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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Molly O. v. State, Dept. of Health & Social Services, Office of Children's Services (3/14/2014) sp-6877

Molly O. v. State, Dept. of Health & Social Services, Office of Children's Services (3/14/2014) sp-6877

        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  



MOLLY O.,                                         )  

                                                  )        Supreme Court No. S-15076  

                 Appellant,                       )  

                                                  )        Superior Court Nos.  

        v.                                        )        4FA-11-00003/00004/00005 CN  


STATE OF ALASKA,                                  )        O P I N I O N  

DEPARTMENT OF HEALTH &                            )

SOCIAL SERVICES, OFFICE OF                        )        No. 6877 - March 14, 2014

CHILDREN'S SERVICES,                              )


                 Appellee.                        )

_______________________________ )

                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  


                 Appearances:  James H. Cannon, Law Office of James H.  

                 Cannon, Fairbanks, for Appellant.  Jacqueline G. Schafer,  

                 Assistant  Attorney  General,  Anchorage,  and  Michael  C.  


                 Geraghty, Attorney General, Juneau, for Appellee.  

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


                 Bolger, Justices.  

                 STOWERS, Justice.  


                 In January 2011 the Department of Health and Social Services, Office of  

Children's Services (OCS) took emergency custody of three children.  The children had  

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been in the care of their maternal grandparents beginning in October 2010, but before  


their removal had returned to their parents.  OCS, under the impression that the children  


were being cared for by the parents at the time of removal, placed the children with the  

maternal grandparents.  

                    On August 13, 2012, the day the trial to terminate the mother's parental  


rights was to begin,  the mother moved to have the grandmother joined in the proceeding 

as  the  children's  Indian  custodian.                     The  trial  court  appointed  counsel  for  the  

grandmother, who moved to intervene.  After holding an evidentiary hearing, the trial  

court found that the children had been removed from the grandparents' custody and that  


the grandmother had thus been their Indian custodian at the time of removal.  However,  

the court denied both the mother's motion to join the grandmother and the grandmother's  


motion  to  intervene,  finding  that  shortly  after  the  removal  the  parents  revoked  the  


grandmother's Indian custodian status by asking OCS not to place the children with her.  

                    The  grandmother  moved  for  reconsideration  and  argued  that  her  due  

process rights were violated at the time of the removal.  She argued that OCS did not  


provide her with notice of the right she was entitled to as the children's Indian custodian,  


including  notice  of  her  right  to  intervene  in  the  proceeding  and  of  her  right  to  be  


represented by counsel. The trial court rejected this argument, finding that although OCS  


breached its duty to provide the grandmother with notice required by the Indian Child  


Welfare Act (ICWA),  because of the short time between the children's removal and the 


parents' revocation of the grandmother's status as the children's Indian custodian the  


grandmother had suffered no significant detriment to her rights.  

          1         The children's father relinquished his parental rights.  

          2         25 U.S.C.  1901-1963 (2006).  

                                                             -2-                                                           6877  

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                      We affirm the trial court's decision and hold that any error OCS may have       

made regarding the notice provisions of ICWA was harmless.  


                      Jessica and Aaron R. have three children, Ashley, Mark, and Lori, who are     

Indian children for purposes of ICWA.                         3  For much of the children's lives the family lived  

with Jessica's parents, Molly and Chuck, in Molly and Chuck's  home.  In spring 2010  


Jessica, Aaron, and the children moved out of that home.  It appears that Jessica and  


Aaron separated and Jessica moved in with a boyfriend, Doug, while the children stayed  


with Aaron in a home with several other adults.  Uncomfortable with this situation,  

Jessica asked her parents to take care of the children until she and Aaron could get on  


their feet financially.  In late October 2010 the children returned to Molly and Chuck's  


home.  In early January 2011 the children spent several days in a home that Aaron was  


sharing with Jessica and Doug.  Whether the stay was intended to be a permanent return  


to their parents or a mere visit is the subject of conflicting evidence, the bulk of which  

supports   the   trial   court's   finding   that   the   stay   was   intended   as   a   visit.                                        On  


January 10, 2011, the children returned to Molly and Chuck's home.   That day Lori  

complained to Molly about discomfort in her genital region.  Molly took her to the  

emergency room and, on the advice of hospital personnel, the next day took all three  



children to be interviewed at Stevie's Place.   While Lori's complaints initially raised  


           3          We use pseudonyms to protect the privacy of the family.  

           4          Again, the evidence differs as to whether their return was intended as a visit                              

or as a continuation of an indefinite placement with the grandparents.  

