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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Diego K. v. State, Dept. of Health & Social Services, Office of Children's Services (2/23/2018) sp-7226

Diego K. v. State, Dept. of Health & Social Services, Office of Children's Services (2/23/2018) sp-7226, 411 P3d 622

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



DIEGO  K.  and  CATHARINE  K.,                                   )  

                                                                 )     Supreme  Court  No.  S-16374  

                              Appellants,                        )  

                                                                                                                               

                                                                 )     Superior Court No. 4SM-14-00002 CN  

          v.                                                     )  

                                                                                           

                                                                 )     O P I N I O N  

                                     

STATE OF ALASKA, DEPARTMENT                                      )
  

                                          

OF HEALTH & SOCIAL SERVICES,                                     )                                            

                                                                       No. 7226 - February 23, 2018
  

                                             

OFFICE OF CHILDREN'S SERVICES,  )
  

                                                                 )  

                              Appellee.                          )  

                                                                 )  



                                                                                                    

                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                             

                    Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  

                    Judge.  



                                                                                                 

                    Appearances:  Renee McFarland, Assistant Public Defender,  

                                                                                                          

                    and  Quinlan   Steiner,  Public  Defender,  Anchorage,   for  

                                                                                                 

                    Appellant  Diego  K.               William  T.  Montgomery,  Assistant  

                                                                                                     

                    Public  Advocate,  Bethel,  and  Richard  K.  Allen,  Public  

                                                                                                                 

                    Advocate,           Anchorage,           for     Appellant           Catharine          K.  

                                                                                              

                    Kathryn R. Vogel, Assistant Attorney General, Anchorage,  

                                                                                                          

                    and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                                                                                          

                    Appellee.          Justin  Facey,  Assistant  Public  Advocate,  and  

                                                                                                             

                    Richard K. Allen, Public Advocate, Anchorage, on behalf of  

                    minor.  



                                                                                                     

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

                                         

                    and Carney, Justices.  



                                       

                    CARNEY, Justice.  


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

I.          INTRODUCTION  



                        Parents appeal from a superior court's order that the Office of Children's  

                                                                                                                                       



Services (OCS) had satisfied the Indian Child Welfare Act's (ICWA) requirements  

                                                                                                                                  

                                                                                                                                        1   Because  

authorizing the removal of their daughter, an Indian child, from their custody.    

                                                                                                                          



the court relied on information that was not in evidence to make the required ICWA  

                                                                                                                                              

removal findings,2  we vacate the order authorizing removal.  

                                                                                            



II.         FACTS AND PROCEEDINGS  

                                       

                        Diego K. and Catharine K. have a 16-year-old daughter, Mary,3  

                                                                                                                                                      

                                                                                                                                         who is an  



                                                           4  

                                                                                                                                                 

Indian child as defined by ICWA.                              OCS took emergency custody of Mary and her older  



                                                                                                                                              

brother Claude in March 2014.  It acted following a December 2013 report that Claude  



                                                                                                                                                     

had been medivaced out of the family's village due to alcohol poisoning and that his  



                                                                                                                                                

parents had been too intoxicated to accompany him, and a March 2014 report that Diego  



                                                                                                                                       

and Catharine were intoxicated and fighting in their home. OCS alleged in its emergency  



            1           Indian   Child   Welfare   Act,  25   U.S.C.      1901-1963   (2012).     ICWA  



establishes "minimum Federal standards for the removal of Indian children from their                                                              

families and [for] the placement of such children in foster or adoptive homes which will                                                            

reflect the unique values of Indian culture."                                  25 U.S.C.  1902.        



            2           Before a trial court may issue an order removing an Indian child from the  

                                                                                                                                                     

child's parent the court must make two findings.  25 U.S.C.  1912(d)-(e).  First, OCS  

                                                                                                                                                  

"shall satisfy the court that active efforts have been made to provide remedial services  

                                          

and rehabilitative programs designed to prevent the breakup of the Indian family and that  

                                                                                                                                                    

these efforts have proved unsuccessful"; this is known as an active efforts finding.  

