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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alex H. v. State, Dept. of Health & Social Services, Office of Children's Services (2/10/2017) sp-7151

Alex H. v. State, Dept. of Health & Social Services, Office of Children's Services (2/10/2017) sp-7151

        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@akcourts.us.  



                 THE SUPREME COURT OF THE STATE OF ALASKA  



ALEX H.,                                            )  

                                                    )    Supreme Court No. S-16206  

                        Appellant,                  )  

                                                    )    Superior Court Nos. 4FA-13-00100/  

        v.                                          )    00101/00109 CN  

                                                    )  

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

OF HEALTH & SOCIAL SERVICES,                        )  

OFFICE OF CHILDREN'S SERVICES,                      )    No. 7151 - February 10, 2017  

                                                    )  

                        Appellee.                   )  

                                                    )  



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

                Judicial District, Fairbanks, Michael P. McConahy, Judge.  



                Appearances:  Rachel Cella, Assistant Public Defender, and  

                Quinlan Steiner, Public Defender, Anchorage, for Appellant.  

                Mary  Ann  Lundquist,  Senior  Assistant  Attorney  General,  

                Fairbanks, and James E. Cantor, Acting Attorney General,  

                Juneau, for Appellee.  



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

                Bolger, Justices.  [Carney, Justice, not participating.]  



                WINFREE, Justice.  



I.      INTRODUCTION  



                A prisoner challenges the superior court's denial of his request for  transport  



to  attend  in  person  his  parental  rights  termination  trial,  and,  therefore,  the  ultimate  



termination of his parental rights.  He argues that when denying his transport request the  


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

court:  (1) abused its discretion by concluding in its statutory analysis that transport was  



not required; (2) abused its discretion or erred by failing to consider all required factors  



for the statutory analysis; and (3) separately violated his due process rights by denying  



him in-person attendance at the parental rights termination trial.  Because the superior  



court considered all relevant factors the parties presented to it, because it is not obvious  



that considering additional factors would have changed the court's statutory analysis, and  



because  the  prisoner's  due  process  rights  were  not  violated,  we  affirm  the  superior  



court's transport decision and ultimate termination of the prisoner's parental rights.  



II.    FACTS AND PROCEEDINGS  



               Alex and Maeve H. were married and the biological parents of daughter  



Portia, son Roman, and daughter Audra, aged 18, 16, and 14, respectively, at the time of  

the parental rights termination trial.1  In early October 2013 the Office of Children's  



Services (OCS) received allegations that Portia and Audra were being sexually abused  



by Roman; OCS filed an emergency petition to adjudicate the two sisters as children in  



need of aid and obtain temporary custody.  



               In forensic interviews Portia and Audra reported that Alex frequently had  



genital, anal, and oral sex with them, and that this abuse started when they were as young  



as  four  years  old.    Both  sisters  reported  that  Roman  had  told  them  that  Alex  had  



penetrated him anally, as well.  The sisters both described an incident when Alex forced  



all three children to have oral and vaginal sex with him and each other.  Portia said she  



had told Maeve about the abuse multiple times, but Maeve had done nothing to intervene.  



OCS subsequently filed an emergency petition to adjudicate Roman as a child in need  



of aid and obtain temporary custody.  



        1      Pseudonyms are used to protect the family's privacy.  



                                               -2-                                          7151  


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

               Alex was arrested and indicted for 27 counts of first degree sexual abuse  



of a minor.  OCS petitioned in September 2014 to terminate Alex's and Maeve's parental  



rights.  The parties agreed to conduct the termination trial after Alex's criminal trial was  



completed.  The children's guardian ad litem preferred waiting for the criminal case to  



conclude before conducting the termination trial because the children might then be  



exposed to confrontation only once - the children's criminal case testimony could be  



admitted in the termination case so that they would not have to testify a second time.  



               Alex's criminal trial concluded on August 14, 2015, when  a jury found him  



guilty of 13 counts of first degree sexual abuse of a minor.  All three children testified  



at the criminal trial, as did both Maeve and Alex.  



               At a July pretrial conference - shortly before Alex's criminal trial - the  



parties scheduled the termination trial for early October.  On September 28, one week  



before  the  scheduled  termination  trial  and  only  one  day  prior  to  the  final  pretrial  



conference, Alex sought an order pursuant to AS 33.30.081(f) requiring the Alaska  



Department  of  Public  Safety  (DPS)  to  transport  him  from  the  Fairbanks  jail  to  the  

Fairbanks courthouse so he could attend the termination trial in person.2  Alex stated that  



although he did not intend to testify, his in-person attendance was necessary to avoid the  



inefficiencies of telephonic participation and facilitate his ability to confront witnesses  



       2       AS 33.30.081(f) provides that:  



               A court may order a prisoner who is a party or witness to a  

               civil action or a witness to a criminal action to appear at a  

               place other than within a correctional facility only if the court  

               determines,  after  providing  a  reasonable  opportunity  for  

               [DPS] to comment, that the prisoner's personal appearance is  

               essential to the just disposition of the action.  In making its  

               determination, the court shall consider available alternatives  

               to the prisoner's personal appearance including deposition  

               and telephone testimony.  



                                               -3-                                         7151
  


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

and assist counsel in his defense, "ensur[ing]  optimal protection of [his] trial rights."  The  



other parties to the termination trial did not oppose the request, but pursuant to the statute  



the  superior  court  provided  DPS  an  opportunity  to  respond.    DPS  filed  a  written  



opposition contending that Alex's in-person attendance at the termination trial would add  



little value because he did not intend to testify, but that DPS would face significant  



burdens  in  accommodating  the  request  because  it  had  little  time  to  make  necessary  



arrangements  and  already  had  other  significant  obligations  during  that  period.    On  



October 5, the first day of the trial, the court confirmed that no parties had anything to  



add to the DPS opposition and then denied the transport request, concurring with the  



analysis in DPS's opposition.  



                 In January 2016 the superior court terminated both Alex's and Maeve's  

parental rights to all three children.3  Alex appeals the termination order, arguing that the  



        3        Under relevant Alaska Child in Need  of Aid (CINA) statutes and rules,  



parental rights may be terminated at trial only if OCS shows:   



                 (1) by clear and convincing evidence that  



                         (A)  the  child  has  been  subjected  to  conduct  or  

                         conditions described in AS 47.10.011 and  



                                 (i) the parent has not remedied the conduct or  

                                 conditions in the home that place the child at  

                                  substantial risk of harm; or  



                                 (ii) the parent has failed, within a reasonable  

                                 time, to remedy the conduct or conditions in the  

                                 home that place the child in substantial risk so  

                                 that  returning  the  child  to  the  parent  would  

                                 place the child at substantial risk of physical or  

                                 mental injury; [and]  



                 . . . .  



                 (2) by clear and convincing evidence that  

                                                                                            (continued...)  



                                                     -4-                                              7151
  


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

court abused its discretion and erred by denying the statutory transport request and that  



his right to due process was violated when the court denied him the right to personally  

attend the termination trial.4  

                                     



III.    STANDARD OF REVIEW  



                 We   generally   review   decisions   regarding   prisoner   transport   under  

AS 33.30.081(f) for abuse of discretion.5  "We will find an abuse of discretion when the  



decision on review is manifestly unreasonable."6  Additionally, "[a]n abuse of discretion  



exists  where  the  superior  court  'considered  improper  factors  in  making  its  .  .  .  



        3        (...continued)  



                         (A) the Department has complied with the provisions  

                         of AS 47.10.086 concerning reasonable efforts; [and]  



                 . . . .  



                 (3) by a preponderance of the evidence that termination of  

                 parental rights is in the best interests of the child.  



