies on some of these facts in her 

brief, but the facts were not established through admitted evidence or testimony. 



        9      OCS conducted several meetings with Gulkana members, sent a worker to 



another   village,   and   requested   information   from   the   Cheyenne   tribe   searching  for 

                                                                                   (continued...) 



                                                -6-                                          6671
 


----------------------- Page 7-----------------------

         C.      Paula's Return To Alaska 



                 Upon her return to Alaska in August 2009, Paula learned that OCS was not 



planning to return the children to her.  In September 2009 the State did not renew Paula's 



foster   care   license   because   two   of   the   reports   of   harm   made   against   her   had   been 



substantiated.  Wikle testified that even though Paula was no longer considered a proper 



placement, she was willing to try to work with Paula to address the concerns that led to 



the children not being placed with her.   It is unclear from the record whether the denial 



of   the   foster   care   license   or   other   concerns   precipitated   OCS's   refusal   to   return   the 



children to Paula.      But it is clear that the children were never returned to Paula's care, 



and Paula never reapplied for the foster care license. 



                 There   is   some   dispute   between   the   parties   as   to   when   Paula   actually 



requested placement.  Paula testified that while she did not make a formal request, it was 

well   known   to   OCS   that   she   wanted   the   children   returned   to   her   care.10      She   also 



explained that she did not ask that the children be placed with her or attempt to renew her 



foster license because she was trying to work with OCS toward the eventual return of the 



children: 



                 Q.       Did you reapply for your foster care license . . . ? 



                 A.       . . . I figured I had to work with OCS and find out what 

                 was   going   on   and   what   the   process   was   to   even   get   the 

                 children back. 



                 . . . . 



                 Q.       . . . [You] didn't ask for placement of the children at 

                 that time because you were trying to work with everybody 

                 and be cooperative? 



         9       (...continued) 



alternative relative or ICWA-compliant placements. 



         10      It is clear from the record that OCS knew Paula wanted the children back. 



                                                      -7-                                                  6671 


----------------------- Page 8-----------------------

                A.      Well, yeah. Wouldn't that be the first step in trying to 

                regain something? 



                Paula formally made a request for placement in September 2010, and it was 



denied.    OCS asserted that this was Paula's first request for placement, although OCS 



had been working with Paula, calling to set up scheduled visits and leaving cards at her 



door. 



                Paula was still involved with the children after she returned from Montana. 



For several weeks, she provided daycare and after-school care for the children. But OCS 



suspended these visits due to concerns about the children's behavior when they returned 



to the Dubovs. According to OCS, Paula needed to work on OCS's concerns and engage 



in supervised visits in order to continue her relationship with the children.               Visitation 



supervisors were sought at two Gulkana tribal council meetings, and although there were 



two volunteers to supervise the visits, the visits never occurred.  Wikle testified that she 



called and stopped by Paula's house numerous times to connect with Paula in hopes of 



encouraging      a   relationship   with   the   children,   but   Paula   denies   that   these   contacts 



occurred.  At no point did OCS develop a formal plan to help Paula obtain custody of the 



children. 



                In February 2010 OCS filed for temporary and long-term protective orders 



preventing Paula from going near the children.              OCS also implemented a no-contact 



order   for   Paula   and   Maddie   after   Paula   made   allegations,   which   turned   out   to   be 



unsubstantiated, that Mr. Dubov was acting inappropriately toward Callie and Tawny 



and   that the children were generally neglected.           OCS was concerned that Paula had 



"coerc[ed]" Callie into writing a letter alleging inappropriate behavior by Mr. Dubov. 



                Paula's tribe, the Northern Cheyenne, attempted to intervene in the case; 



it was given participant status but denied party status.             Until she left for Montana in 



June 2009, Paula was able to attend all hearings related to the children.                But after her 



                                                  -8-                                             6671
 


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

return, she did not receive notice of the permanency and placement hearings until she 



formally requested and was denied placement in September 2010. 



        D.      Attempts To Find ICWA-Compliant Placement 



                OCS   did   not   initially   intend   the   Dubovs   to   be   a   permanent   placement 



option.     OCS   conducted   several meetings   with   Gulkana   members, sent a   worker   to 



another village, and requested information from the Northern Cheyenne tribe searching 



for relatives or other ICWA-compliant placements.               In early 2010 OCS learned that 



relatives in Montana were interested in taking the children, but although a placement 



request was initiated, OCS found that it was not in the children's best interests to move 



to Montana. 



        E.      The Children's Placement With The Dubovs 



                Before   the   children   were   first   placed   with   the   Dubovs,   they   exhibited 



significant behavioral problems.         Throughout their time with the Dubovs, though, the 



children improved dramatically. Their school performance improved, they become more 



sociable, and they were doing "incredibly well."           Although the Dubovs are not Native, 



they took care to ensure that the children participated in cultural activities, such as a 



dance group, potlatches, and other Gulkana social events.   They also facilitated regular 



contact between the children and their extended family, including their paternal great- 



grandfather. 



                The children and the Dubovs developed a deep family bond.  A psychiatric 



nurse testified that changing placement would be highly traumatic and harmful to the 



children.   In January 2011 the Dubovs adopted all four children. 



        F.      Various Hearings Regarding The Children's CINA Cases 



                After   the   children   were   removed     from   Paula's   care,   several   hearings 



occurred   for   which   Paula   did   not   receive   notice. The   first,   in   July   2009,   was   the 



termination of parental rights proceeding at which the children's mother voluntarily 



                                                  -9-                                            6671
 


----------------------- Page 10-----------------------

relinquished her parental rights.11     In August 2009 a permanency hearing was held at 



which Gulkana's ICWA worker informed the master that the "grandmother [was] okay 



with the plan now." The superior court adopted the master's finding that placement with 



the Dubovs was reasonable and in the children's best interests and that all parties entitled 



to notice had been served with notice of the proceeding.  But Paula was not served with 



notice of this hearing. 



                In December 2009 a status hearing was held, but Paula did not receive 



notice of this hearing.  In July 2010 a permanency hearing was held.   There, the superior 



court determined that a hearing was necessary to consider placement with relatives in 



Montana, who had been denied placement by OCS.               Paula was not given notice of this 



proceeding. 



               The   placement   hearing   was   held   in   September   2010   to   review   OCS's 



placement decision regarding relatives in Montana.   Paula was not given notice and did 



not attend this hearing.     At this hearing, there was a significant amount of testimony 



presented regarding the placement history with Paula and the challenges she faced in 



trying to raise the children.  The master found that there was good cause to deviate from 



ICWA preferences and that placement with the Dubovs was proper because the children 



were bonded with and had expressed a preference to stay with the Dubovs. 



        G.     Paula's Request For Placement 



               In September 2010 Paula formally requested placement of the children with 



her, but OCS denied that request.       Paula sought court review of        OCS's denial of her 



placement     request.     Hearings    on   Paula's   request   were   held   in  November      and 



December 2010 before Magistrate Wilkinson, acting as the standing master.                   At the 



        11     She later tried to revoke the relinquishment, apparently after learning that 



Paula was not going to be the adoptive parent, but was too late. 



                                               -10-                                            6671 


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

hearings, Paula argued that OCS failed to provide proper notice of prior hearings and that 



she was entitled to placement. 



               The    evidence    at  the  hearing   incorporated    the  testimony    from   the 



September 2010 hearing, in which Paula had not participated.  Despite this, the master 



found    that  Paula  was   not  prejudiced    by  OCS's    failure  to  provide  notice  of  the 



permanency hearings and determined alternatively that any harm had been cured by the 



new placement review hearing at which Paula was present and permitted to participate. 



The standing master reasoned that Paula was not entitled to notice of the hearings in 



2009 and 2010 under AS 47.10.088(i) because she was not eligible for a foster care 



license.  The master also determined   that Paula was not entitled to notice of OCS's 



removal of the children because Paula had initiated the removal herself when she left for 



Montana.     Finally, the master found that there was good cause to deviate from ICWA- 



compliant placement and that it was in the children's best interests to remain with the 



Dubovs. 



               Paula filed objections to the master's findings.  The superior court adopted 



the master's findings, noting that Paula had not objected to the master's factual finding 



that there was clear and convincing evidence of good cause to deviate from the ICWA 



placement preferences. 