           5          Stevie's Place is a facility-based program that provides forensic interviews  


and medical exams in a child-friendly setting when there is reason to believe a child has  

been  sexually  abused.    RESOURCE  CENTER  FOR  PARENTS  AND  CHILDREN :     STEVIE 'S  


                                                                     -3-                                                              6877

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concerns about sexual abuse, she ultimately turned out to have been suffering from a  


yeast infection.  


                   OCS quickly became involved.  Believing the children to have been living  

with their parents, on January 11, 2011, OCS devised a protective action plan under  

which the children were placed with Molly and Chuck, who agreed to not allow Jessica  


to remove the children from their home or allow her to have unsupervised contact with  


them.   The next day OCS filed an emergency petition to adjudicate the children  as  


children in need of aid and it took them into emergency custody, while maintaining their  

placement with Molly and Chuck.  The emergency adjudication petition alleged that the  

children had been living in their parents' home at the time of removal.  

                   On January 14, 2011, OCS held a team decision-making meeting (TDM).6  

The purpose of the meeting was to determine the children's placement and to explore  


issues involving the children's hygiene, safety, and medical needs.  The meeting was  


attended in person by, among other participants, Jessica, Aaron, Molly, and Chuck, and  

telephonically by Aaron's half-brother, Joseph Frederick, and Joseph's wife, Carol.7  At  


PLACE , (last visited Feb. 10, 2014).  

          6        According to OCS social worker Natosha Malone a TDM provides "an  

arena where we can invite the family along with any supports to openly discuss the  


concerns that [OCS] has and to develop a plan for placement. . . .  We document the  

strengths, the concerns, the ideas, and then hopefully bring the group to consensus by the  


end of the meeting."  If the team is unable to reach consensus on placement, OCS's  

recommendation is implemented, but the participants are informed that they may contest  


the decision in court.  

          7        The  children  would  eventually  be  placed  with  the  Fredericks  in  North  


Carolina in October 2011, where they remain.  

                                                            -4-                                                      6877

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the meeting the team agreed that the children would remain placed in unlicensed relative  


care with Molly and Chuck.  

                    Later that day the trial court held an emergency probable cause hearing.  


At the hearing, which was attended by Jessica and Aaron, but not Molly or Chuck,  


Aaron's attorney stated that Aaron was concerned about drinking occurring in Molly and  


Chuck's home.  OCS informed the trial court that placement with Molly and Chuck had  


been decided at a TDM, and that another TDM, to review the placement while avoiding  

the need for a judicial hearing, had been scheduled for the following week.  At the  

termination trial Malone testified that the second TDM was scheduled because Jessica  

and Aaron disagreed with OCS's decision to place the children with Molly and Chuck.  


                    The second TDM was attended in person by Jessica and Aaron and their  

attorneys, and telephonically by the Fredericks.  Molly and Chuck did not attend.  Jessica  


and Aaron each expressed concerns about the children's placement with  Molly and  

Chuck.  Their concerns included suspicions about Chuck having been a perpetrator of  

sex abuse, safety issues involving power tools in the home, drinking in the home, and  


Jessica having blocked details of her childhood from her memory, suggesting that Jessica  


had suffered abuse by her parents.  At a later hearing Malone testified about the second  


TDM.  She stated that at the meeting she had not heard Jessica specifically ask OCS to  


remove the children from Molly and Chuck, but that Jessica "wanted them moved."  