CINA Rule 18(c); see also AS 47.10.088 (establishing requirements for termination).  



        4        In his Statement of Points on Appeal Alex challenged the superior court's  



substantive findings concerning termination, but in his briefing he argues only that his  

procedural rights were violated by the denial of his transport request.  Any challenge to  

the court's substantive findings is waived.  See, e.g.,  Wasserman v. Bartholomew, 38  

P.3d 1162, 1171 (Alaska 2002) (holding that party waived issue listed in points on appeal  

but not briefed).  



        5        Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  



Servs., 71 P.3d 811, 817, 826-28 (Alaska 2003).  



        6        Fink  v.  Municipality  of  Anchorage,  379  P.3d  183,  188  (Alaska  2016)  



(quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

(Alaska 2015)).  



                                                     -5-                                              7151
  


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

determination,     failed   to   consider    statutorily   mandated     factors,   or   assigned  

disproportionate weight to particular factors while ignoring others.' "7  



               "We review de novo whether a decision requiring a parent who is a state  



prisoner to participate telephonically rather than be transported violates his right to due  

process."8    "On  that  question,  we  will  adopt  the  rule  most  persuasive  in  light  of  



precedent, reason, and policy."9  



IV.	    DISCUSSION  



        A.	    The Superior Court Did Not Abuse Its Discretion By Denying Alex's  

               Statutory Transport Request.  



               Alaska Statute 33.30.081(f) provides that a court may order transport of a  



prisoner who is a party to a civil action "only if the court determines . . . the prisoner's  



personal appearance is essential to the just disposition of the action. . . . [T]he court shall  



consider available alternatives to the prisoner's personal appearance including deposition  



and  telephone  testimony."    In  Richard  B.  v.  State,  Department  of  Health  &  Social  



Services, Division of Family & Youth Services we identified and adopted factors other  



states  commonly  use  when  considering  prisoner  transport  requests:    (1)  "costs  and  



inconvenience  of  transporting  a  prisoner";  (2)  "potential  danger  or  security  risk";  



(3) "substantiality of the matter"; (4) "need for an early determination of the matter";  



(5) "possibility of delaying trial until the prisoner is released"; (6) "probability of success  



on the merits"; (7) "integrity of the correctional system"; and (8) "interests of the inmate  



        7      Red Elk v. McBride, 344 P.3d 818, 822 (Alaska 2015) (quoting Siekawitch  



v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).  



        8      Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  



175 P.3d 1222, 1226 (Alaska 2008) (citing Richard B., 71 P.3d at 817).  



        9      Richard B., 71 P.3d at 817.  



                                               -6-	                                         7151
  


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

in presenting . . . testimony in person."10  We have observed that AS 33.30.081(f) "vests  



significant discretion in the trial court" to make transport determinations, and that "[a]s  

with any discretionary decision, trial courts must carefully weigh all relevant factors."11  



                 Alex argues that the superior court abused its discretion by denying his  



AS 33.30.081(f) transport request.  He contends that the court "misapplied the law by  



adopting DPS's incorrect analysis of the transport issue," and that even if the analysis  



were proper, the court abused its discretion by "reach[ing] the wrong result based on the  



information before it."  Alex also suggests that by giving weight to his choice not to  



testify  at  trial,  the  court  "exact[ed]  a  penalty"  for  asserting  his  right  against  self- 



incrimination.  



                 1.	     The superior court's decision, based on the factors presented to  

                         it, was not an abuse of discretion.  



                 We first address Alex's claim that the superior court abused its discretion  



by  "reach[ing]  the  wrong  result  based  on  the  information  before  it,"  namely  the  



arguments,  authority,  and  factors  presented  in  Alex's  transport  motion  and  DPS's  



opposition.  



                 Both Alex and DPS failed to bring to the superior court's attention the eight  



factors we adopted in Richard B. for "deciding whether to grant an incarcerated parent's  

request to be transported to a termination trial" under AS 33.30.081(f).12                       The only  



factors Alex identified were those from the Mathews v. Eldridge balancing test, which  



        10       Id. at 827 (quoting B.H. v. W.S. (In re F.H.), 283 N.W.2d 202, 209 (N.D.  



1979)) ("We agree that these factors are among those a trial court should consider in  

deciding  whether  to  grant  an  incarcerated  parent's  request  to  be  transported  to  a  

termination trial.").  



        11       Id.
  



        12       Id.
  



                                                     -7-	                                             7151
  


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

we employ to determine whether a prisoner has a due process right to be transported to  

a parental rights termination trial.13  Those factors, as summarized by Alex, are "[1] the  



nature  of  [the]  private  interest  affected  by  state  action,  [2]  the  risk  of  an  erroneous  



deprivation through the procedures utilized and the probable value of other procedural  



safeguards," and "[3] the government's interests, including fiscal and administrative  



burdens that might result."  Alex made no express reference to the separate statutory  



inquiry guided by the factors set forth in Richard B .   DPS listed the following four  



factors:  (1) "whether the matter is one being prosecuted by the State of Alaska, as  



opposed to one initiated by the prisoner"; (2) "the importance of the interest at issue";  



(3)  "the  probable  value  added  by  in[-]person  attendance  rather  than  telephonic  



participation";  and  (4)  "the  [S]tate's  interest  in  avoiding  the  costs,  administrative  



burdens, and diversion of its limited resources to transport of the prisoner."  The first  



factor DPS cited was derived from our due process analysis in Richard B. ; the latter three  



factors likewise came from that due process analysis and are essentially reformulations  

of the same Mathews factors Alex relied on in his motion.14  

                 



                  Alex concedes that the four factors the superior court relied on were all  



relevant to its inquiry whether transport was required under AS 33.30.081(f).   Although  

                                                                                                       



the superior court was not presented all of the prescribed factors, its decision nonetheless  

                                                        



addressed  the  most  relevant  considerations  identified  by  Richard  B.  because  of  the  

substantial overlap between the Richard B. factors and the Mathews due process factors.15  

                                          



         13       Id. at 829-33 (applying Mathews v. Eldridge , 424 U.S. 319, 335 (1976),  



balancing test to due process claim).  



         14       See  Richard B., 71 P.3d at 830-32.  



         15       Three factors the superior court relied on correspond closely with factors  



Richard B. adopted for use in the AS 33.30.081(f) analysis:  "[t]he importance of the  

                                                                                                 (continued...)  



                                                       -8-                                                  7151
  


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

               We will address below the superior court's failure to consider the remaining  



Richard B. factors.  But having identified this limitation in the court's AS 33.30.081(f)  



analysis, to address Alex's claim that the court abused its discretion by "reach[ing] the  



wrong result based on the information before it" we first review the factors the court did  



consider.    We  then  consider  whether  its  decision  on  the  basis  of  those  factors  was  

"manifestly unreasonable."16  



                       a.     First factor:  The State was bringing the action  



               The first factor the superior court considered was "whether the matter is one  



being prosecuted by the State of Alaska, as opposed to one initiated by the prisoner."  



DPS  conceded  in  its  opposition,  and  the  court  concurred,  that  factor  favored  Alex  



because OCS initiated the termination trial.  



               DPS imported this factor from the Richard B. due process discussion, and  



it does not neatly align with any of the eight factors we said courts should consider when  

determining whether AS 33.30.081(f) requires transport.17  But it was not inappropriate  



        15     (...continued)  



interest at issue" corresponds with the third Richard B. factor ("the substantiality of the  

matter"); "the probable value added by in[-]person attendance" corresponds with the  

eighth factor ("the interests of the inmate in presenting . .  . testimony in person"); and  

"the state's interest in avoiding the costs, administrative burdens, and diversion of its  

limited resources" corresponds with the first factor ("the costs and inconvenience of  

transporting a prisoner").  See id. at 827, 830-32.  The other factor DPS raised, "whether  

the matter is one being prosecuted by the State," does not closely correspond with any  

Richard B. factor.  