               Paula now appeals, arguing that the superior court erred when it found that 



OCS's failure to provide notice regarding the CINA proceedings did not prejudice her 



and that the superior court abused its discretion when it found good cause to deviate from 



an ICWA-compliant placement. She argues that the adoption should be set aside and the 



children placed with her so that she can adopt them. 



III.    STANDARD OF REVIEW 



               Whether there was a violation of due process is a question of law that we 



review de novo, adopting "the rule of law that is most persuasive in light of precedent, 



                                              -11-                                         6671
 


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

reason, and policy."12     In a CINA case we review the superior court's factual findings for 



clear error.13  We will reverse only if we are left with "a definite and firm conviction that 



a mistake has been made."14          When reviewing mixed questions of law and fact, we 



review factual questions under the clearly erroneous standard and legal questions using 

our independent judgment.15         We review the superior court's finding of good cause to 



deviate from ICWA placement preferences using an abuse of discretion standard.16 



IV.     DISCUSSION 



        A.      Evidentiary Issues 



                There are two evidentiary issues in this case.  First,  OCS and the guardian 



ad litem (GAL) contend that Paula's brief relies upon evidence that was not admitted in 



the superior court and therefore cannot be relied upon by this court.               Paula argues that 



it   is   "unclear   exactly   what   the   trial   court   relied   on   in   making   its   decision"   and   that 



therefore the entire trial file should be reviewable.          Paula also argues that unadmitted 



documents generated by OCS do not present concerns about reliability. 



        12      D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 207 (Alaska 



2000) (internal quotation marks omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 

(Alaska 1979)). 



        13      Maisy   W.   v. State,   Dep't   of   Health   &  Soc.   Servs.,   Office   of   Children's 



Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citing Brynna B. v. State, Dep't of Health 

& Soc. Servs., 88 P.3d 527, 529 (Alaska 2004)). 



        14      Id.   (internal   quotation   marks   omitted)   (quoting  A.B.   v.   State,   Dep't   of 



Health & Soc. Servs. , 7 P.3d 946, 950 (Alaska 2000)). 



        15      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 



204 P.3d 1013, 1018 (Alaska 2009) (citing A.M. v. State , 945 P.2d 296, 304 n.10 (Alaska 

1997)). 



        16      C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001) (citing Adoption of N.P.S. , 



868 P.2d 934, 936 (Alaska 1994)). 



                                                  -12-                                            6671
 


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

                OCS   and   the   GAL   are   correct   that   Paula   has   improperly   relied   upon 



exhibits that were not admitted in the superior court. Paula relies heavily on exhibits that 



were not admitted into evidence, particularly the home study and various OCS notes. 



We   have   noted   that   although   under   Appellate   Rule   210(a)(1),   unadmitted   exhibits 



"become 'documents' in the court file" and are therefore not stricken from the record, 



because     parties   have   "no   opportunity     to  respond    to  [them]   or  challenge    [them]," 

unadmitted exhibits are to be afforded no weight.17            Paula has not asserted a claim that 



the master erroneously excluded these documents from evidence.  Accordingly, we give 



no weight to these unadmitted assertions.           Paula also claims that "it is unclear exactly 



what the trial court relied on in making its decision, so anything the trial court may have 



considered should be reviewable." (Emphasis added.)                 A closer look, however, reveals 



that Paula is actually making claims about the master's interpretation of evidence and is 



incorrect in her allegation that the master relied   on   evidence that was not presented 

during the hearing.18     Thus, we will consider only the evidence that was admitted at the 



hearing. 



                Paula     next   argues    that  the  master's    reliance    on  evidence     from   the 



September 2010 hearing violated her right to due process because she was not present 



at   that   hearing   and   thus   did   not   have   the   opportunity   to   cross-examine   witnesses. 



        17      Moffitt v. Moffitt , 749 P.2d 343, 348 n.4 (Alaska 1988). 



        18      For example, Paula argues the master found that she knew the children 



would not be returned to her once she got back from Montana even though there was 

evidence to the contrary, and she also argues the master found that the Dubovs were not 

considering adoption in the fall of 2009 despite "evidence" that they were doing so. 

However, in both those cases the master relied upon evidence that was presented.  There 

was testimony that Paula herself initiated the removal of the children from her care, and 

the evidence admitted in court suggested that the Dubovs supported Native placement. 

Although there was evidence that the Dubovs were seeking adoption or at least that it 

was an option in August 2009, it was not admitted at the hearing. 



                                                  -13-                                             6671
 


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

Because this argument was only raised in Paula's reply brief, OCS did not address it. 



The GAL, however, did address this issue in her brief, pointing out that while Paula was 



not   given   notice   of   the   hearing   and   did   not   attend,   she   was   given   notice   that   the 



testimony would be used at the later hearing and could have called and examined or 



cross-examined any witness from the earlier hearing. The GAL also points out that Paula 



did not object to the use of the September 2010 evidence at the later hearing. 



                The GAL is correct in her assertion that Paula was given notice of OCS's 



intent to rely on the September 2010 hearing.  The proper time for Paula to have raised 



this argument was in the superior court.  The CINA rules provide for the introduction of 

the previous testimony,19 and because Paula did not object to the master's consideration 



of the evidence from the September 2010 hearing, the master cannot be faulted for her 



consideration of that evidence. 



        B.	     The Failure To Provide Statutorily Mandated Notices In The CINA 

                Proceedings Did Not Violate Due Process. 



                Paula raises several claims that she was denied due process. She argues that 



she should have been provided with notice of her right to challenge placement in 2009, 



her   right   to   challenge   denial   of   visitation   with   the   children,   and   her   right   to   attend 



permanency hearings in 2009.           We address each separately as different rules apply to 



each.  In each case, we ask two questions: first, whether Paula was entitled to notice, and 



second, whether failure to provide notice was a violation of her due process rights. 



        19	     CINA Rule 17(e) provides: 



                Hearsay       which    is   not   otherwise     admissible     under     a 

                recognized exception to the hearsay rule may be admissible 

                at the disposition hearing and in review of a disposition order 

                if   the    hearsay    is   probative    of   a   material    fact,   has 

                circumstantial       guarantees      of   trustworthiness,     and    the 

                appearing parties are given a fair opportunity to meet it. 



                                                  -14-	                                            6671
 


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

                 1.       The transfer of placement 



                 Paula   argues   that   as   a   foster   parent   she   was   entitled   to   notice   of   the 



children's   transfer   of   placement   from   her   care   in   July   2009.      She   argues   that   the 



children's   placement   with   the   Dubovs   while   she   was   in   Montana   was   a   temporary 

placement and that she was entitled to notice once OCS decided to make it permanent.20 



Additionally,       she   construes     this   placement      decision    as   "essentially    a   denial   of 



placement," and therefore argues that she was entitled to know the basis for the removal 



and to request a hearing.  OCS and the GAL concede that there was no notice, but argue 



that Paula was not entitled to notice because she initiated the transfer. 



                 Alaska   Statute   47.10.080(s)   provides   that   foster   parents   are   entitled   to 



notice     of  non-emergency         transfers    of   children    for   whom      they   are   caring,   and 



AS 47.14.100(m) provides that grandparents are entitled to notice of the right to appeal 



an OCS decision   not to place a child with them.                 Paula was the foster parent and a 



grandmother        and    thus   would     have    been    entitled   to   notice   of   a  transfer    under 



AS 47.10.080(s) and AS 47.14.100(m). But in this case, she did have notice because she 



requested the transfer herself.         Although Paula disputes that she requested the transfer, 



the master found that Paula initiated the removal of the children, and Paula does not 



argue that the finding is clearly erroneous.   Because Paula initiated the transfer, she had 



notice of the transfer. 



                 Paula also argues that she was entitled to notice when the State denied her 



request that the children be returned to her upon her return from Montana.                       The record 



         20      Paula also argues that OCS's position on whether this was a non-emergency 



transfer   has   changed   over   the   course   of   litigation.   OCS   did   put   forth   an   alternative 

argument that AS 47.10.080(s) did not entitle Paula to notice of transfer because it was 

an   emergency   transfer,   but   even   there   OCS   noted   that   Paula   had   requested   that   the 

children be moved. In any event, whether it was a non-emergency or emergency transfer 

does not matter in the analysis as Paula requested the transfer. 