Malone stated that "[u]nder no circumstances was I under any impression that [Jessica]  

wanted her kids to remain with [Molly and Chuck]."8  Despite the concerns, the children  

remained placed with Molly and Chuck.  



                    Malone  testified  that  she  felt  that  Jessica  appeared  more  comfortable  

speaking openly outside her parents' presence.  Malone testified that Jessica told the  

group that her childhood "must have been really bad if I've blocked it out," and that  


Malone found Jessica's statements to be "bone chilling."  

                                                             -5-                                                           6877  

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                   According to social worker Justin Heminger, who took over the case in  


spring 2011, another TDM was held in June 2011, shortly after he visited Molly and  

Chuck's  home.    The  purpose  of  the  TDM  was  to  consider  whether  to  change  the  


children's  placement.    Heminger  was  concerned  about  the  condition  of  the  home,  

including  strong  odors  of  cigarette  smoke  and  cat  urine,  power  tools,  heavy  boxes  


stacked against the walls, clutter, overloaded dishes and ash trays, and auto parts in the  

yard.  The team decided to continue the placement for two weeks to allow Molly and  


Chuck to alleviate the concerns.  Following the TDM Molly and Chuck remedied most,  

but not all, of OCS's concerns about the home's conditions.  

                   But  OCS  continued  to  have  concerns  about  the  placement,  which  the  


children's guardian ad litem (GAL) had opposed since the beginning.   According to  

Heminger,  OCS's  ongoing  concerns  included  cleanliness,  discipline  issues,  Lori's  

continuing yeast infection, discontinuance of Lori's counseling, drinking, and neglect.  

Another TDM was held in August 2011, at which the team decided to place the children  


                                                                                                     But  because  that  

with  their  paternal  relatives,  the  Fredericks,  in  North  Carolina. 


placement  could  not  occur  immediately,  and  the  team  determined  that  the  children  

required immediate removal from Molly and Chuck's care, the children were temporarily  

placed in a local foster home before moving to the Frederick home in October 2011.  


                   Molly  and  Chuck  requested  a  review  hearing  to  contest  the  change  of  


placement.    OCS,  the  GAL,  and  Aaron  opposed  the  request  while  Jessica  took  no  


position.  On September 1, 2011, the trial court held a proceeding to consider the request.  

On September 8, 2011, the trial court announced its decision that because Molly and  


Chuck were not parties to the child in need of aid (CINA) proceeding they were without  

          9        Attending  this  meeting  were  Jessica,  Aaron,  Chuck,  representatives  of  


Eagle and Tanana Chiefs Conference, and the GAL.  Molly did not attend.  According  

to Malone all of the participants supported the change in placement.  

                                                             -6-                                                         6877  

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standing to challenge OCS's placement decision.   Molly and Chuck did not appeal the     


                    A  trial  on  OCS's  petition  to  terminate  Jessica's  parental  rights  was  

scheduled to begin on August 13, 2012.  That morning, Jessica's attorney filed a motion  


asking the trial court to allow Molly to join the case as a party, claiming that she was the  


children's  Indian  custodian  from  whose  care  and  custody  the  children  had  been  

              10  The attorney averred that the trial court could not terminate Jessica's parental  


rights because OCS was not prepared to prove that entrusting the children to Molly's  



custody would result in serious emotional or physical damage to them.                                           This was the  

first indication OCS had received from the parents or grandparents that Molly had been  

the children's Indian custodian at the time of removal.  OCS's attorney stated on the  


record that OCS had been operating all along under the belief that the children had been  


living with, and in the custody of, their parents, not their grandparents, at the time of  


their removal.  

                    The  trial  court  appointed  counsel  to  represent  Molly  and  scheduled  an  


evidentiary hearing on the Indian custodian issue.  The hearing was held on October 5  

and 8, 2012.  Molly, Chuck, Jessica, and Doug testified, as did social workers Malone  

and Heminger.  The Native Village of Eagle participated.  The bulk of the evidence  


presented, including testimony by Molly, Chuck, Jessica, and Doug, indicated that the  

children had been temporarily visiting their parents in early January 2011 rather than  

having been returned to them permanently.  