                                                                                                                                                            

25 U.S.C.  1912(d). Second, the court must make "a determination, supported by clear  

                                                                                                                                                  

and convincing evidence, including testimony of qualified expert witnesses, that the  

                                                                                                                                                    

continued custody of the child by the parent . . . is likely to result in serious emotional  

                                                                                                      

or physical damage to the child."  25 U.S.C.  1912(e).  

                                                                                   



            3           We use pseudonyms to protect the family's privacy.  

                                                                                                       



            4           See 25 U.S.C.  1903(4).  

                                                     



                                                                          -2-                                                                    7226
  


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

petition that the court should make child in need of aid (CINA) findings under a number                                                         



                                                    5  

of sections of AS 47.10.011:                                                                                                                 

                                                       (6) (physical harm), (8)(B) (mental injury), (9) (neglect),  

                                                   6  At the emergency custody hearing Diego and Catharine  

                                                                                                                                            

                                      

and (10) (substance abuse). 



stipulated to probable cause that their children were in need of aid under AS 47.10.011,  

                                                                                                                                           



without admitting any of the facts alleged in the petition, and to temporary OCS custody  

                                                                                                                                                



pending  an  adjudication  hearing.                                  In  August  Diego  and  Catharine  stipulated  to  

                                                                                                                                     



adjudication of both children as children in need of aid under AS 47.10.011(9) (neglect),  

                                                                                                                                             



and to continued temporary OCS custody pending disposition.  

                                                                                                                    



                        The superior court held a disposition hearing over two days in December  

                                                                                                                                           



and January.  OCS argued for an order authorizing it to remove the children from their  

                                                                                                                                                      

parents' home;7 the parents urged the court to grant OCS only the authority to supervise  

                                                                                                                                             



                    8  

the family.   

        



            5           AS 47.10.011 sets forth 12 grounds on which a child may be determined                                             



to be in need of aid.           



            6           The petition alleged that as a result of the parents' substance abuse, the  

                                                                                                                                                        

children were in need of aid because they were being neglected and had suffered both  

                                                                                        

physical harm and mental injury.  It stated the children were neglected when the parents  

                                                                                                                                                 

were too intoxicated to accompany Claude for medical treatment and that the children  

                                                                                                                         

were  at  risk  of  physical  harm and  mental  injury  at  that  time,  as  well  as  when  the  

                                                                                                                                            

intoxicated parents were fighting.  

                                                               



            7           See AS 47.10.080(c)(1) (authorizing court to find child to be in need of aid  

                                                                                                                                                         

and order child placed in OCS's temporary custody).  

                                                                                 



            8           See AS 47.10.080(c)(2) (authorizing court to find child to be in need of aid  

                                                                                                                                                         

and order  OCS supervision  over  child  while remaining  in  custody of its parent or  

                                                                                                                                                          

guardian).  



                                                                            -3-                                                                     7226
  


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

                            In support of its removal request, OCS called an expert as required by                                                                            



                                                  9  

ICWA section                     1912(e).                                                                                                     

                                                        OCS offered  Dr.  Valerie Warren  as an  expert  in  clinical  



                                                                                                                                                                    

psychology with experience treating Native patients.  The court qualified Dr. Warren  



                                                                                                                                                                     

over the parents' objections. She testified that the parents' continued custody of Claude  



                                                                                                                                                                             

and Mary placed the children at a serious risk of harm, and that, in her opinion, the  



                                                                                                                                                                                

children could not be safely returned to their parents as long as the parents continued to  



                               

drink alcohol.  



                                                                                                                                                                             

                            The OCS caseworker assigned to work with the family testified that the  



                                                                                                                                                                                 

parents' drinking and domestic violence placed the children at risk, that there was a  



                                                                                                                                                                            

serious problem with mold on the walls throughout the family's home, and that she  



                                                                                                                                                                            

believed these threats still existed.  In response to questioning about the efforts she had  



                                                                                                                                                                            

made to prevent the breakup of the family, the OCS caseworker testified that she had  



                                                                                                                                                                             

referred the parents to family counseling with Dr. Warren, helped the parents fill out  



                                                                                                                                                                   

paperwork for housing assistance to receive grants to repair their home, and referred  



                                                                                                                                                                           

them for substance abuse counseling and urinalysis testing in the village.   She also  



                                                                                                                                                                  

testified to the services provided to the children, including assisting Mary with personal  



                                                                                                                                                                              

hygiene and enrolling her in recreational camps, as well as helping Claude join an  



                                                                                                                                                                                10  

                                                                                                                                                                                     

AmeriCorps program and flying Catharine to his AmeriCorps graduation ceremony. 