                                                     -15-                                               6671
 


----------------------- Page 16-----------------------

is somewhat vague, however, as to whether Paula actually requested placement of the 



children with her before the fall of 2010.   The record does demonstrate that Wikle was 



trying to work with Paula to take the steps necessary to remain in the children's lives; 



according to the master's findings, Paula did not cooperate with Wikle, did not reapply 



for a foster care license, and interfered with the children's placement with the Dubovs. 



Again, Paula does not challenge these findings. 



              2.      Denial of unsupervised visitation 



              Paula argues that under AS 47.10.080(p), OCS was required to provide her 



with the reasons for denying her visitation with the children and inform her of her right 



to request a hearing on that decision.    OCS and the GAL respond that Paula was not 



denied visitation but rather was denied unsupervised visits.   OCS maintains that it took 



immediate steps to enable continued visitation, but Paula failed to follow through with 



supervised visits, despite the availability of volunteer supervisors from Gulkana.      OCS 



asserts that it was Paula's "complete lack of engagement" and her "own conduct [that] 



caused the termination of visitation, so the notice requirement was not triggered." 



              Alaska Statute 47.10.080(p) requires OCS to provide reasonable visitation 



to family members, and, where visitation is denied, the "department shall inform the . . . 



family member of a reason for the denial and of the . . . family member's right to request 



a review hearing."    The master did not make specific findings regarding the visitation, 



presumably because the hearing was to address OCS's placement denial.  However, the 



master understood that Paula was permitted to have supervised visits and noted that 



Paula had failed to pursue visitation supervised by the Gulkana volunteers.  Paula does 



not dispute that supervised visits were offered and even admits to the difficulties in trying 



to schedule the visits.  Because Paula was not denied reasonable visitation, there was no 



requirement to provide notice under AS 47.10.080(p). 



                                            -16-                                        6671
 


----------------------- Page 17-----------------------

                3.      Permanency and placement hearings 



                Paula next argues that as a grandparent she was entitled to notice of the 



permanency hearings that occurred in August 2009 and July 2010.                     OCS and the GAL 



do not dispute that OCS failed to provide notice, but they argue that the lack of notice 



did not prejudice Paula because, as the master found, any problems were cured by the 



subsequent hearing where Paula was present and able to participate fully. 



                The master found that AS 47.10.088(i) relieved OCS of its duty to provide 



notice to Paula because she was not eligible for a foster care license.                But Paula was 

entitled   to   notice   of   the   permanency   hearings.    Alaska   Statutes   47.10.030(d)21      and 



47.10.080(f)22 provide that grandparents should receive advance written notice of all 



proceedings      concerning     the  children,    including    permanency      hearings.    Paula    is  a 



grandparent and accordingly is entitled to notice under these statutes. 



                Because Paula was entitled to notice of the permanency hearings, we turn 



to the question whether the failure   to provide notice was a violation of Paula's due 



        21      AS 47.10.030(d) provides: 



                Except as provided in (e) of this section, the department shall 

                give advance written notice of all court hearings in a child's 

                case to a grandparent of the child if 



                . . . . 



                (2)     the    department      is   aware    that   the   child   has    a 

                grandparent and the grandparent's mailing address is on file 

                with the department. 



        22      AS 47.10.080(f) provides, in relevant part: 



                The persons entitled to notice under AS 47.10.030(b) and the 

                grandparents entitled to notice under AS 47.10.030(d) are 

                entitled    to  notice    of  a  permanency       hearing    under    this 

                subsection and are also entitled to be heard at the hearing. 



                                                  -17-                                             6671
 


----------------------- Page 18-----------------------

process rights.        Paula argues that the failure to provide her with appropriate notice 



prejudiced her and impacted the outcome of the placement decisions. She argues that the 



master and the superior court improperly determined that the lack of notice was harmless 



error.   She argues that harm was demonstrated because the master relied heavily on the 



children's bonding with the Dubovs in affirming OCS's placement decision and because 



she was unable to present her position to the court. OCS and the GAL respond that Paula 



was not prejudiced by the lack of notice, or alternatively, that any prejudice was cured 



by the hearing that was finally held to review placement. 



                 When determining the requirements of due process, we employ a three- 

factor test:23 



                 [I]dentification      of  the   specific    dictates   of   due   process 

                 generally     requires   consideration      of   three   distinct   factors: 

                 First, the private interest that will be affected by the official 

                 action; second, the risk of an erroneous deprivation of such 

                 interest through the procedures used, and the probable value, 

                 if any, of additional or substitute procedural safeguards; and, 

                 finally,   the   Government's   interest,   including   the   function 

                 involved and the fiscal and administrative burdens that the 

                 additional      or  substitute     procedural     requirement       would 

                 entail.[24] 



                 We have held that "[t]he crux of due process is opportunity to be heard and 

the   right   to   adequately   represent   one's   interests."25   Generally,   notice   ensures   these 



        23       D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska 



2000) (citing Mathews v. Eldridge , 424 U.S. 319 (1976)). 



        24       Id. (citing Mathews , 424 U.S. at 334-35). 



        25       Id. at 213-14 (internal quotation marks omitted) (quoting Matanuska Maid, 



Inc. v. State , 620 P.2d 182, 192 (Alaska 1980)). 



                                                    -18-                                              6671
 


----------------------- Page 19-----------------------

rights.26  The government interest in not providing notice is rarely significant because 



"notice   requirements   impose   little   fiscal   or   administrative   burden   upon   government 

agencies."27     Even   if   notice   is   inadequate,   "the   opportunity   to   be   heard   can   still   be 



preserved and protected if a party actually appears" and presents his or her claim.28 



                Although we have never directly addressed the question of a grandparent's 



due process rights in CINA proceedings, we have previously noted that failure to provide 

notice   might   result   in   the   violation   of   due   process.29 We   have   also   stated   that   the 



"placement of children and the involvement of grandparents in their grandchildren's 

lives are not matters to be taken lightly."30      The legislature's requirement that OCS must 



provide grandparents with notice in CINA proceedings similarly strongly supports the 



idea that grandparents have a protectable interest in such proceedings. 



                Because notice is required by statute, and because grandparents have a 



strong interest in the outcome of CINA proceedings, the first and third prongs of the 



Mathews test weigh in favor of finding a due process violation.                However, the second 



prong of the Mathews test requires us to ask whether additional process would have 



benefited Paula.  In other words, we must ask whether Paula was likely to have achieved 



a more favorable outcome if she had been given notice of the 2009 permanency hearings. 



        26      Id. at 214 (citing Matanuska Maid , 620 P.2d at 193). 



        27      Id. at 212. 



        28      Id. at 214 (internal quotation marks omitted) (quoting Matanuska Maid , 620 



P.2d at 193). 



        29      Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 



177 P.3d 1181, 1185 (Alaska 2008) (Jacob I) (declining to comment fully on whether 

failure to provide notice is a violation of due process). 



        30      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Jacob, 



214 P.3d 353, 362 (Alaska 2009) (Jacob II). 



                                                  -19-                                             6671
 


----------------------- Page 20-----------------------

Although   the due process analysis is a flexible and   contextual one focusing   on   the 

interest and not the outcome,31 there must be some actual prejudice under the second 



prong and not merely the "theoretical possibility of prejudice."32 



                This appeal presents a close case.           OCS plainly failed in its obligation to 



provide Paula with the notice to which she was entitled.               As far as we can tell from the 



record, OCS has provided no excuse for its failure. Nonetheless, we still must determine 



the   extent   to   which   Paula's   absence   from   the   two   permanency   hearings   may   have 



prejudiced her case.  A permanency hearing was held on August 26, 2009, shortly after 



Paula    had   returned    to  Alaska.    Under     CINA     Rule   17.2(a),   "[t]he   purpose    of  the 



permanency   hearing   is   to   establish   a   permanency   plan   for   each   child."    Before   the 



August      2009    permanency      hearing,    the   permanency      plan   was    adoption,    and   the 



permanency plan was not changed at the hearing.   At the permanency hearing, the court 



was evidently told that the "grandmother is okay with the plan now."                  The court found 



that   placement   with   the   Dubovs   was   reasonable   in   light   of   the   permanency   plan   of 



adoption. At about this time, OCS substantiated two reports of harm made against Paula, 



and she was consequently denied a renewal of her foster care license.                    It is therefore 



unlikely that Paula's presence would have changed the result of the hearing. 