                    Following the hearing the trial court denied Molly's request to intervene  

and Jessica's request to join Molly as a party.  The court found that the children had been  

          10        See 25 U.S.C.  1912(a).  

          11        See 25 U.S.C.  1912(f).  

                                                               -7-                                                             6877  

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


living with Molly and Chuck on January 12, 2011, when they were taken into OCS's  


custody.  It concluded, based on this fact and on Jessica's temporary grant of physical  

care, custody, and control of the children to the grandparents, that Molly had been the  



children's Indian custodian at the time of their removal.                           The court noted that there was  

conflicting evidence as to whether Jessica intended Molly's custodianship of the children  


to  continue  after  the  children  were  removed  by  OCS.    It  acknowledged  Jessica's  


testimony that she did not tell OCS that she objected to the children's placement with her  


parents, that she never asked OCS to remove the children from her parents, and that she  


wanted the children to remain with her parents.  But it found that Jessica's "testimony  


was somewhat inconsistent and hindered by lack of memory."  It found more credible  


Malone's  and  Heminger's  testimony  that  Jessica  had  repeatedly  objected  to  the  


children's placement with her parents and had asked that the placement be changed.  It  

found that Jessica "object[ed] to the placement with her parents commencing at least by  


January  18,  2011."    The  trial  court  concluded  that  Jessica's  "desire  to  remove  the  

children from [Molly and Chuck] act[ed] to terminate the Indian custodianship no later  

than the date the children were removed with Jessica's concurrence."13  

                    Molly  moved  for  reconsideration,  arguing  in  part  that  the  trial  court's  

decision was erroneous because, having found her to have been the children's Indian  


custodian at the time of removal, "the court failed to address or recognize that the state  

had utterly failed to comply with the mandatory requirements for written notice imposed  

          12        25  U.S.C.    1903   (6)  defines  "Indian  custodian"  to  mean  "any  Indian  

person who has legal custody of an Indian child under tribal law or custom or under State        

law or to whom temporary physical care, custody, and control has been transferred by  

the parent of such child."  

          13        The trial court was referring to the children's removal from Molly and  

Chuck's home on August 18, 2011.  

                                                             -8-                                                        6877

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


by CINA Rule 7(f) and 25 CFR 23.11(a)," and had thus deprived Molly of her statutory  


right to counsel, her right to intervene in her grandchildren's CINA proceeding, and her  

right to due process.14  


                    The trial court denied Molly's motion.  In doing so the court clarified its  


findings to specify that Molly's Indian custodianship ended on January 18, 2011, when  

Jessica and Aaron notified OCS that they disagreed with the decision to place their  


children with Molly and Chuck.  The court found that OCS breached its duty to provide  


notice to Molly of her right to intervene in the proceeding and to be represented by  

counsel, as required by ICWA, but it found that, because Molly's status as an Indian  


custodian was extinguished six days after OCS took custody, OCS's actions had not  

deprived Molly of any important rights and the breach had thus been harmless.  

                    Molly appeals, arguing that OCS's failure to provide her with notice due  

to an Indian custodian at the time the children were removed from her custody deprived  


her  of  her  right  to  due  process,  and  that  the  parents'  revocation  of  Molly's  Indian  


custodianship was ineffective until Molly received notice of the revocation.  Molly asks  


us to reverse the trial court's denial of her request to intervene in the proceeding, to order  


the children restored to her physical care and custody, and to vacate all orders issued by  

the trial court since OCS's assumption of the children into its custody in January 2011.  

          14        Molly argued that OCS erred by not providing her with notice of her rights  

as an Indian custodian under 25 C.F.R.  23.11(a) and Alaska Child in Need of Aid Rule  


7(f).  Under the regulation and rule when OCS petitions to adjudicate an Indian child as  


a child in need of aid it must notify the child's parents, Indian custodians, and tribe of  


their rights under ICWA.  Those rights include the right to intervene in the proceeding,  


the right to be represented by counsel, and the right to obtain a continuance to prepare  


for the proceeding.  Additionally, the notice must include a statement of potential legal  


consequences of the proceeding on the future custodial or parental rights of the parents  


or Indian custodians.  