        16     Fink  v.  Municipality  of  Anchorage,  379  P.3d  183,  188  (Alaska  2016)  



(quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

(Alaska 2015)).  



        17     See 71 P.3d at 827, 830-32 (applying this consideration when determining  



whether prisoners have a per se due process right to transport, before proceeding to the  

                                                                                   (continued...)  



                                               -9-                                          7151
  


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

for  the  court  to  consider  this  factor  when  conducting  its  statutory  analysis.    The  

Richard B. factors are not exclusive,18 and just as under a due process analysis, it is  



relevant to the statutory analysis that the State is "attempting to use its power to deprive  

[the parent] of a fundamental right."19  The superior court did not err by considering this  



factor  and  determining  that  it  weighed  in  Alex's  favor;  it  is  relevant  to  "the  just  

disposition of the action."20  



                        b.      Second factor:  The importance of the interest at issue  



                The second factor the superior court considered was "the importance of the  

interest at issue."  This was derived from the first Mathews due process factor21 and is  



analogous to the third Richard B. statutory factor.22  Alex's parental rights were at issue;  



it is undisputed that "[p]arents have a fundamental right to the care and custody of their  

children and this right does not immediately cease when a parent is incarcerated."23   In  



Richard B. we considered the importance of this right as a factor favoring transport under  



       17       (...continued)  



Mathews inquiry).  



       18       See  id.  at  827  ("[T]hese  factors  are  among  those  a  trial  court  should  



consider . . . .").  



       19       Id. at 830.  



       20       AS  33.30.081(f);  see  Richard  B.,  71  P.3d  at  827  ("[T]rial  courts  must  



carefully weigh all relevant factors . . . .").  



       21       See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) ("the private interest  



that will be affected by the official action").  



       22       See 71 P.3d at 827 ("the substantiality of the matter at issue").  



       23       Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  



175 P.3d 1222, 1230 (Alaska 2008).  



                                                 -10-                                             7151
  


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

AS  33.30.081(f).24    DPS  conceded  that  this  factor  "weigh[ed]  in  favor  of  ordering  



transport" and the superior court agreed.  



                We briefly note an argument DPS made in its opposition:  that this factor  



"may  be  slightly  diminished  .  .  .  given  that  [Alex]  has  already  been  convicted  in  a  



criminal case of sexually abusing . . . his children."  DPS argued the factor merited  



diminished  consideration  because  Alex  already  had  a  legal  proceeding  with  the  



opportunity "to be present and confront witnesses," he had been convicted under a higher  



burden of proof than he faced at the termination trial, and a material factual allegation  



against him had already been established.  OCS endorses this reasoning on appeal, noting  



further that Alex had not intended to testify at the termination trial.  These arguments are  



misguided.     The  importance  of  the  underlying  interest  does  not  fluctuate  based  on  



procedural  protections  enjoyed  in  other  contexts,  the  probable  value  of  in-person  



attendance, the likelihood of success on the merits, or any other analogous variable.  



Richard B. provides eight factors and leaves room for more; each consideration listed  



above has a place in a prisoner transport analysis, but these considerations do not belong  

here where focus should remain on the "substantiality of the matter at issue."25  



                       c.	     Third factor:  The probable value added by in-person as  

                               opposed to telephonic attendance  



                The third factor the superior court considered was "the probable value  



added by in[-]person attendance rather than telephonic participation."  This factor was  



        24      71 P.3d at 827-28.  



        25      Id. at 827.  



                                                -11-                                             7151  


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

derived from the second Mathews due process factor26 and is analogous to the eighth  



Richard B. statutory factor.27  

                                        



                  In his transport request Alex indicated that he had no intention of testifying  



at the termination trial, but "asserted that his presence was necessary to ensure his ability  



to consult with his counsel in a meaningful fashion and in order to protect his interest in  



confronting  and  cross-examining  the  witnesses  against  him."    Alex  argued  that  



telephonic participation "would necessarily dilute" his rights "to confront and cross- 



examine  witnesses  and  assist  counsel  during  trial";  he  also  expressed  concern  that  



"[t]elephonic participation . . . would . . . create inefficiencies during trial as [it] may  



necessitate frequent breaks" to consult with counsel.  



                  But we have regularly found that in-person attendance at a termination  



hearing is not necessary to ensure a just disposition in general, or to safeguard the rights  



Alex cites in particular.   We have recognized the particular importance of in-person  



attendance under the AS 33.30.081(f) analysis "where the credibility of a party or witness  

will likely affect the outcome of the case."28   But where, as here, the prisoner does not  



intend  to  testify,  or  where  the  credibility  of  the  testimony  is  not  at  issue,  we  have  

                                                              



generally found that courts did not abuse their discretion in denying transport requests  



         26       See 424 U.S. at 335 ("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").  



         27       See 71 P.3d at 827 ("the interests of  the inmate in presenting his testimony  



in person rather than by deposition").  



         28      Id.  



                                                      -12-                                                 7151
  


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

absent some specific showing why "the outcome of the case would depend upon" the  

prisoner's presence.29  



               In E.J.S. v. State, Department of Health & Social Services we held that a  



father was not denied his rights to effective assistance of counsel or to confront and  



cross-examine witnesses against him in a termination trial he attended telephonically,  

even though he alleged he could not hear the proceedings.30  We noted that the father's  



attorney was present and effectively cross-examined the witnesses, that the father could  



hear the proceedings well enough to promptly respond to questions posed to him, and  

that telephonic participation was authorized by court rule.31  Similarly, Alex's attorney  



was present and conducted effective cross-examination, and as OCS noted she "objected  



to the admission of certain evidence and otherwise participated" in the trial.  The superior  



court regularly ensured that Alex could hear the proceedings, and his attorney consulted  



with him in private throughout the trial.  And here the superior court not only was  



authorized to consider the viability of telephonic participation, it was required by statute  

to do so.32  



               Alex  failed  to  provide  the  superior  court  any  specific  showing  that  he  



needed  greater  protections  under  AS  33.30.081(f)  than  those  afforded  to  parents  in  



similar  circumstances.    He  raised  concerns  about  "inefficiencies"  resulting  from  



        29     Id. at 828; see also Seth D. v. State, Dep't of Health & Soc. Servs., Office  



of Children's Servs., 175 P.3d 1222, 1229-30 (Alaska 2008) (holding the court did not  

abuse its discretion where the prisoner "failed to demonstrate that his physical presence  

was needed at the trial to assist his attorney").  



        30     754 P.2d 749, 752 (Alaska 1988).  



        31     Id. (citing Alaska R. Civ. P. 99; CINA Rule 3(f)).  



        32     See AS 33.30.081(f) ("[T]he court shall consider available alternatives . . .  



including telephone testimony."); see also Alaska R. Civ. P. 99 (authorizing telephonic  

participation in civil cases); CINA Rule 3(g) (authorizing telephonic participation).  



                                               -13-                                          7151
  


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

telephonic participation, but provided no argument that any such inefficiencies were  



unique to his case and not routine inconveniences.  The superior court did not clearly err  



in  determining  that  in-person  attendance  added  little,  if  any,  probable  value  over  



telephonic attendance.  