                At    the  second    hearing    the   superior   court   determined      that  continued 



placement with the Dubovs was appropriate, and a placement hearing was set to review 



OCS's denial of placement with relatives in Montana.                Nothing in the record suggests 



that Paula was prejudiced by her absence from this hearing. 



        31      D.M. , 995 P.2d at 218 (Bryner, J., dissenting) (citing Mathews , 424 U.S. 



at 334-35). 



        32      Id. at 212. 



                                                  -20-                                                6671 


----------------------- Page 21-----------------------

                 The   September   2010   placement   hearing   is   more   complicated.           Under 



AS 47.10.030(d), Paula was entitled to notice of this hearing.                But OCS again failed to 



provide the required notice and, in Paula's absence, there was a significant amount of 



testimony relating to Paula's parenting and the children's initial placement with the 



Dubovs.  OCS relied upon this testimony at Paula's placement hearing.  However, at her 



later placement hearing Paula was able to call witnesses and present her own evidence 



to   contradict   the   testimony   at   the   earlier   hearing.   For   example,   testimony       at   the 



September 2010 hearing regarding the conversation about Paula wishing to return to her 



status   as   "just   [a]   grandma"    was   further   developed   at   Paula's   placement   hearing. 



Although OCS's dereliction prevented her from responding to the evidence against her 



at the September 2010 hearing itself, she was able to fully address the evidence ten 



weeks later in her own proceedings.  It does not appear that Paula was prejudiced by this 



delay in presenting her evidence. 



                 Paula   argues   that   the   entire   one-year   period   during   which   she   did   not 



receive notice of hearings prejudiced her case because the judge found that the children 



became deeply bonded with the Dubovs in that time.                  But this overstates the master's 



reliance on the bonding between the Dubovs and the children.  Although the master did 



note the family bond and the children's marked improvement in behavior as factors in 



the decision to deny placement with Paula, they were only a few of the many elements 



the master considered.        The master found that Paula was not a good placement in this 



case because she lacked parenting skills and OCS had received substantiated reports of 



harm to the children while in Paula's care.           Moreover, the master found that Paula did 



not   cooperate   or   work   with   OCS   to   facilitate   a   relationship   with   her   grandchildren. 



Further,   the   master   found   that   it   was   Paula's   "feud   with   Gulkana   village   and   her 



allegations of harm against" Mr. Dubov that prevented her bonding with the children, not 



the length of time the children were with the Dubovs. 



                                                   -21-                                              6671
 


----------------------- Page 22-----------------------

                The crux of the due process claim here is that Paula was not afforded the 



opportunity   to   be   heard   until   the   hearings   in   November   and   December   2010.       But 



although OCS failed in its duty to provide Paula with legally required notices, Paula later 



had a full opportunity to be heard.  Had Paula not been provided with the opportunity to 



be heard, her due process rights would have been violated.   But the subsequent hearings 



allowed her to "adequately represent [her] interests," curing any due process violation 

stemming from OCS's failure to provide earlier notice.33              After hearing from Paula and 



her witnesses and considering all of Paula's evidence, the master found that Paula was 



not a proper placement. 



                The dissent argues that had Paula participated, and especially had she been 



present at the September 2010 placement hearing, she would have been better able to 



present her arguments and respond to the evidence against her.   But Paula ultimately did 



get that chance - she had a full hearing, after which the master made findings, which 



even now Paula   does   not challenge.         Nonetheless, the dissent would allow Paula to 



reopen the children's adoption to give her another hearing on the precise issue that was 



already litigated at her placement hearing. The dissent would do this despite recognizing 

the "considerable pain" and "potential anguish" it could cause the children.34                 Here the 



children have lived with the Dubovs for almost three years, have been adopted by the 



Dubovs,   refer   to   the   Dubovs   as   their   "mom"   and   "dad,"   and   are   reportedly   doing 



"incredibly well" with the Dubovs.           Yet the dissent would give Paula essentially the 



same hearing she already had, despite the fact that Paula does not now challenge the 



        33      D.M. ,   995   P.2d   at   213-14   (internal   quotation   marks   omitted)   (quoting 



Matanuska Maid, Inc. v. State , 620 P.2d 182, 192 (Alaska 1980)). 



        34      Dissent at 42 n.16. 



                                                  -22-                                               6671 


----------------------- Page 23-----------------------

critical factual findings on which the superior court based its decision that she was not 

a suitable placement.35 



                The dissent further seems to suggest that it is relevant to our analysis that 



"[w]e have been troubled many times in recent years by the State's failure to meet its 

statutory requirements concerning handling of children's cases."36               The dissent remarks 



that although we have "upheld the State's action[s]" in those cases as "good enough," 

it cannot "join in this approach in the case before us."37         But we address each case on its 



own merits, and our job is to determine whether the superior court has erred in its factual 



findings or legal conclusions.        Any frustration with OCS should not lead us to adopt a 



"last-straw"   doctrine   of   jurisprudence.      Whether   or   not   OCS   may   have   tested   the 



boundaries of acceptable effort in a past case has no bearing on whether Paula's rights 



        35      The dissent goes a step further, suggesting that at such a remand hearing, 



the trial court would be required to blind itself to any evidence of how well the children 

are   doing   in   their   current   placement.   Dissent   at   42   n.16. Yet,   we   have   repeatedly 

stressed that even when analyzing whether there is good cause to depart from the ICWA 

placement preferences, "the best interests of the child remain paramount."  Adoption of 

N.P.S. , 868 P.2d 934, 936 (Alaska 1994) (citing In re Adoption of F.H. , 851 P.2d 1361, 

1363-64 (Alaska 1993)); see also L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 

946, 955 (Alaska 2000) (noting that "[c]ourts in other jurisdictions have held that 'the 

certainty of emotional or psychological damage to the child if removed from the primary 

caretaker may also be considered by the court in determining whether good cause exists 

to deviate from the placement preferences of . . . ICWA.' ") (quoting People ex rel. 

A.N.W. , 976 P.2d 365, 369 (Colo. App. 1999)).  The exclusionary rule proposed by the 

dissent, in which the finder of fact would be precluded from hearing any evidence as to 

the children's bonding with the Dubovs and the likely emotional harm that would come 

from undermining the adoption, would effectively invert the usual analysis by giving 

Paula's interest in having the children placed with her precedence over the children's 

best interests. 



        36      Dissent at 40. 



        37      Dissent at 40-41. 



                                                  -23-                                             6671
 


----------------------- Page 24-----------------------

were violated in this case.   Further, although OCS failed to provide the required notice 



in this case -   and we certainly do not condone that failure - our job is to analyze 



whether   this   error   was   prejudicial   in   light   of   the   later   hearing   where   Paula   had   an 



opportunity to appear and be heard.          Here the case turns on the question of prejudice. 



Given   that   Paula   has   not   challenged   any   of   the   master's   factual   findings   after   the 



November and December 2010 hearings where she had a full opportunity to put on 



evidence and call or re-call witnesses and cross-examine them, we conclude that the 

prejudice from OCS's failure to provide the required notice was cured.38 



                We conclude that Paula was entitled to notice of the permanency hearings 



and placement hearings after May 2009.  But based on the superior court's unchallenged 



findings, we conclude that any prejudice was cured by Paula's ability to participate fully 



at the placement review hearings in November and December 2010. Paula's due process 



rights were therefore not violated. 



        C.	     The Superior Court Did Not Err In Finding Good Cause To Deviate 

                From ICWA Placement Preferences. 



                Paula next argues that the superior court erred in finding good cause to 



deviate from ICWA's placement preferences. ICWA establishes placement preferences 

for Indian children in foster homes and preadoptive settings.39           The Dubovs do not meet 



any of the criteria set out in ICWA's placement preferences. Paula would normally be 



entitled to preferential placement unless the superior court found good cause to deviate 



        38      The dissent is also understandably concerned about the fact that several of 



Paula's exhibits were not introduced into evidence at the hearing, as well as the foster 

father's role as a tribal representative.       Dissent at 41 n.14, n.15.       But Paula does not 

challenge the exclusion of evidence, nor does she challenge the foster father's tribal 

association.  Therefore, there is no basis for considering these facts as part of Paula's due 

process challenge. 