                                                                -9-                                                         6877

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                       We review a trial court's factual findings for clear error and its conclusions  


                                A finding is clearly erroneous if, after reviewing the entire record in  

of law de novo.                                                                       

the light most favorable to  the party  prevailing  at trial, we are definitely and firmly  


convinced that the finding is mistaken.16  

IV.	        DISCUSSION  

            A.	        The Parents Ended Their Grant Of Temporary Custody To Molly,  

                       And Thus Molly's Indian Custodianship, In January 2011.  

                       A parent whose child is in OCS's custody may, with the concurrence of  


OCS, revoke an Indian custodianship that was in place when OCS took custody of the  


child.17  A  parent may not create or recreate an Indian custodianship for a child in OCS's  


custody by transferring temporary physical care, custody, and control of the child to an  


Indian person because OCS, not the child's parent, is the legal custodian of such a child,  



with sole authority to direct the child's physical care, custody, and control.                                                           OCS's  

placement of a child with an Indian person does not create an Indian custodianship.19  

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

291 P.3d 957, 961 (Alaska 2013) (citing                               Lucy J. v. State, Dep't of Health & Soc. Servs.,   

Office of Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010)).  

            16         Id. at 961-62 (quoting Brynna B. v. State, Dep't of Health & Soc. Servs.,  

Div. of Family & Youth Servs. , 88 P.3d 527, 529 (Alaska 2004)).  



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

204 P.3d 333, 339 (Alaska 2009).  



                       AS 47.10.084(a); see also In re J.J. , 454 N.W.2d 317, 327 (S.D. 1990).  



                       25  U.S.C.    1903  (6)  specifies  that  an  Indian  custodian  relationship  is  

created  when  "the  parent  of  such  child"  has  temporarily  transferred  physical  care,  

custody, and control of the child to an Indian person.  (Emphasis added).  

                                                                       -10-	                                                                 6877

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

                   At  the  time  of  the  termination  trial  Jessica  wanted  Molly  to  be  her  

children's Indian custodian.  But Jessica and Aaron's earlier action in informing OCS of  


their opposition to the children being placed in Molly's care acted to terminate Molly's  

Indian custodianship.  Despite her wishes at the time of the termination trial, Jessica was  

without authority to reinstate that relationship.  

                   The  trial  court  found  that  Jessica  and  Aaron  ended  Molly's  Indian  

custodianship on January 18, 2011, by stating at a TDM that they did not want the  


children placed with Molly and Chuck. On appeal, Molly argues that any such sentiment  


by the parents was ineffective to end Molly's Indian custodial relationship because the  


parents'  intention  was  not  communicated  to  Molly.    But  Molly  misses  a  key  point.  

Under  section  1912(a)  of  ICWA,  it  is  "the  party  seeking  the  foster  care  placement  


of . . . an Indian child" who "shall notify the parent or Indian custodian and the Indian  


child's tribe" of the pendency of the proceeding and of the parent's, Indian custodian's,  

or tribe's right of intervention.  Here, the party responsible for providing such notice was  

OCS.  By telling OCS on January 18, 2011, that they did not want their children placed  


with Molly, Jessica and Aaron effectively informed OCS that any grant of physical care,  

custody, and control they may have earlier given Molly over their children no longer  

existed.  Regardless of Molly's knowledge, or lack thereof, of this communication, OCS  


was  the  party  charged  with  notifying  the  children's  Indian  custodian,  if  any,  of  the  


pendency of the CINA proceeding. Jessica and Aaron's statements gave OCS actual  

knowledge that, as of January 18, 2011, Molly was not the children's Indian custodian.  