                         d.       Fourth factor:  The State's interest against transport  



                 The fourth factor the superior court considered was "the [S]tate's interest  



in avoiding the costs, administrative burdens, and diversion of its limited resources to  

transport of the prisoner."  This was derived from the third Mathews due process factor33  



                                                                      34  

and is analogous to the first Richard B. statutory factor.                



                     

                 In  Seth D. v. State, Department of Health & Social Services, Office of  



Children's Services we advised that when opposing transport requests the State "must  



provide a specific showing" detailing what expenses and burdens it expected to incur if  

the  transport  were  ordered.35    The  showing  might  address  issues  such  as  how  the  



transport would "affect[] personnel assignments, security, and expense" and any security  

risks the prisoner posed.36  



                 DPS made a specific showing when it opposed Alex's transport request.  



DPS detailed the costs and burdens that transport would impose, including not only the  



resource expenditure associated with transporting Alex from the Fairbanks jail to the  



Fairbanks courthouse, but also the burden of flying in an additional judicial service  



        33       See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) ("the Government's  



interest, including the function involved and the fiscal and administrative burdens that  

the additional or substitute procedural requirement would entail").  



        34       See 71 P.3d at 827 ("the costs and inconvenience of transporting a prisoner  



from his place of incarceration to the courtroom").  



        35       175 P.3d 1222, 1231 (Alaska 2008).  



        36       Id.  



                                                    -14-                                               7151
  


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

officer from Anchorage and stationing that officer in Fairbanks for the week of the trial.  



Alex argues that:  those latter burdens are not properly attributable to him and should  



therefore not factor into the inquiry; under a proper accounting this factor favors him; and  



the superior court thus abused its discretion by denying his transport request in reliance  



on DPS's accounting.  



                 Central to the argument that the burdens are attributable to Alex is the fact  



that he submitted his transport request only one week before the trial was scheduled to  



commence.    The  superior  court  found  it  "problematic  that  [Alex]  wait[ed]  until  the  



eleventh  hour  to  seek  relief  for  an  issue  he  contends  is  a  fundamental  due  process  



consideration" when he had known the date of the trial for more than two months and had  

                                                           



been in custody for most of that time.  DPS was facing significant logistical challenges  



in Fairbanks during the week of Alex's trial due to a lengthy ongoing multi-litigant trial;  



judicial service officers were already being flown in to accommodate staffing shortages.  



DPS asserted a substantial burden if the transport request were granted because "other  



court orders already in place or expected" limited its available resources, and the "last  



minute  nature  of  [the]  request  does  not  provide  sufficient  time  to  re-arrange  work  



schedules for judicial service officers in Fairbanks . . . , much less rearrange scheduled  



leave or training."  



                 Alex  argues  that  DPS  should  not  "assign[]  its  staffing  shortages  and  



consequent reshuffling of resources to [him] as costs of transport.  DPS should not be  



permitted to use creative cost-accounting strategies to deny a parent's transport motion."  



He further asserts that "if this tactic is permitted, it is unlikely that any prisoner will ever  



prevail on a transport motion because DPS will always be able to identify the proximate  



costs of a prisoner's transport in the manner it did here."  



                                                    -15-                                               7151
  


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

               Alex's arguments might have had merit had he more promptly submitted  

his transport request and had he intended to testify at trial.37   Alaska Statute 33.30.081  



obliges DPS to transport indigent prisoners who are parties to civil actions when the  



"prisoner's personal appearance is essential to the just disposition of the action," and  

DPS is expected to allocate resources accordingly.38  But as a consequence of Alex's  



tardiness  in  submitting  his  transport  request  and  DPS's  existing  unique  service  



obligations, DPS could not reasonably resolve logistical conflicts and avoid unexpected  

costs.39  It was not error for the superior court to weigh this factor against Alex taking  



into account - along with his decision not to testify - the last-minute nature of his  



request and the preexisting constraints on DPS's limited resources.  



                       e.     Weighing the factors  



               Alex alleges that the superior court abused its discretion by "reach[ing] the  



wrong result based on the information before it" when denying  his AS 33.30.081(f)  



request  for  transport  to  attend  his  parental  rights  termination  trial.    But  the  court  



considered  all  of  the  factors  presented  in  Alex's  transport  request  and  in  DPS's  



opposition. It justifiably concluded that the first two factors weighed in favor of granting  



transport and the latter two factors weighed against.  Because it concluded that the latter  



two  factors  were  "more  persuasive  and  clearly  play[ed]  into  favor  of  the  state,"  it  



        37     Cf. id. at 1234 (Fabe, J., concurring) ("[W]e have never held that the mere  



cost of transportation should suffice as grounds for denying a prisoner's right to testify  

in person where a fundamental right is at stake.").  



        38     AS 33.30.081(f)-(h).  



        39     Cf. Richard B., 71 P.3d at 828 (holding that denying prisoner's transport  



request was not abuse of discretion when prisoner provided State less than a week to  

make necessary accommodations, and State would have had to incur substantial airfare  

and lodging expenses to meet request).  



                                               -16-                                          7151
  


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

exercised  its  "significant  discretion"40  to  deny  the  request.              That  decision  was  not  



"manifestly unreasonable."41  



                 2.	      Alex waived his right to argue that the superior court failed to  

                          consider other necessary factors.  



                 We next address Alex's argument that the superior court erred or abused its  



discretion because it "adopted DPS's improper analysis of the issues," considering only  



the four factors discussed above that were raised in DPS's opposition.  As Alex notes,  



OCS "acknowledges that the court abuses its discretion when it . . . fails to consider  



required factors in reaching a decision," and "concedes that Richard B. sets forth eight  



factors courts should consider in deciding whether to grant an incarcerated parent's  



transport request."  



                 OCS maintains that Alex's argument cannot serve as a basis for finding an  



abuse of discretion because the argument is new on appeal.  OCS correctly notes that  



"Alex  did  not  present  to  the  [superior]  court  the  eight  factors"  listed  in Richard  B.  

                                                      



Although Alex cited AS 33.30.081(f), he asserted only due process arguments in support  



of his motion, making no mention of the separate statutory inquiry in general or the  

Richard B. factors in particular.42  

                                             



         40	     Id. at 827.  



         41      Fink  v.  Municipality  of  Anchorage,  379  P.3d  183,  188  (Alaska  2016)  



(quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

(Alaska 2015)).  



         42      Alex did cite the requirement we established under AS 33.30.081(f) that the  



State provide in its opposition "a specific showing" of what burdens and risks it would  

have to assume to meet a prisoner's transport request.  Seth D. v. State, Dep't of Health  

                                                                                                      

& Soc. Servs., Office of Children's Servs., 175 P.3d 1222, 1231 (Alaska 2008)  But Alex  

addressed this as part of "the need for a strict examination of the parent's due process  

rights,"   making   no   reference   to   an   independent   statutory   inquiry   containing  

                                                                                               (continued...)  



                                                      -17-	                                               7151
  


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

                Alex is correct that the superior court failed to consider all of the prescribed  

Richard B. factors.43  But he failed to bring those factors to the court's attention, both in  



his original transport request and on the first day of trial when the court asked if the  



parties had anything to add to the DPS opposition before it ruled on the motion.  Where  



a party has failed to sufficiently raise an issue below we generally consider that argument  

waived.44  Alex waived his right to argue the superior court misapplied the law by failing  



to consider all eight Richard B. factors in conducting its prisoner transport analysis.  



                3.	    The superior court's failure to address all the Richard B. factors  

                       was not plain error.  



                Although Alex waived his right to argue that the superior court should have  



considered all eight Richard B. factors, we may nonetheless review the issue for plain  

error.45  "[P]lain error exists in a CINA case where an obvious mistake has been made  



which creates a high likelihood that injustice has resulted."46           There is no such high  



        42      (...continued)  



considerations beyond those raised in the due process analysis.  