        39      25 U.S.C.  1915(b) (2006). 



                                                 -24-	                                           6671
 


----------------------- Page 25-----------------------

from the placement preferences.   Here the superior court adopted the master's findings 



that there was good cause to deviate from ICWA's placement preferences. 



                 1.	     Paula failed to preserve this argument by failing to object to the 

                         master's findings below. 



                 Although Paula now argues that the superior court erred on this point, the 



superior court noted that Paula failed to object to the master's findings that there was 



good cause to deviate from ICWA placement preferences.                     OCS argues that Paula has 



consequently waived the argument.             Paula makes no response. 



                 OCS is correct. We have held that "Alaska Civil Rule 53(d)(2) requires any 



party who disagrees with a master's finding to file a timely objection to the finding at the 

trial court level as a prerequisite to challenging the finding on appeal."40                  If there is a 



failure to object then this court may only review for plain error.41 



                 Before   the   superior   court,   Paula   raised   two   objections   to   the   master's 



findings.     She   objected   to   the   "[m]aster's   finding   that   Alaska   Statute   47.10.088(i) 



relieves the State of its duty to provide notice" and the master's finding that the "State's 



failure   to   provide   the   requisite   notices   to   her   did   not   prejudice   her." She   made   no 



mention   of   the   master's   findings   of   good   cause   to   deviate   from   ICWA's   placement 



preferences.      Because   Paula   failed   to   object   below,   we   review   the   superior   court's 



findings only for plain error.         Plain error exists "where an obvious mistake has been 

made which creates a high likelihood that injustice has resulted."42               Under this standard, 



        40       Duffus v. Duffus , 72 P.3d 313, 318 (Alaska 2003). 



        41       Id. at 319. 



        42       Id. at 319 (internal quotation marks omitted) (quoting D.J. v. P.C. , 36 P.3d 



663, 668 (Alaska 2001)). 



                                                    -25-	                                             6671
 


----------------------- Page 26-----------------------

we conclude that it was not plain error for the   superior court to find good cause to 



deviate from ICWA's placement preferences. 



                2.	     The     superior      court's    decision     to  deviate     from     ICWA's 

                        placement preferences was not plain error. 



                Paula argues that there was not good cause to remove the children from her 

care.43  She argues that there was never any inquiry into whether the children's placement 



complied   with   ICWA   in   2009.      OCS   and   the   GAL   do   not   directly   respond   to   this 



argument, instead focusing on whether there was good cause to deviate from ICWA 



placement preferences more generally. 



                Paula's argument is contingent upon her claim that she did not agree to 



having the children removed, a claim rejected by the master in a factual finding that was 

not   challenged   by   Paula.44    As   Paula   recognizes,   25   U.S.C.      1916   provides   that 



"[w]henever an Indian child is removed from a foster care home or institution for the 



purpose of further foster care, preadoptive, or adoptive placement, such placement shall 



be in accordance with the provisions of this chapter . . . ."          This statute means that OCS 



cannot evade ICWA's placement preferences by a second removal. Paula argues that the 



children's   placement   with   the   Dubovs   upon   removal   from   her   care   was   not   ICWA 



compliant   and   that   there   was   no   inquiry   into   whether   the   placement   complied   with 



ICWA.      But before the master determined at the September 2010 hearing and Paula's 



placement      hearings    that  there  was    good   cause    to  deviate   from   ICWA-compliant 



placements, the master considered the factual circumstances of the initial removal from 



        43      Based on the argument heading in her brief Paula appears to argue that OCS 



needed to show good cause to remove the children; however, this argument is not clearly 

developed in the body of her brief.          Instead she focuses on OCS's alleged trickery in 

removing the children after she left for Montana. 



        44      A significant portion of her argument also relies on facts that were not 



admitted at trial. 



                                                  -26-	                                           6671
 


----------------------- Page 27-----------------------

Paula's   care.    The   master   heard   evidence   about   OCS's   attempts   to   locate   ICWA- 



compliant placement, as well as Paula's failure to   work cooperatively with OCS on 



supervised visitation or the steps necessary to become an acceptable placement. 



                 Paula also argues that the children's placement with the Dubovs violated 



ICWA.  She asserts that the master improperly placed the burden on her to show that she 



was   a   suitable   placement   and   that   OCS   failed   to   show   good   cause   to   deviate   from 



placement preferences.        OCS and the GAL argue that there was good cause to deviate 



from the placement preferences. 



                 Paula's arguments are  unconvincing.  While she is correct that OCS bears 

the burden of showing good cause to deviate from placement preferences,45 it was not 



plain error for the superior court to find that OCS had met that burden.  Indeed, there is 



ample evidence in the record supporting the superior court's good cause finding. 



                 Although      ICWA      does   not   define   "good     cause,"    we   have   held    that 



"[w]hether   there   is   good   cause   to   deviate   from   ICWA's   placement   preferences   in   a 

particular case depends on many factors."46            We have previously looked to the Bureau 



of Indian Affairs guidelines for examples of factors that would support good cause to 

deviate,47 including: 



                 (i)     The request of the biological parents or the child when 

                 the child is of sufficient age. 



        45      Adoption of N.P.S. , 868 P.2d 934, 936 (Alaska 1994). 



        46      L.G.  v. State, Dep't of Health   & Soc. Servs., 14 P.3d 946, 954 (Alaska 



2000) (quoting In re Adoption of F.H., 851 P.2d 1361, 1363-64 (Alaska 1993)). 



        47      David   S.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of   Children's 



Services, 270 P.3d 767, 782 (Alaska 2012); L.G., 14 P.3d at 954; F.H., 851 P.2d at 1364. 



                                                   -27-                                              6671
 


----------------------- Page 28-----------------------

                (ii)    The extraordinary physical or emotional needs of the 

                child    as  established    by   testimony     of  a  qualified   expert 

                witness. 



                (iii)   The unavailability of suitable families for placement 

                after   a  diligent   search    has  been    completed     for  families 

                meeting the preference criteria.[48] 



We have noted that "the certainty of emotional or psychological damage to the child if 



removed from the primary caretaker may also be considered by the court in determining 

whether good cause exists to deviate from the placement preferences of . . . ICWA."49 



Most   significantly,   we   have   held   that   "[a]lthough   ICWA   and   the   guidelines   draw 

attention to important considerations, the best interests of the child remain paramount."50 



                Applying these principles here, we conclude that the master did not clearly 



err in finding good cause to deviate from ICWA's placement preferences.                     First, OCS 



made significant efforts to locate possible ICWA-compliant placement after the children 



were no longer in Paula's care.   Wikle requested relative searches through the Gulkana 



tribe, requested that the licensing unit locate an ICWA-compliant home, sent an OCS 



worker   to   another   village   to   speak   with   possible   relative   placements,   and   once   the 



Northern Cheyenne was identified as a possible tribal affiliation, sent letters to that tribe 



seeking relative placement.        A possible relative placement was found in Montana, but 



OCS rejected that placement because it was not in the best interests of the children. 



                The superior court also adopted the master's findings that the   children 



"have suffered trauma at the hands of" their caregivers, including Paula.  And there was 



        48      Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. 



Reg. 67,584, 67,594 (Nov. 16, 1979). 



        49      L.G. , 14 P.3d at 955 (internal quotation marks omitted) (quoting People ex 



rel. A.N.W., 976 P.2d 365, 369 (Colo. App. 1999)). 



        50      N.P.S. , 868 P.2d at 936 (citing F.H., 851 P.2d at 1363-64). 



                                                  -28-                                             6671
 


----------------------- Page 29-----------------------

evidence, including expert testimony, that the children were bonded and stable in their 



current placement and that removal would cause emotional harm.                    The superior court 



also took into account the older children's preferences to be adopted by the Dubovs, and 



the court found that the children were tied to the geographic region where the Dubovs 



live.    Finally,   there   was   evidence   that   the   Dubovs   maintained   cultural   ties   with   the 



children's tribe, taking them to potlatch   ceremonies, dance groups, and other social 



events. 