OCS thus had no duty, from that time forward, to provide  Molly with notice under  


          20       Molly argues that OCS breached not only a duty to provide her with notice  

of her rights as the children's Indian custodian, but also a preliminary duty to inquire into  



                                                            -11-                                                          6877  

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


                    Once an Indian custodian's status has been revoked, that person has no role  



in  ongoing  child  protection  proceedings.                     By  way  of  illustration,  in  In  re  G.L. ,                a 


grandmother informed the state social services agency and the trial court that she was a  

child's Indian custodian after the trial court had issued jurisdictional findings.22                                      The  

grandmother's disclosure of  her status triggered the agency's duty to provide her with  


her status as such.  OCS responds that the facts available at the time gave it no reason to  


suspect that an Indian custodianship may have existed in this case, and thus it had no  


duty to inquire into Molly's status.  We note the statement of the Michigan Supreme  



                                        While  it  is  impossible  to  articulate  a  

                              precise rule that will encompass every possible  


                              factual   situation,   in   light   of   the   interests  

                              protected by ICWA, the potentially high costs  

                              of erroneously concluding that notice need not  

                              be sent, and the relatively low burden of erring  


                              in favor of requiring notice . . . the standard for  


                              triggering         the      notice        requirement            of  

                              25  U.S.C.A.  1912(a)  must  be  a  cautionary  


                              one. . . .  

In  re  Morris ,  815  N.W.2d  62,  64-65  (Mich.  2012).    Here,  the  trial  court  correctly  

concluded that the short period of time between the children's removal and the parents'  

revocation of Molly's Indian custodian status rendered any error OCS may have made  


in  not  providing  Molly  with  notice  of  her  rights  under  ICWA  harmless.    The  same  

analysis compels a conclusion that any error OCS may have made by not inquiring into  


Molly's status was also harmless.  Thus, we need not and do not decide whether, given  

the facts available at the time, OCS had a duty to inquire into Molly's status, and, if so,  


whether it violated that duty.  

          21        99 Cal. Rptr. 3d 356 (Cal. App. 2009).  

          22        Id . at 360.  

                                                             -12-                                                        6877

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



notice under ICWA.                  The agency did not provide the required notice, but before any  

further substantive proceedings occurred in the case, the mother revoked her grant of  


custodianship  to  the  grandmother.                        The  mother  later  recanted  her  revocation  and  

expressed her desire to have the grandmother's Indian custodian status reinstated.  The  


appellate court held that once the grandmother's "Indian custodian status was revoked,  


the notice provisions of ICWA no longer applied to her, regardless of [the parent's]  


                                      The court held that while the agency erred in failing to provide  

intent to the contrary."                                                           


the  Indian  custodian  with  notice,  the  error  was  harmless.                                  The  court  concluded,  


"[G]iven the unusual procedural posture in which we address the issue of notice to an  


Indian custodian, even a conditional reversal and remand for further ICWA notice would  

                                                                                                                           27   We  


be futile, an empty formality and a waste of ever-more-scarce judicial resources." 

agree with the rationale of G.L.  

                    The  trial  court's  factual  finding  that  Jessica  objected  to  the  children's  

placement with Molly and Chuck on January 18, 2011, is supported by the record and  


thus not clearly erroneous.  The trial court's conclusion from this finding that Jessica's  

desire to remove the children from Molly and Chuck acted to terminate Molly's Indian  


custodianship is not erroneous.  And the court's determination that OCS's failure to  


provide notice of the rights of an Indian custodian to Molly was harmless given that  

          23        Id . at 365-66.  

          24        Id . at 362, 366.  

          25        Id . at 366.  

          26        Id . at 366-67.  

          27        Id . at 367 (quoting In re E.W. , 88 Cal. Rptr. 3d 338, 343 (Cal. App. 2009)).     

                                                               -13-                                                         6877

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

Molly's Indian custodianship was terminated six days after OCS took custody is also not  