        43	     See 71 P.3d at 827.  



        44      See, e.g., Sidney v. Allstate Ins. Co., 187 P.3d 443, 456 (Alaska 2008)  



(finding waiver where party made request in one-sentence statement and provided no  

justification or authority in support); State Farm Mut. Auto. Ins. Co. v. Lawrence , 26 P.3d  

 1074, 1077-78 (Alaska 2001) (holding that party waived two arguments, one by failing  

to argue it to the superior court and the other by failing to do so clearly (citing Chijide  

v. Maniilaq Ass'n of Kotzebue, Alaska, 972 P.2d 167, 173 (Alaska 1999))).  



        45      See Kyle S. v. State, Dep't of Health & Soc. Servs., 309 P.3d 1262, 1267  



(Alaska 2013) ("In CINA cases, we review issues that were not raised in the trial court  

for  plain  error."  (citing  Lucy  J.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

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



        46     Remy M. v. State, Dep't of Health & Soc. Servs., 356 P.3d 285, 288 (Alaska  



2015) (alteration in original) (quoting Kyle S., 309 P.3d at 1267).  



                                                -18-	                                         7151
  


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

likelihood  of  injustice  here  because  considering  all  eight  factors  would  not  have  



benefitted Alex.  



                Alex concedes the four factors the superior court relied upon were relevant  



to its AS 33.30.081(f) inquiry, but he asserts that the superior court failed to consider  



other Richard B. factors that favored him, namely:  "the absence of security concerns and  



the minimal costs to transport [him] from his place of incarceration to the courthouse."  



His reference to the cost of transport is puzzling, as that was a significant portion of what  



DPS briefed and the superior court considered.  Alex's reference to "the absence of  



security concerns" is less puzzling, as it is true DPS alleged no such concerns with  



respect to Alex.  But it is clear from DPS's position that there were heightened security  



concerns at the Fairbanks courthouse during the week of Alex's trial, and given that  



neither party specifically raised this issue in the superior court, Alex provides no basis  



to conclude that this factor should affirmatively favor him, rather than simply remain  



neutral.  And even assuming that this factor would favor him for purposes of this plain  



error analysis, it is outweighed by other considerations.  



                Most significantly Alex fails to acknowledge that the sixth Richard B.  

factor, "the probability of success on the merits,"47 is not in his favor.  Alex's criminal  



conviction is relevant to that inquiry.  As the superior court ruled, "the doctrines of res  



judicata  and  collateral  estoppel  apply  in  this  case  with  respect  to  [Alex's]  criminal  



convictions,  and  .  .  .  [Alex]  did  sexually  abuse  the  three  children."    This  virtually  

foreclosed  the  possibility  that  Alex's  children  would  not  be  found  in  need  of  aid,48  



        47      71 P.3d at 827.  



        48      See AS 47.10.011(7) ("[T]he court may find a child to be a child in need of  



aid if it finds . . . that the child . . . has suffered sexual abuse . . . as a result of conduct by  

. . . the child's parent . . . ."); AS 47.10.088(a) (listing a finding that a child is in need of  

aid under AS 47.10.011 as the first element in the parental rights termination inquiry).  



                                                -19-                                           7151
  


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

diminishing Alex's probability of success on the merits in his parental rights termination  



trial. In spite of that low probability Alex argues that his criminal conviction should have  



allowed him "enhanced protections" because he was "facing the destruction of [his]  



family."  He quotes Santosky v. Kramer for the proposition that the fundamental right to  



parent "does not evaporate simply because [the parents] have not been model parents or  

have lost temporary custody of their child to the State."49  But that case, involving federal  



due process rights, is not relevant to this independent statutory inquiry.50  And because  



"probability of success on the merits" is one of the Richard B. factors courts should  



consider  when  ruling  on  transport  requests  brought  under  AS  33.30.081(f),  Alex  is  



mistaken in arguing that his criminal conviction entitles him to "enhanced protections"  



under the relevant statutory inquiry.  



                 Alex makes no substantial argument that any Richard B. factor the superior  



court failed to consider would favor him, and he fails to recognize that at least one factor,  

the  "probability  of  success  on  the  merits,"  would  militate  strongly  against  him.51  

                                                                                                               



Because it is unlikely that consideration of the other Richard B. factors would have  



resulted in a different outcome, there is no "high likelihood that injustice has resulted"  



from the court's failure to sua sponte address those factors, and so there is no plain  



       52  

error. 



         49      455 U.S. 745, 753 (1982).  



         50      See Richard B., 71 P.3d at 826-31 (analyzing first whether transport was  



required under AS 33.30.081(f) and then whether it was required under due process).  



         51      Id. at 827.  



         52      Remy M. v. State, Dep't of Health & Soc. Servs., 356 P.3d 285, 288 (Alaska  



2015) (alteration in original) (quoting Kyle S. v. State, Dep't of Health & Soc. Servs.,  

Office of Children's Servs., 309 P.3d 1262, 1267 (Alaska 2013)).  



                                                     -20-                                               7151
  


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

                 4.	     The superior court did not exact a penalty for Alex's assertion  

                         of his right against self-incrimination.  



                 Alex argues that his decision not to testify should not weigh against him in  



an AS 33.30.081(f) inquiry whether his presence was "essential to the just disposition of  

the action."53  He argues that denying transport because he is not asserting his right to  



testify would "exact a penalty" for his "assertion of the right against self-incrimination"  



and maintains that he is "not required to give up his Fifth Amendment privilege . . . to  



prevail on a request to be transported to  his termination trial."  OCS argues that no  



penalty was exacted because Alex "fully participated in the trial."   



                 We conclude that no penalty has been exacted on Alex's assertion of the  



right against self-incrimination.  The inquiry under AS 33.30.081(f) enables prisoners to  

attend trials when their presence is "essential to the just disposition of the action."54   If  



prisoners choose not to testify, their personal presence is less essential and they face  



heightened  risk  that  transport  may  not  be  granted.    But  the  "essential  to  a  just  

disposition" inquiry ensures that prisoners' rights and interests are protected.55  "Penalty"  



may be defined broadly in this context, but it still requires some "costly" "sanction";56  



here  there  is  no  sanction  because  the  court  ensured  that  Alex's  rights  would  be  



        53       AS  33.30.081(f).    But  see  id.  ("[T]he  court  shall  consider  available  



alternatives to the prisoner's personal appearance including deposition and telephone  

testimony.").  



        54       AS 33.30.081(f).  



        55       Id.  



        56       Armstrong v. Tanaka , 228 P.3d 79, 82-85 (Alaska 2010) (quoting Spevack  



v. Klein, 385 U.S. 511, 515 (1967)) (holding that "proceedings must adequately protect  

the individual's overlapping rights," and that a penalty might be exacted on the assertion  

of the right against self-incrimination if  declining to stay civil proceedings infringed on  

the party's "right of access to the courts").  



                                                    -21-	                                             7151
  


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

sufficiently protected and the disposition of the action would not be affected by his  



telephonic participation.   That he would have preferred to attend the trial despite the  



sufficiency of those protections does not alter this determination.   



       B.	     The Superior Court Did Not Violate Alex's Due Process Rights By  

               Denying His Transport Request.  