              9             "No   foster   care   placement   may   be   ordered   .   .   .   in   the   absence   of   a  



determination,   supported   by   clear   and   convincing   evidence,   including   testimony   of  

qualified expert witnesses                            , that the continued custody of the child by the parent . . . is                                                        

likely   to   result   in   serious   emotional   or   physical   damage   to   the   child."     25   U.S.C.  

 1912(e) (emphasis added).                 



              10            AmeriCorps  is  a  national  network  of  service  programs  that  engage  

                                                                                                                                  

volunteers to provide services to local communities and non-profits. AmeriCorps FAQs ,  

                                                                                                                                                                       

CORP. F          OR   NAT 'L   & C               OMMUNITY   SERV., https://www.nationalservice.gov/programs/   

americorps/join-americorps/americorps-faqs (last visited Jan. 9, 2018).                                                               



                                                                                       -4-                                                                               7226
  


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

She stated that OCS had provided calling cards so the children could call their parents                      



and had arranged family visits in the village where the children were in foster care.                                                                                                         



                              The court found that the children continued to be children in need of aid                                                                                      

                                                                                   11   Largely because of deficiencies in Dr. Warren's  

due to their parents' substance abuse.                                                                                                                                         



testimony, the court held that OCS had not proven by clear and convincing evidence that  

                                                                                                                                                                                            



the children were likely to suffer harm if returned to their parents' care. The court found  

                                                                                                                                                                                       



that OCS had not made active efforts to prevent the breakup of the family as required  

                                                                                                                                                                                 



under 25 U.S.C.  1912(d) because most of its efforts were "directed at enriching the  

                                                                                                                                                                                             



lives of the children."  The court therefore ordered Mary returned to her parents but  

                                                                                                                                                                                             

placed her under OCS supervision.12                                                      The court ordered the parents not to consume  

                                                                                                                                                               



alcohol, and it ordered OCS to arrange urinalysis testing to verify the parents' sobriety,  

                                                                                                                                                                                 



to assist them in obtaining new integrated assessments for both alcohol abuse and mental  

                                                                                                                                                                                     



health and in following the assessments' recommendations, and to assist the parents in  

                                                                                                                                                                                                



                                                                                       13  

removing mold from the family home.                                                         

                                                                          



                              The  court  monitored  the  family's  situation  by  holding  regular  status  

                                                                                                                                                                                      



hearings.  Between January 2015 and April 2016 the court held six hearings, five of  

                                                                                                                                                                                               



which were scheduled as status hearings and one as a "potential removal hearing,"  

                                                                                                                                                                              



although it was then treated as a status hearing.  During each hearing OCS caseworkers  

                                                                                                                                                                        



               11             AS 47.10.011(10) (substance abuse).                                  



               12             See AS 47.10.080(c)(2).  The court found that Claude was a child in need  

                                                                                                                                                                                          

of aid but ordered him released from OCS custody because he would be 18 in 10 days  

                                                                         

and was "unlikely to benefit from any additional contact with [OCS]."  

                                                                                                                                                                 



               13             At a later hearing in March 2015 the court expressed its continued concern  

                                                                                                                                                                                   

that the extensive mold could make the home unlivable, noted that mold remediation can  

                                                                                                                                                                                             

require special chemicals which might be difficult to obtain in the family's village, and  

                                                                                                                                                                                            

ordered OCS to provide the family the needed chemicals.  