         B.        Molly's Other Arguments Are Without Merit.  

                   Molly  argues  that  Jessica  created  an  Indian  custodianship  in  her  by  


executing powers of attorney for the children, and that because Jessica did not revoke the  


powers of attorney Molly's status as the children's custodian was never revoked.  She  


argues that because she was not informed that the powers of attorney had been revoked  


OCS was required to treat her as the children's custodian, even though Jessica directly  

told OCS that she opposed Molly's custodianship.  But, by informing OCS that she  


opposed Molly's exercise of custody over the children, Jessica revoked, at least as far as  


OCS's relationship with Molly was concerned, any indicia of custody that Molly had  


acquired through the powers of attorney.  By their terms, the powers of attorney were  

"revocable by [Jessica] at any time."  Molly's argument thus has no merit.  

                   Finally, Molly argues that because OCS violated its duty under section  

                     28 to provide her with notice of the CINA proceeding and of her right to  

1912 of ICWA 

intervene in it, section 191429 of ICWA mandates that all of the trial court's orders  


following the children's removal must be vacated, the case must be reset to its status at  


the time of the removal, and the children must be returned to Molly's physical custody.  


We reject this argument because of our holding that OCS's error in not providing notice  

to Molly was harmless.  



                   For the foregoing reasons  the trial court's denial of Molly's request to  

intervene in the children's CINA proceeding is AFFIRMED.  

         28        25 U.S.C.  1912 (2006).  

         29        25 U.S.C.  1914 (2006).  

                                                          -14-                                                       6877  

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

BOLGER, Justice, dissenting.  

                   The Indian Child Welfare Act creates important procedural rights for Indian  


custodians.   For example, in any state court involuntary proceeding involving an Indian  

child, "the party seeking the foster care placement of, or termination of parental rights  

to" that child must provide notice to the Indian custodian of the proceedings and of his  



or her right to intervene,  and an indigent Indian custodian has a statutory right to court- 

appointed counsel.3  

                   Here, the superior court ultimately concluded that Molly was an Indian  


custodian for ICWA purposes at the time OCS filed its initial petition.  In my view,  

Molly's Indian custodian status should have been apparent after minimal inquiry because  


(1) the children had been living with her for months, (2) Molly brought the children to  


the attention of OCS, and (3) OCS immediately returned the children to her care.  The  


superior court should have appointed counsel to represent Molly at the very first hearing  

and provided notice to all parties of Molly's status as an Indian custodian.  


                   However, this court's decision reasons that the superior court's failure to  

provide notice and counsel to Molly was harmless because Aaron and Jessica objected  


to Molly's custodianship at a meeting with OCS a few days later.  I respectfully disagree  

with this conclusion.  

                   If the court had properly recognized Molly's status and appointed counsel  


for her, then the course of the following proceedings may well have been much different.  

Aaron and Jessica may have realized the benefits of continuing Molly's status as an  


Indian custodian.  Molly may have chosen to participate in the team decision meetings  

          1        See 25 U.S.C.  1912 (2013).  

          2         1912(a).  

          3         1912(b).  

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where   the   parties   discussed   the   children's   placement.      And   with   competent  

representation, Molly would have recognized her statutory right to judicial review of  

OCS's later decision to remove the children from her care.4  


                      In a criminal case, interference with a defendant's right to counsel is often  


considered to be a structural error that requires reversal because the consequences of  

such an error "are necessarily unquantifiable and indeterminate."5  Similar considerations  


leave me skeptical about this court's conclusion that there was no harmful consequence  

from the failure to appoint counsel for Molly.  I respectfully dissent.  

           4         See AS 47.14.100(m); Irma E. v. State, Dep't of Health & Soc. Servs. , 312  

P.3d 850, 853-54 (Alaska 2013).  

           5          Cook v. State, 312 P.3d 1072, 1088 (Alaska 2013) (Maassen, J., dissenting)                      

(quoting  United  States  v.  Gonzalez-Lopez,  548   U.S.   140,  150  (2006));  see  also  

McKinnon v. State , 526 P.2d 18, 24 (Alaska 1974).  

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