               We next consider Alex's constitutional due process claim.57  The "right to  



the care and custody of one's own child is a fundamental right recognized by both the  

federal and state constitutions,"58 and therefore "falls within the protections of the due  



process clause."59  However, "case law has not established a procedural due process right  



of incarcerated parents to be transported to parental rights termination trials," even if the  

parent intends to testify in the proceeding.60  Prisoner-transport cases are distinguishable  



from other fundamental rights due process cases requiring an in-person hearing:  the  



question in the latter is " 'whether a hearing officer must permit an individual to appear  



in  person  for  a  hearing,'  whereas  in  a  termination  hearing  'we  are  asked  to  decide  

whether the state should be required to transport a prisoner . . . for a trial.' "61  



               "Although transportation of an incarcerated parent to attend a termination  



trial is not required by due process," we nonetheless in each case apply "the balancing  



       57	     See U.S. Const. amend. XIV,  1; Alaska Const. art. I,  7.  



       58      Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  



175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R. , 15 P.3d 253, 257 (Alaska  

2001)).  



       59      Id. at 1228 (quoting Richard B. v. State, Dep't of Health & Soc. Servs., Div.  



of Family & Youth Servs., 71 P.3d 811, 831 (Alaska 2003)).  



       60      Id. at 1227 (citing Richard B., 71 P.3d at 828).  



       61      Id. (emphasis in original) (quoting Richard B., 71 P.3d at 829-30).  



                                              -22-	                                        7151
  


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

test of  Mathews v. Eldridge to determine whether a parent was deprived due process."62  



That balancing test requires consideration of three factors:  



               First, the private interest that will be affected . . . ; 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.[63]  



               When applying this test we have noted that "[t]he crux of due process is  

opportunity to be heard and the right to adequately represent one's interests,"64 but that  



the precise process due varies with the "particular set of circumstances" of the case.65  In  



cases involving a prisoner petitioning for transport to a parental termination proceeding,  



courts must "consider all relevant factors, including the disputed issues, whether a parent  



plans to testify, the relevance of a parent's testimony to the disputed issues, the costs to  

the state . . . and any threat to public safety."66  



        62     Id. (emphasis added) (citing Mathews v. Eldridge , 424 U.S. 319, 334-35  



(1976); Richard B., 71 P.3d at 831).  



        63     Richard B., 71 P.3d at 829 (quoting Mathews , 424 U.S. at 335).  



        64     In re K.L.J. , 813 P.2d 276, 279 (Alaska 1991) (quoting Matanuska Maid,  



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



        65     Id. at 278 (quoting Arctic Structures, Inc. v. Wedmore , 605 P.2d 426, 436  



(Alaska 1979)); see also Richard B., 71 P.3d at 833 ("Our holding today is limited and  

tied closely to the facts of this case.").  



        66     Richard B., 71 P.3d at 833.  



                                                -23-                                          7151
  


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

               1.	    First  factor:   The  private  interest  affected  weighs  in  Alex's  

                      favor.  



               The first Mathews factor, "the private interest that will be affected," clearly  

weighs in Alex's favor, and OCS concedes as much.67  It is well established that "[t]he  



right to custody of one's own child 'clearly falls within the protections of the due process  

clause and should be accorded significant weight.' "68  



               Although this first factor already weighs in Alex's favor, he attempts to gain  



further balancing weight by arguing that his parental rights are "not the only interest  



implicated in the court's decision" and that his right to counsel and right to present a  



defense were also affected and should receive consideration.  Alex argues that "[b]oth  



of these fair trial rights are critical to the protection of the right to parent; thus, they  



deserve distinct consideration and weigh heavily in the due process balancing."  



               Alex's   argument    that   these  fair  trial  rights  deserve   independent  



consideration and balancing weight under the first factor of the Mathews test is unsound.  



The Mathews test's purpose is determining precisely what process is due in varying  



circumstances where it is alleged that existing procedures provide insufficient safeguard  

against the risk that official action will erroneously harm a private substantive interest;69  



its aim is not to protect procedural rights that already have attached, but to determine  



       67      Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  



175 P.3d 1222, 1227 (Alaska 2008) (quoting Richard B., 71 P.3d at 829). See id. at 1227- 

28 (first quoting J.M.R. v. S.T.R. , 15 P.3d 253, 257 (Alaska 2001); then citing Flores v.  

Flores, 598 P.2d 893, 895 (Alaska 1979); and then quoting Richard B., 71 P.3d at 831).  



       68      Id. at 1228 (quoting Richard B., 71 P.3d at 831).  



       69      See In re K.L.J., 813 P.2d 276, 278-79 (Alaska 1991) (discussing how  



requirements of due process clause vary with circumstances, employing Mathews test to  

"determine what process is due," and identifying substantive right as the private interest  

affected).  



                                             -24-	                                       7151
  


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

whether those existing procedures sufficiently protect the underlying substantive interest.  



Fair trial rights already originate in the due process clause, are well established, and  

attach without any need for courts to engage in the Mathews balancing test.70  Appending  



preexisting due process rights to the first Mathews factor to provide it additional weight  



is  tautological  -  Alex  asks  us  to  grant  more  procedural  protections  because  some  



procedural  protections  already  exist,  not  because  of  any  change  to  the  underlying  



substantive interest or because the existing due process rights are shown inadequate.  



                Rather  than  giving  separate  weight  to  the  various  procedural  rights  



independently established under the due process clause, inquiry under the first Mathews  

factor  into  "the  private  interest  that  will  be  affected"71  is  properly  limited  to  the  



significance of the underlying substantive right requiring protection.72  Whether attendant  



procedural rights were inadequate or unduly infringed is relevant in this context under  



the second Mathews factor, below - but only to the extent Alex demonstrates that  



additional safeguards would have "reduc[ed] the risk that [his] parental rights might be  

erroneously terminated."73  



        70     See V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983) ("[T]he due process  



clause of the Alaska Constitution guarantees the right to counsel in proceedings brought  

to terminate parental rights." (citation omitted) (emphasis added)); Keith v. State, 612  

P.2d 977, 982-83 (Alaska 1980) (noting that "the due process right to a fair trial" would  

be infringed if the ability to affirmatively  prove one's innocence were substantially  

limited).  



        71     Mathews v. Eldridge , 424 U.S. 319, 335 (1976).  



        72     See, e.g., Seth D., 175 P.3d at 1227-28 (recognizing the right to custody as  



the relevant interest under the first Mathews factor); Richard B., 71 P.3d at 831 (same).  



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



2000).  



                                                -25-                                           7151
  


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

                 2.	     Second  factor:         The  risk  of  erroneous  deprivation  and  the  

                         probable  value  of  additional  procedural  safeguards  weigh  

                         against Alex.  



                 Under the second Mathews factor "a theoretical possibility of prejudice is  



not enough; . . . a court must assess 'the probable value' of [the requested procedure] in  



reducing the risk that parental rights might be erroneously terminated.  Thus, a court must  

consider the likelihood that [the requested procedure] might alter the outcome."74  To  



answer that question we "assess the ways which [the parent] claims she might have been  



prejudiced.  This is not the same as determining whether any constitutional error was  



harmless, but more fundamentally considers whether" failure to provide the requested  

procedure deprives the parent of a sufficient opportunity to present a case.75 

                                                                                              "In deciding  



whether it might, we consider the issues presented in a termination proceeding, and a  

parent's ability to protect her interests at the . . . proceedings."76  



                 Alex  asserts  that  his  inability  to  attend  in  person  his  parental  rights  



termination trial risked impairing his right to counsel and his right to present a defense.  



An  analysis  of  the  issues  that  were  to  be  presented  at  Alex's  termination  trial  



demonstrates  that  granting  the  transport  request  was  unlikely  to  have  altered  the  



proceedings'  outcome.    A  review  of  the  record  and  Alex's  single  claim  of  actual  

prejudice confirms this "theoretical analysis."77  



                         a.	      Alex's presence would not have reduced the risk that his  

                                  parental rights might be erroneously terminated.  