                In adopting the master's findings, the superior court correctly noted that 



OCS must show by clear and convincing evidence that good cause existed to deviate 



from    placement     preferences.      Thus,    the  evidence    was   reviewed     using   the  proper 

standard.51    Although   Paula   points   to   a   conflict   in   the   evidence   on   the   good   cause 



finding, some of this evidence was never admitted in the hearings, and we thus afford it 

no weight.52    Further, the simple existence of contradictory evidence does not mean that 



the master committed plain error when finding good cause to deviate from the ICWA 



placement preferences.         Because ample evidence exists to support the superior court's 



decision, it was not plain error. 



        51      As   to   Paula's   argument   concerning   impermissible   burden   shifting,   the 



master correctly noted that AS 47.14.100(m) provides that the failure to qualify for a 

foster care license is prima facie evidence of good cause not to place a child with that 

adult.   The master then noted that this applied to Paula because her foster care license 

was not renewed and she failed to overcome the presumption that she was not a proper 

placement.      The master did not, however, require Paula to prove that there was good 

cause to deviate from ICWA placement preferences.  Good cause to deviate from ICWA 

placement preferences is a distinct analysis from the decision to place with any particular 

person.  See In re Adoption of Sara J., 123 P.3d 1017, 1019-20 (Alaska 2005) (affirming 

superior     court's   determination      of  good   cause    to  deviate   from    ICWA      placement 

preferences and allow three Indian children to be adopted by a Caucasian foster parent 

even where there were local tribal members willing to adopt the children). 



        52      See Moffitt v. Moffitt, 749 P.2d 343, 348 n.4 (Alaska 1988). 



                                                  -29-                                             6671
 


----------------------- Page 30-----------------------

V.    CONCLUSION 



             For the foregoing reasons, we AFFIRM the superior court. 



                                       -30-                                  6671
 


----------------------- Page 31-----------------------

CARPENETI, Chief Justice, with whom STOWERS, Justice, joins, dissenting. 



                The court today upholds the removal of Indian children from their family 



and, with no notice by the State of critical hearings in the case to the family for over a 



year, the children's eventual placement with a non-Indian couple.                 Because the failure 



to provide notice to the children's family for over a year was a sharp violation of Alaska 



law,    and   because    the  State  has   not  shown     that  these  violations    were   harmless,    I 



respectfully dissent from today's opinion. 



                Maddie is the mother of four Indian children; Paula is Maddie's mother and 



the children's grandmother.         In 2006, when Maddie was a victim of domestic violence 



and struggled with alcohol abuse, the children were removed from   her   custody and 



placed with Paula.      Although Maddie was able to regain custody of her children once, 



she relapsed and the children were returned to Paula.  Maddie relinquished her parental 



rights in 2009, believing that Paula would adopt the children. 



                Alaska law includes strong protections for the rights of grandparents to 



have notice of hearings involving their grandchildren and to be heard at those hearings. 



Alaska Statute 47.10.030(d) provides that "the department shall give advance written 



notice    of  all  court  hearings    in  a  child's   case  to  a  grandparent."      Alaska     Statute 



47.10.080(f) provides that "the grandparents . . . are entitled to notice of a permanency 



hearing under this subsection and are also entitled to be heard at the hearing."                 As the 



children's   grandparent,   Paula   was   entitled   to   notice   of   all   hearings   concerning   the 



children   and   to   be   heard   at   those   hearings. But   in   fact   there   were   several   hearings 



concerning the temporary placement of the children and the plans for their permanent 



placement that took place without any notice to Paula and consequently without her 



participation. 



                Paula argues that failing to provide her of notice of these hearings deprived 



her of the right to due process.  "The crux of due process is opportunity to be heard and 



                                                  -31-                                             6671
 


----------------------- Page 32-----------------------

the right to adequately represent one's interests."1              While conceding that Paula was 



entitled to notice and the right to be heard with regard to these proceedings, this court 



ultimately concludes that Paula is entitled to no relief because these violations were 



harmless - that is, she was not prejudiced by the lack of notice or that any prejudice was 



cured by later hearings for which Paula was given notice.                    Upon close examination, 



however,   these   conclusions   are   highly   problematic.         Paula's   absence   at   the   earlier 



hearings initiated a cascading stream of consequences that severely undercut her ability, 



over a year later (when she was finally notified what was happening), to present her case 



for placement of her grandchildren with her. 



                 There were two permanency hearings, one in August 2009 and one in July 



2010, and a placement hearing, in September 2010, for which Paula did not receive 



notice.   I examine each in turn. 



                 The August 2009 Permanency Hearing 



                 In August of 2009 Paula, having just returned from her trip to Montana to 



care for her ailing mother, expected that the children would be placed back with her. 



The     State,  having     given   credence     to  tribal   criticisms   of   Paula   coming      through 



Tribal     Administrator      Dubov,     was    at  that  time    moving     away     from    Paula   as   a 



                                                                                                     2 

placement        option.    A    permanency        hearing     is   required     by   Alaska      law    to 



        1       D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 213-14 (Alaska 



2000) (quoting Matanuska Maid, Inc. v. State , 620 P.2d 182, 192 (Alaska 1980)). 



        2        CINA Rule 17.2 (e), (f), and (i) provide: 



                 (e) Findings. The court shall make written findings, including 

                 findings related to 



                 (1) whether the child continues to be a child in need of aid; 



                 (2)  whether   the   child   should   be   returned   to   the   parent   or 

                                                                                           (continued...) 



                                                   -32-                                              6671
 


----------------------- Page 33-----------------------

2       (...continued)
 



        guardian, and when;
 



        (3) whether the child should be placed for adoption or legal 

        guardianship and whether the Department is in compliance 

        with AS 47.10.088(d) relating to the filing of a petition for 

        termination of parental rights; 



        (4) whether the child should be placed in another planned, 

        permanent living arrangement and what steps are necessary 

        to achieve the new arrangement; and 



        (5) in the case of a child who has attained age 16, the services 

        needed to assist the child to make the transition from foster 

        care to independent living or adult protective services. 



         . . . . 



        (f) Additional Findings. In addition to the findings required
 

        under     subsection      (e),  the  court   shall   also   make    written
 

        findings related to
 



        (1)  whether   the   Department   has   made   reasonable   efforts 

        required   under   AS   47.10.086   or,   in   the   case   of   an   Indian 

        child,   whether   the   Department   has   made   active   efforts   to 

        provide      remedial   services     and   rehabilitative    programs      as 

        required by 25 U.S.C. Sec. 1912(d); 



        (2)   whether   the   parent   or   guardian   has     made   substantial 

        progress   to   remedy   the   parent's   or   guardian's   conduct   or 

        conditions in the home that made the child a child in need of 

        aid; 



        (3) if the permanency plan is for the child to remain in out-of- 

        home      care,   whether     the   child's    out-of-home      placement 

        continues to be appropriate and in the best interests of the 

        child; and 



        (4) whether the Department has made reasonable efforts to 

        finalize the permanency plan that is in effect (whether the 

                                                                                    (continued...) 



                                            -33-                                               6671
 


----------------------- Page 34-----------------------

                                                          3 

insure that children do not drift in foster care  and thus the August 2009 permanency 



hearing was extremely important to the direction that the children's case would take. 



                 At   the   hearing   OCS   set   out   both   the   case   against   Paula   and   the   case 



favoring placement with the Dubovs.                 Several critical points were established at this 



hearing:     First,   OCS   reported   that   it   had   received   a   report   of   harm   concerning   the 



children "occur[ing] right before [they were] removed from [their] grandmother."  Next, 



it was stated that the parents had relinquished their parental rights and that the permanent 



goal was adoption for the children.           OCS then reported that "the [Dubovs] are doing a 



fine job with the kids."  Finally, it was indicated that "grandmother is okay with the plan 



now." 



         2	      (...continued) 



                 plan is reunification, adoption, legal guardianship, placement 

                 with    a  fit  and   willing    relative,  or   placement     in   another 

                 planned permanent living arrangement). 



                 . . . . 