                                                                                                                                    



                                                                                               -5-                                                                                       7226
  


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

provided updates about the efforts they had made to comply with the court's orders, the                                                                                                              



                                                                                                                                                 14  

parents' activities since the last hearing, and Mary's condition.                                                                                                                                     

                                                                                                                                                      Four of the hearings -  



                                                                                                                                                                                                 

on March 24, 2015; August 11, 2015; January 14, 2016; and February 18, 2016 - were  



                                                                                                                                                                                                

informal meetings at which no evidence was admitted. Instead, OCS provided the court  



                                                                                                                                                                                         

and parties with information relating to the status of counseling referrals, the parents'  



                                                                                                                                                                                               

alcohol testing, Mary's school attendance and behavioral issues in school, and the social  



                                                                                                                                                                                                   

workers' visits to the family's home.  At each hearing there were reports that Mary was  



                                                                                                                                                                                               

regularly  missing  school.                                        In  addition,  the  parties  discussed  scheduling  and  other  



                                                        

administrative matters.  



                                                                                                                                                                                               

                               At two of the status hearings OCS caseworkers testified under oath about  



                                                                                                                                                                                 

the family's progress. In September 2015 OCS moved for removal findings authorizing  



                                                                                                                                                                                 

it to take Mary into temporary OCS custody.  OCS called the then-assigned caseworker  



                                                                                                                                                                                                  

and a village police officer as witnesses after they had visited the family and found both  



                                                                                                                                                         

parents intoxicated at home.  OCS asked the court to qualify the local village's ICWA  



                                                                                                                                                                                        

worker, Daphne Joe, as an expert, but the parents objected that they had not received  



                                                                                                                                                                                                      

notice of the proposed expert or an expert report.  The court did not qualify her as an  



                                                                                                                                                                                                       

expert.  It also declined to make removal findings but noted it did not want Mary to  



                                                                                                                                                                                              

remain in her parents' home until the hearing could be held at a later date, and it asked  



                                                                                                                                                                                                   

the parties to come to an agreement allowing her to stay with relatives in the village. The  



                                                                                                                                             

court then set a "potential removal hearing" for November.  



                14              Over the course of the case three social workers were assigned to work with                                                                                       



the family. The first was assigned following the emergency removal in March 2014 until                                                                                                            

sometime in the summer of 2015.                                                       The second appeared at the August 2015 status                                                           

hearing and worked with the family through the status hearing in January 2016.                                                                                                                   The  

third appeared at the February 2016 status hearing and the removal hearing in April.                                                                                                                     



                                                                                                   -6-                                                                                          7226
  


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

                                The "potential removal hearing" was held in November 2015 as scheduled.                                                                                                         



Although the parties had agreed Mary would live with relatives, it was reported that she                                                                                                              



was living in her parents' home. The hearing had been continued because OCS planned                                                                                                        



to call Daphne Joe as an expert, but it did not and relied instead on Dr. Warren's prior                                                                                                          



testimony. The parents called Joe to testify that she had recently visited the family home,                                                                                                    



and she had found Mary and Catharine in the home with no sign of alcohol on the                                                                                                                       



                                                                                                                                                                                                          15  

premises.   OCS then moved to qualify Joe as an expert, but the court declined to do so.                                                                                                                        



The OCS worker testified that Mary was still not attending school regularly.  After the  

                                                                                                                                                                                                      



case worker's testimony OCS asked the court to authorize it to remove Mary from her  

                                                                                                                                                                                                      



parents' home.  The court again declined to remove Mary but again ordered the parents  

                                                                                                                                                                                            



not to drink and scheduled another status hearing.  

                                                                                                                        



                                At the next status hearing, in January 2016, no one was placed under oath.  

                                                                                                                                                                                                                



The same social worker and Mary provided updates to the court about Mary's attendance  

                                                                                                                                                                                     



and performance at school.  The court scheduled another status hearing for February.  

                                                                                                                                                                                                            



                                At the February 2016 hearing OCS renewed its request that the court allow  

                                                                                                                                                                                                 



it to place Mary in a foster home. No evidence was presented, but the parties agreed that  

                                                                                                                                                                                                     



the court should schedule a removal hearing.  