        74       Id.  



        75       Id.  



        76       Id. at 212-13.  



        77       Id. at 213.  



                                                    -26-	                                              7151
  


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

                 Alex makes a number of assertions about the generic benefits of close  



attorney-client communication and in-person attendance and suggests that those benefits  



should weight the second Mathews factor in his favor because they "would have ensured  



Alex received a fundamentally fair trial."  But we have previously held that the generic  



benefits of in-person attendance do not suffice to establish a per se due process right for  

a prisoner to be transported to a termination trial.78   To establish a due process right to  



transport  a  prisoner  must  address  the  particular  issues  being  determined  at  the  



termination trial and identify how in-person attendance would reduce the risk of an  

erroneous ruling on those issues.79  



                 The issues to be decided at Alex's termination trial were circumscribed as  



a  consequence  of  his  criminal  conviction.    As  discussed  earlier  Alex's  conviction  

                                                         



virtually foreclosed the possibility that his children would not be found in need of aid  

under AS 47.10.011(7).80  And due to his incarceration the children would have been  



found in need of aid under AS 47.10.011(2), unless either Maeve could demonstrate that  



she was not absent and had not "committed conduct or created conditions" causing the  



children  to  be  in  need  of  aid,  or  Alex  could  demonstrate  he  had  "made  adequate  



        78       See Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs., 175 P.3d 1222, 1227 (Alaska 2008) ("[C]ase law has not established a procedural  

due process right of incarcerated parents to be transported to parental rights termination  

trials.");  see also E.J.S. v. State, Dep't of Health & Soc. Servs., 754 P.2d 749, 752  

(Alaska 1988) (holding that father's due process rights were not violated by telephonic  

participation in termination trial).  



        79       Cf.  D.M.,  995  P.2d  at  212-14  (inquiring  into  particular  issues  to  be  



addressed in due process case involving lack of advance notice).  



        80       See AS 47.10.011 ("[T]he court may find a child to be a child in need of aid  



if it finds . . . (7) the child has suffered sexual abuse . . . as a result of conduct by . . . the  

child's parent . . . .").  



                                                    -27-                                              7151
  


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

arrangements" for the children.81  Alex largely conceded OCS's case against him; he  



ultimately argued only that there was no continuing danger to the children due to his  



incarceration and that Maeve's parental rights should not be terminated because she had  



not abused the children.  Maeve was represented by counsel and present at the trial to  



independently defend against allegations that she had caused the children to be in need  



of aid.  There is no reason to believe Alex's presence at the proceedings would have  



affected the court's ruling on that issue.  



                When addressing in his Proposed Findings of Fact and Conclusions of Law  



whether OCS made sufficient reasonable efforts to help the parents remedy their behavior  

that rendered the children in need of aid,82 Alex deferred entirely to Maeve's arguments.  



It is unlikely Alex could have better assisted his attorney in arguing this issue during the  



trial  had  he  attended  in-person,  as  the  record  is  clear  that  Alex  had  no  personal  



knowledge of OCS's efforts because he had refused to engage with the caseworkers.  



Finally, it is unlikely Alex's in-person attendance would have assisted his attorney in  

litigating the best interests of the children.83         He had not been allowed visitation or  



contact with the children in two years, the children were themselves represented by a  



guardian ad litem, and the only argument he made on that issue in his Proposed Findings  



        81      AS 47.10.011(2) provides that a court may find a child to be in need of aid  



if the child's parent is incarcerated, "the other parent is absent or has committed conduct  

or  created  conditions  that  cause  the  child  to  be  a  child  in  need  of  aid  .  .  .  and  the  

incarcerated parent has not made adequate arrangements for the child."  



        82      See AS 47.10.088(a)(3) (providing that before terminating parental rights  



the  court  must  find  OCS  has  complied  with  AS  47.10.086's  "reasonable  efforts"  

provisions);  AS  47.10.086  (requiring,  with  exceptions,  that  OCS  make  "reasonable  

efforts to provide family support services . . . to enable the safe return of the child to the  

family home").  



        83      See AS 47.10.088(b)-(c) (requiring courts to consider the best interests of  



the child in termination proceedings and identifying some relevant considerations).  



                                                  -28-                                             7151
  


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

was to note the children had "never reported any abuse at the hands of their mother," a  



position  Alex's  counsel  could  assert  at  trial  without  Alex's  presence.   There  is  no  



indication that the superior court increased the risk of an erroneous ruling on any of these  



dispositive issues by denying Alex's transport request.  



                      b.	    A review of the record confirms that Alex's interests were  

                             sufficiently protected without transport.  



               Similar  to D.M.  v.  State,  Division  of  Family  &  Youth  Services,  "[o]ur  



theoretical analysis of the second Mathews prong is confirmed by our review of the  



record, and by [Alex's] failure to identify any plausible way that [he] was prejudiced in  

the  termination  proceedings."84    Alex  argues  that  "in-person  attendance  promotes  



fulfillment of the right to counsel."  He notes that "the right to counsel is . . . illusory  



absent effective communication between the attorney and the parent," and that the "need  



for  close  communication  is  particularly  compelling  in  termination  trials,  where  the  



proceedings typically address many events over the course of several years" making "the  



client's recall and ability to consult with the attorney . . . critical."  But Alex does not  



assert that he and his attorney were unable to effectively communicate.  The superior  



court regularly ensured that Alex could hear the proceedings, and Alex consulted with  



his attorney in private throughout the trial.  



               Alex next argues that "a parent's personal presence protects the parent's  



right to present a defense," and notes that this is broader than merely the right to provide  



testimony.  It includes, for instance, "the right to introduce evidence that might otherwise  



be barred by evidentiary rules" and the right "to confront and cross-examine witnesses  



and assist counsel during trial." Alex maintains that had he been present, he "could have  



proposed lines of questioning and assisted his attorney in deciding the best strategy for  



defending his parental rights.  He could have filled in gaps in the facts and aided his  



       84      995 P.2d at 213.  



                                             -29-	                                         7151  


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

attorney in reviewing exhibits for accuracy."  But Alex fails to point to any evidence he  



would have introduced or lines of questioning he would have proposed had he attended  



the trial in person.  He points to no factual gaps, and he fails to note that virtually all of  



the termination trial testimony was provided by two OCS caseworkers with whom he had  



refused to engage.  There was no actual prejudice to his right to  present a defense or  



indication that in-person attendance would have altered the outcome.  



                         c.	     The single instance of possible judicial interference does  

                                 not demonstrate that Alex's presence would have reduced  

                                 the risk of erroneous deprivation.  



                 Alex asserts that a "colloquy" between his lawyer and the superior court  



regarding Alex's request to call his children as witnesses "impermissibly interfered with  



[his]  attorney-client  relationship  and  thus  his  defense,"  and  that  he  has  thereby  



established "more than a theoretical possibility that his rights to counsel and to present  



a defense were prejudiced by the court's decision to deny his transport motion."  But the  



court's actions ultimately did not infringe on his attorney-client relationship, and Alex  



fails to demonstrate how his presence would have caused the court to act differently,  



prevented any prejudice, or altered the proceedings' outcome.  



                 The exchange in question resulted from Alex's counsel's request to call  



Alex's children to testify.  The attorney  felt that the OCS permanency plans for the  



children might not be viable and that earlier testimony had called into question whether  



Alex's son wanted to terminate his relationship with his parents.  The attorney requested  



the opportunity to call the children, explaining that she did not wish to revisit issues  



already litigated in the criminal trial and that she hoped to question them only about the  

permanency plans and their wishes concerning termination.85  

                                                                              



        85       See Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 184-85 (Alaska  



2008)  ("[A]  court  can  also  consider  the  fact  that  there  are  no  favorable  permanent  

                                                                                           (continued...)  