                 (i)  Subsequent   Review.   The   court   shall   hold   a   hearing   to 

                 review the permanency plan at least annually until successful 

                 implementation of the plan. 



        3        Permanency hearings are crucial complements of the court's oversight of 



children   in   OCS   custody.      "A   permanency   hearing   must   be   held:   (1)   within   twelve 

months after the date the child entered foster care as calculated under AS 47.10.088(f); 

(2)   within   thirty   days   after   the   court   determines   pursuant   to   CINA   Rule   17.1   that 

reasonable efforts are not required; or (3) upon application by a party, when good cause 

is shown."     N.A. v. State , 19 P.3d 597, 602 (Alaska 2001) (internal citations omitted). 

The court must hold review hearings at least annually.                  AS 47.10.080(l)(5).       Under the 

CINA rules permanency hearings require several important judicial findings that are 

crucial   to   the   overall   direction   and   development   of   the   child's   care.      Permanency 

hearings are held where there are significant changes in the direction of the child's case. 

For instance, where OCS seeks to discontinue making reasonable efforts to provide 

family support services, a permanency hearing should be held. Audrey H. v. State, Office 

of Children's Servs., 188 P.3d 668, 675-76 (Alaska 2008). 



                                                    -34-	                                               6671
 


----------------------- Page 35-----------------------

                Had Paula been present at this hearing, she doubtless would have contested 



every one of these assertions.  As to the "removal" of the children, she testified - in 



November 2010 when she was finally given her right to be heard - that the children 



were not removed from her in the summer of 2009 but rather she requested temporary 



respite care while she traveled to Montana to care for her mother.               As to the report of 



harm,    she   would    have   been   able  to  present   her  response    to  it. As    to  Maddie's 



relinquishment, she would have notified the court that Maddie had relinquished with the 



expectation that the children would be going to Paula, as was evident from Maddie's 



attempt to withdraw her relinquishment only 14 days after signing the papers and Paula's 



testimony.    As to the permanent goal of adoption, the suggestion that the Dubovs were 



doing fine, and that Paula was "okay with the plan," Paula would have been on notice 



that OCS was firmly moving away from her as the adoptive placement and toward the 



Dubovs and she would have had the chance to voice her objection to that development. 



                Today's opinion concludes that Paula's absence at this hearing did not 



prejudice her because the placement decision would not have changed at this hearing 



given the concerns raised about Paula's parenting resulting in the loss of her foster care 



license.   But   this   rationale   actually   serves   to   underscore   the   prejudice   she   suffered: 



Charges were raised about her parenting that she knew nothing about for over a year. 



Paula of course knew about her licensure problem, but believed that she was working 



with OCS to correct that problem.         Then, when Paula was finally given notice and told 



of her right to appeal OCS decisions, the standing master relied heavily on her absence 



at the earlier hearing and her failure to seek placement for over a year: 



                                                 -35-                                            6671
 


----------------------- Page 36-----------------------

                Only when . . . placement [with a relative in Montana] was 

                determined not to be in the best interest of the kids . . . only 

                then, 14, 15, 16 months after you were told by Lori Wikle 

                and Valerie Nelson in person [that the children would not be 

                returned] when you got back from Montana, only then did 

                you contact Lori and ask to have placement back with you. 



                But Paula presented evidence that suggests she tried to have the children 



placed with her when she returned from Montana.                She thought she was working with 



OCS to overcome the problems with her foster care license: 



                Q. Did you reapply for your foster care license . . . ?
 

                A. . . . I figured I had to work with OCS and find out what
 

                was   going   on   and   what   the   process   was   to   even   get   the
 

                children back. 
 

                . . . .
 

                Q. . . . [You] didn't ask for placement of the children at that
 

                time because you were trying to work with everybody and be
 

                cooperative?
 

                A.  Well, yeah. Wouldn't that be the first step in trying to 

                regain something? 



Thus, at the very time the court was being told that the "grandmother is okay with the 



plan," Paula was trying to regain custody of the children and was unaware of OCS's plan 



to place them with the Dubovs.           Not only was she unable to voice this to the court, she 



thought she was on the path towards reunification. Given Paula's continued desire to 



have   the   children   with   her   and   OCS's   continued   involvement   with   Paula,   such   as 



encouraging supervised visits and stopping by her house to discuss the children, it is 



highly problematic to conclude that Paula's absence from this hearing did not prejudice 



her. 



                The court's conclusion is problematic for another reason.  The court  notes 



that very little changed at the August 2009 permanency hearing because the permanency 



plan remained adoption.  But this ignores the reality that the prior permanency plan was 



                                                  -36-                                             6671
 


----------------------- Page 37-----------------------

approved   in   the   context   of Paula acting as the foster parent, that is, as the putative 



adoptive parent.     At the August 2009 hearing the court found that placement with the 



Dubovs was in the best interests of the children.  The court had thus moved away from 



adoption by Paula and toward adoption by the Dubovs.                 Paula was prejudiced by her 

absence.4 



                The July 2010 Permanency Hearing 



                The July 2010 permanency hearing was a second opportunity for Paula to 



indicate to the court that she was interested in caring for the children and to learn the 



steps necessary for her to do so.         That it was an important opportunity lost is evident 



from the standing master's later reliance on Paula's inaction in ruling against her.  As 



noted above, the standing master stated that Paula waited too long to seek placement of 



the children with her.  In addition, at this hearing the court indicated that the local tribe 



supported   placement   with   the   Dubovs,   certainly   a   significant   factor   influencing   the 



ultimate decision.     Accordingly, Paula's absence from this hearing weakened her case 



and prejudiced her. 



                Her   absence   was   critical   in   another   way.  At   this   hearing,   additional 



negative information concerning Paula was brought to the attention of the court.                   Not 



being present, Paula was unaware of the allegations and unable to defend herself. 



        4        Six months later, at a time when OCS still had not provided Paula proper 



notice of her rights as a grandparent, it sought to further prevent her from contacting the 

children.  After terminating Paula's daycare services and requiring supervised visits, in 

February 2010 OCS filed and received a temporary protective order preventing Paula 

from going to the children's school and requiring her to stay 500 feet away from the 

children.    OCS   also   implemented   a   no-contact   order   for   Paula   and   the   children's 

biological mother.  Although OCS ultimately did not pursue the protective order, this is 

another example where Paula was unaware of any rights she may have had to contest 

OCS decisions.       Paula's case for placement of the   children was undermined by her 

absence from the earlier hearing. 



                                                 -37-                                            6671
 


----------------------- Page 38-----------------------

                 The September 2010 Placement Hearing 



                 The   placement   hearing   of   September   2010   was   held   to   review   OCS's 



decision to deny placement of the children with a maternal aunt under AS 47.14.100(m). 



Although the focus of the hearing was on that decision, substantial evidence that Paula 



was   an   unsuitable   placement   was   also   developed   at   this   hearing.      Today's   opinion 



concludes   that   Paula   did   not   suffer   any   prejudice   from   her   absence   at   this   hearing 



because she was able to present evidence at her own placement hearing later.  Although 



Paula was given the opportunity to try to meet the evidence presented at the September 



2010 hearing months later in her own placement hearing, it does not follow that Paula 



suffered no prejudice from her earlier absence. 



                 First, it is questionable whether any of the evidence against Paula would 



have   even   surfaced   at   the   September   2010   hearing   had   Paula   been   present.      It   was 



irrelevant to the nominal purpose of the hearing: consideration of the maternal aunt's 



placement request.       (Indeed, that request had been withdrawn before the hearing even 



commenced.)  Second, Paula was unable immediately to rebut the significant amount of 



testimony regarding her failure to properly care for the children.  Accordingly, the case 



against Paula that had been building for over a year without her knowledge was locked 



in for another two months before she had the opportunity to respond.  Third, the chance 



to present contrary testimony months later is a poor substitute for notice and the right to 



be heard at the principal hearing.         The burdens of locating the testimony in the record, 



listening   to   it,   understanding   it   in   the   context   in   which   it   was   presented   live,   and 



responding   to   it   would   pose   substantial   logistical   problems   for   any   litigant.    These 



problems are magnified by the reality in rural Alaska that hearings are often held with 



                                                    -38-                                              6671
 


----------------------- Page 39-----------------------

witnesses, attorneys, parties, and judges in different locations.5          In sum, Paula's presence 



would have markedly altered her ability to present her case. 



