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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
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
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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.
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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.
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----------------------- 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.
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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...)
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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.
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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
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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
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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.
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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,
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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)).
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----------------------- 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.
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----------------------- 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.
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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.
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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).
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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.
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----------------------- 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).
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----------------------- 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.
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----------------------- 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:
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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
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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.
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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
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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).
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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.").
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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...)
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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.
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