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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  

                                                                               

        corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



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,  

                 Judge.  



                 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.  



I.      INTRODUCTION  



                 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  


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

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  



                            1 

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  



                                2 

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  


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

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



made regarding the notice provisions of ICWA was harmless.  



II.        FACTS AND PROCEEDINGS  



                      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  



                                                                                                                   4  

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  

                                                                                                                 



                                                                         5  

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  

                                                                                                                        (continued...)  



                                                                     -3-                                                              6877
  


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

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  



          5(...continued)  



PLACE , http://www.rcpcfairbanks.org/stevies_place.php (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
  


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

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.  



          8  

                                 

                    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  


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

                   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  



                                                                                                9  

                                                                                                     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  


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

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



ruling.  



                    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  

removed.                                                                     



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

                                



                                                                                                            11  

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  



                                                                                12  

                                                                                                                   

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
  


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

III.	       STANDARD OF REVIEW  



                                                                                                             

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



                           15  

                                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,  

                                                                                                                                  



                                                                                                                                     18  

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)).  



            17  

                                                                                                                        

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

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



            18  

                                                                      

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



            19  

                                                                                                           

                       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  

ICWA.20  



          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  

                                                                                

                                                                                                          (continued...)  



                                                            -11-                                                          6877  


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

                                                                                                                  

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



                                                                                                                           21  

                                                                                    

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  



          20(...continued)  



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  

                                                                                               

Court:  



                                        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-----------------------

                               23  

                                                             

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  



                                                      24  

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]  



                                  25  

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

intent to the contrary."                                                           



                                                                                            26  

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  



erroneous.  



         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.  



V.       CONCLUSION  



                                                          

                   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  



                1  

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  



                                  2 

                                                                                         

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).  



                                                           -15-                                                        6877  


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

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).  



                                                                  -16-                                                                 6877  

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