                Conclusion 



                I cannot conclude that Paula was not prejudiced by being kept in the dark 



for over a year about the direction that the case was taking - away from placement with 



her because of damaging allegations about her and toward placement with the Dubovs 



- while the impression that Paula did not care about the children's placement grew and 



                                                                                             6 

the children bonded with their new foster family.  In State v. Jacob (Jacob II),  we stated 



that    the  "placement      of  children    and    the  involvement      of   grandparents     in   their 

grandchildren's lives are not matters to be taken lightly."7            We have also noted that 



                notice of proceedings and a meaningful right to be heard are 

                essential to due process, and . . . there are situations in which 

                the right to intervene in the late stages of a CINA case will be 

                insufficient to cure the prejudice of the initial due process 

                violation.   Timely notice and an opportunity to be heard are 

                especially important in situations involving the placement of 

                children.[8] 



Jacob  involved the right of grandparents to be notified of proceedings involving their 



grandchildren.     Paula's involvement was not only as a grandparent but also as a foster 



        5       In this case, for example, Paula was in one location; her attorney was in 



another location; the OCS social worker, the assistant AG, the guardian ad litem, and 

counsel for the guardian, were in another location; a witness was in another location; the 

representative of the Northern Cheyenne Tribe was in another location; and the court was 

in Glennallen. 



        6       214 P.3d 353 (Alaska 2009). 



        7       Id. at 362. 



        8       Jacob v. State, Dep't of Health & Soc. Servs ., Office of Children's Servs., 



(Jacob I) 177 P.3d 1181, 1185 (Alaska 2008). 



                                                  -39-                                             6671
 


----------------------- Page 40-----------------------

parent.   She should have been given a fair opportunity to defend her performance as a 



foster   mother   and   to   know   the   State's   changing   plans   regarding   placement   of   her 

grandchildren - away from adoption by her and toward adoption by the Dubovs.9 



                We have been troubled many times in recent years by the State's failure to 



meet its statutory requirements concerning handling of children's cases.               For example, 

in the areas of giving notice to grandparents,10 making active efforts to reunify the Indian 



family,11 and giving notice of the planned evidentiary showing ultimately to be used to 



terminate     parental    rights,12  we   have    expressed     our   concerns    about    the  State's 



performance.     Ultimately, however, we have upheld the State's action, concluding that 



overall the State's efforts were good enough or that despite the failure to comply with the 



statute there was no prejudice to the losing party.          I cannot join in this approach in the 



        9       And recently we held that an Indian grandmother's due process rights were 



violated (or that she suffered prejudicial unfairness) when she had no notice for two 

years of an issue raised by the State for the first time in final argument at trial.  Amber B. 

v. State of Alaska, Dep't of Health & Soc. Servs., Office of Children's Servs., Arlene B. 

v. State of Alaska, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. 

& J. No. 1418, 2012 WL ___ (Alaska, April, 16, 2012). 



        10      Jacob I , 177 P.3d at 1186. 



        11      Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 



212 P.3d 756, 766 (Alaska 2009) (failure to meet active efforts duty while father was in 

jail but overall efforts sufficient); Marina B. v. State, Office of Children's Servs. , Mem. 

Op. & J. No. 1327, 2009 WL 225711 *8 (Alaska, Jan. 28, 2009) ("[W]e cannot condone 

the low level of OCS's efforts after this point."); T.F. v. State, Dep't of Health & Soc. 

Servs., 26 P.3d 1089, 1093 (Alaska 2001) ("We in no way condone DFYS's contribution 

to the delay in paternity testing."); see also A.A. v. State, Dep't of Family & Youth Servs., 

982 P.2d 256, 262 (Alaska 1999) (noting court "did not condone the State's failure to 

work out a case plan); A.M. v. State , 945 P.2d 296, 30 (Alaska 1997) (noting court 

"troubled by" passivity of State's remedial efforts). 



        12      D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 210 (Alaska 



2000) ("We do not condone the timing of the state's request."). 



                                                 -40-                                            6671
 


----------------------- Page 41-----------------------

case before us.13     I believe that Paula was prejudiced by the State's failure to notify her 



of   three   consecutive     hearings    over   the  space    of  fifteen  months     during   which    the 



placement of her grandchildren was effectively being decided; certainly the State has not 



demonstrated the lack of prejudice. 



                 Given     the  factual   and   legal   context   of  this  case,   including    concerns 

regarding evidence available in the record but not properly admitted14 and the role of Mr. 



Dubov in convincing OCS to look for a placement other than Paula,15 I conclude that the 



         13      Today's opinion mistakenly assumes that the dissent adopts a "last-straw 



jurisprudence" out of frustration with OCS's previous failures, and somehow ties the 

results in those cases to this case.       That is not correct.     The string of troubling cases in 

the past is cited to emphasize the difference between those cases and this case: In those 

cases OCS's violations were not determinative of the outcome, while here they are. This 

is evident from the language used to express this concept: "I cannot join in this approach 

in the case before us." 



                 The court also notes that Paula has not challenged the master's findings 

made after the hearing at which she was finally given notice and allowed to be heard. 

But she is entitled to a reversal on the basis of the claim she has brought. 



         14      A review of the record reveals several documents that supported Paula's 



positions on various issues, including several OCS emails that confirmed her factual 

assertions and the home study.           But for reasons that are unclear these exhibits were not 

admitted   into   evidence   in   the   course   of   the   hearing.   Accordingly,   under   the   rule   of 

Moffitt v. Moffitt , I give no weight to those exhibits.             749 P.2d 343, 347 n.4 (Alaska 

 1988).     Nonetheless, it is deeply troubling that while Paula was already sharply behind 

the curve in presenting evidence to the court, her trial attorney did not take steps to offer 

exhibits   that   supported   her   case.    Paula's   attorney   may   have   failed   to   offer   these 

documents because she was unable to fully grasp the weight of the adverse testimony 

presented at the September hearing, at which Paula and her attorney were not present 

because Paula was given no notice of the hearing. 



         15      Dubov was the tribal administrator who wrote letters critical of Paula's 



parenting and who eventually obtained custody of Paula's grandchildren.                     His position 

of power may have further exacerbated the prejudice she suffered, because he had access 

                                                                                           (continued...) 



                                                   -41-                                              6671
 


----------------------- Page 42-----------------------

State has not shown that OCS's failure to provide Paula notice of several important 



hearings did not prejudice her.         For these reasons, I respectfully dissent from today's 

opinion.  I would hold that Paula's due process rights were violated.16 



        15      (...continued) 



to both the court and OCS and it appears he played a critical role in the decision to 

remove the children and to suspend Paula's daycare services. 



        16      I   would   remand   this   case   to   the   superior   court   for   further   proceedings 



consistent with the holding that Paula's due process rights were violated.                  This might 

include her right to re-open the children's adoption case. (That case is not before us, but 

both parties have indicated that the adoptions have gone forward.) 



                Case law from this court and the United States Supreme Court point to such 

a remedy.      Where a lack of notice led to a denial of due process to grandparents, we 

have held that a tribal court adoption should be overturned three years after it had been 

approved and new birth certificates issued by the State.              Starr v. George, 175 P.3d 50 

(Alaska   2008).     The   United   States   Supreme   Court   has   taken   a   similar   approach:   In 

Mississippi Band of Choctaw Indians v. Holyfield , the Court noted that serious violations 

may warrant changes in placement, even though such changes can cause "considerable 

pain" and "potential anguish."         490 U.S. 30, 53-54 (1989). 



                I would afford Paula a full best interests hearing were she to challenge the 

adoptions.  At that hearing, in order to place her and the children in as close as possible 

to the positions they would have occupied had Paula been given notice, I would preclude 

consideration of evidence of the children's bonding with the Dubovs in the period since 

Paula was deprived of her rights. 



                Whether   the   outcome   of   such      a   hearing   would   be   different   from   the 

outcome of the earlier hearings at which Paula was not present cannot be known at this 

time.   But it is clear that the earlier hearings involved substantial evidence concerning 

bonding between the children and the Dubovs. 



                                                   -42-                                               6671 

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