                                                   -30-	                                             7151
  


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

               The superior court was very reluctant to permit the children to testify after  



Alex  had  the  opportunity  to  confront  and  cross-examine  them  in  the  criminal  case.  



Presumably because of this reluctance, the court "questioned whether this request was  



coming  directly  from  Alex,"  and  required  the  attorney  to  "consult  with  [Alex]  and  



represent in court that the father wants the children to testify as to what subjects."  Alex's  



attorney in response "asked whether the court was suggesting that Alex, rather than his  

attorney, controlled the litigation strategy."86      The court denied this suggestion, "but  



ultimately instructed Alex's attorney to consult with Alex for the purpose of representing  



to the court whether the decision to call the minors as witnesses was coming from Alex  



or his attorney."  



               Alex correctly finds some fault with the superior court's initial statement  



that the attorney was required to consult with her client and then "represent that's what  



the father wants to do."  Quoting Downie v. Superior Court, Alex notes that the attorney- 



client privilege and Alaska Rule of Professional Conduct 1.6 "prohibit an attorney from  



disclosing the confidential communications between a lawyer and her client" and that  



"[t]his protection extends to 'confidences between attorney and client imparted for the  



        85     (...continued)  



placement  options  for  a  child  .  .  .  as  a  factor  in  determining  whether  terminating  a  

parent's rights would be in a child's best interests."); see also Doe v. State, Dep't of  

Health & Soc. Servs., Office of Children's Servs., 272 P.3d 1014, 1023-24 (Alaska 2012)  

(upholding termination of parental rights in relation to some children but not others due  

to children's differing needs); cf. AS 25.24.150(c)(3) (providing child's preference is  

relevant to a best interests determination in the child custody context).  



        86     See Alaska R. Prof. Conduct 1.2(a) (stating that a lawyer must "abide by a  



client's decisions concerning the objectives of representation" but is only required to  

"consult with the client as to the means by which they are to be pursued").  



                                                -31-                                          7151
  


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

purpose of securing legal advice or representation.' "87             Nonetheless OCS correctly  



observes that no attorney-client communications ultimately were revealed - after a  



recess the court confirmed that Alex's attorney had conferred with her client on the  



matter but did not require elaboration when the attorney simply stated that "[w]e don't  



intend to call any witnesses at this time."  



                More broadly, Alex argues that by even asking the question the court "put  



Alex and his attorney in an untenable position."  Because the court had "telegraphed its  



displeasure" about the attorney's desire to call the children to testify and then required  



the attorney to consult with her client, "Alex could reasonably expect the court to hold"  



it against him if he chose to support the attorney's request to call the children.  Alex  



maintains that "when a client stands to bear the consequences of an attorney's strategic  



decisions, the attorney is faced with an unfair choice:  proceed with the best defense  



strategy or acquiesce to the court.  The [superior] court should not have placed Alex's  



attorney in the position of making this choice."  



                But regardless of the propriety of the superior court's conduct, Alex fails  



to demonstrate how his presence in the courtroom would have substantively altered the  



events or prevented any negative consequences he believes resulted.  Alex asserts that  



"[t]he court would have recognized the impropriety of directly confronting Alex, as  



opposed  to  his  attorney,  in  court.    The  court  may  have  questioned  Alex's  attorney  



regarding  the  request  .  .  .  ,  but  the  court  would  not  have  taken  the  unusual  step  of  



instructing the lawyer to report her client's perspective . . . ."  We conclude that to the  



extent  Alex  has  identified  impermissible  judicial  interference,  he  has  failed  to  



demonstrate  the  value  his  in-person  presence  would  have  had  in  reducing  that  



interference  and  thereby  decreasing  the  likelihood  that  his  parental  rights  would  be  



        87      888 P.2d 1306, 1308 (Alaska App. 1995); see Alaska R. Prof. Conduct 1.6;  



Alaska R. Evid. 503.  



                                                 -32-                                             7151  


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

erroneously terminated.  His judicial interference allegations are therefore unmoored  



from the relevant inquiry under the second Mathews factor:  " 'the probable value' of [the  



requested  procedure]  in  reducing  the  risk  that  parental  rights  might  be  erroneously  

terminated."88  



               3.	     Third    factor:     The    cost   and    administrative     burden     of  

                       transporting Alex weigh against him because they would have  

                       resulted from his last-minute request.  



               The primary competing governmental interest that OCS asserts under the  



third Mathews factor is the cost and administrative burden of transporting Alex to court.  



The parties present the same arguments and considerations here as when discussing "the  



[S]tate's  interest  in  avoiding  the  costs,  administrative  burdens,  and  diversion  of  its  

limited resources to transport of the prisoner" under the AS 33.30.081(f) analysis.89  We  



incorporate our earlier analysis here:  had Alex provided DPS more time to arrange its  



resources to accommodate his request, he would have a stronger argument that the costs  



attributed  to  him  in  the  DPS  opposition  were  impermissible.    But  the  costs  were  



unavoidable due to the unreasonably short time frame he provided DPS, and it is proper  



to attribute those costs to him for purposes of the Mathews test.  



               Alex asserts, citing In re K.L.J., that the government's interest in avoiding  



the burdens of transport should be given less weight "given the fact that OCS shares an  



interest in obtaining just and accurate results in termination trials and in protecting the  

rights of indigent parents."90  But In re K.L.J. dealt with whether a parent was entitled to  



        88     D.M., 995 P.2d at 212.  



        89     See supra Section IV.A.1.d.  



        90     See 813 P.2d 276, 279-80 (Alaska 1991) (holding that the state "shares the  



parent's interest in an accurate and just decision," and so "the interests of both the state  

and the parent in the availability of appointed counsel coincide here").  



                                               -33-	                                        7151
  


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

appointed counsel,91 and we decline to extend that reasoning to the prisoner transport  



context.     To  assume  the  State  has  an  interest  in  Alex's  in-person  presence  at  the  



termination trial to ensure an adequate and just result presupposes the outcome of the  



inquiry under the second Mathews factor, above.  Alex asserts no new arguments here  



that affect our determination that his presence was not essential to a just disposition, and  



so we elect not to discount OCS's asserted government interest as he suggests.  This  



factor weighs slightly against Alex.  



                 4.	     Weighing the factors:  The superior court did not violate Alex's  

                         right to due process by declining to order his transport.  



                 The first Mathews factor, "the private interest that will be affected by the  

official action,"92 indisputably weighs in Alex's favor.  The second Mathews factor, "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,"93  weighs  



against Alex.  Alex fails to demonstrate how his in-person attendance could have altered  



the outcome of the proceedings or why his telephonic attendance increased the risk that  



the superior court would reach an erroneous result.  Finally, the third Mathews factor,  



"the  Government's  interest,  including  the  function  involved  and  the  fiscal  and  



administrative burdens that the additional or substitute procedural requirement would  

entail,"94  weighs  slightly  against  Alex.         In  balance  we  conclude  that  Alex  was  not  



deprived of due process by the superior court's refusal to order his transport to his  



parental rights termination trial.  



        91       Id. at 278.  



        92       Mathews v. Eldridge , 424 U.S. 319, 335 (1976).  



        93       Id.  



        94       Id.  



                                                    -34-	                                             7151
  


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

V.      CONCLUSION  



               We  AFFIRM  the  superior  court's  decision  terminating  Alex's  parental  



rights.  



                                               -35-                                         7151
  

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