                                                                                                            



                                The court held a removal hearing in April 2016.  OCS called a number of  

                                                                                                                                                                                                         



witnesses  in  support  of  its  request  to  remove  Mary  from her  parents'  home.                                                                                                               The  

                                                                                                                                                                                                   



principal of Mary's school testified that Mary had an absentee rate of 75% and was  

                                                                                                                                                                                                    



failing all of her classes.  She testified that Mary's parents had never called the school  

                                                                                                                                                                     



about her absences.  The social worker who had recently assumed responsibility for the  

                                                                                                                                                                                                      



case testified that he had done nothing to address the mold in the home or to obtain an  

                                                                                                                                                                                                        



alcohol assessment for Diego.  He stated that he had attempted to talk to Mary about  

                                                                                                                                                                                                



                15  

                                                                                                                                                                                                            

                                The court noted that it would "take [her testimony] for what it's worth."  



                                                                                                   -7-                                                                                                    7226  


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

                                                                                                               

missing school but that she had refused to speak to him.  The village's administrator  



                                                                                                                            

testified that Diego and Catharine had not been attending the sobriety checks that OCS  



                                                                                                                           

had arranged with village police officers. However he noted that the village police office  



                                                                                                                            

was often empty as officers had to go into the village to assist with other matters.  



                                                                                                                               

                     OCS asked the court to find that removal was authorized based on the  



                                                                                                                               

parents' substance abuse, domestic violence, and neglect.   At the conclusion of the  



                                                                                                                        

hearing, the court noted that the parents' behavior had not changed and that Mary's  



                                                                                                                              

situation had deteriorated.  It found by clear and convincing evidence that Mary was  



                                                                                                                               

"being harmed by the lack of parental supervision, being harmed by the lack of what the  



                                                                                                                       

parents should do to foster a growing, healthy child." The court ordered Mary removed  



                                                                                                                                 

from her parents' home.  Catharine's attorney reminded the court that it was required to  



                                                                                                                            

make a finding regarding active efforts. After first finding that the parents had not made  



                                                                                                                     

active efforts, the court corrected itself and found that OCS had made the necessary  



                                                                                                                                

active efforts to prevent the breakup of the Indian family. The court based its finding on  



                                                                                                                                     

statements by OCS social workers during the January and February 2016 status hearings.  



                                                                      

Catharine's attorney objected to the findings.  



                                                                                                                              

                    Two days after the removal hearing the parents filed a joint motion to stay  



                                                                                                                            

the court's order.   The parents argued that the court had inappropriately relied upon  



                                                                                                                    

unsworn statements by OCS caseworkers to make its active efforts finding.  The court  



                                                                                                                             

denied their motion to stay and issued a supplemental order stating that it had also  



                                                                                                                              

considered testimony from the status hearings in September and November 2015.  The  



             

parents appeal.  



                                                                                                                    

                    We remanded this case to the superior court in June 2017 for additional  



                                                                                                                                

findings regarding its removal order.  Following remand the superior court issued an  



                                                                                                                                

order clarifying that in making its removal findings it had "[taken] into account all  



                                                                                                                           

previous  hearings  that  occurred,"  including  unsworn  statements  made  by  OCS  



                                                               -8-                                                         7226
  


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

social workers during status hearings.                    



III.          STANDARD OF REVIEW                    



                                                                                                                                                    16  

                           "We review a superior court's findings of fact for clear error."                                                                      

                                                                                                                                                        We review  



                                                                                                                                                                       

"de novo whether a superior court's findings satisfy the requirements of the CINA and  



                                                     17  

                                        

ICWA statutes and rules." 



 IV.         DISCUSSION  



                                                                                                                                                                 

                           The parents argue that the trial court failed to make the required ICWA  



                                                                                                                                                                  

findings necessary to removetheir daughter fromtheir home. Before removing an Indian  



                                                                                                                                                            

child from the child's parents the court "shall inquire into and determine . . . whether  



                                                                                                                                                            

active efforts have been made to provide remedial services and rehabilitative programs  



                                                                            18 

                                                                                                                                    

as required by 25 U.S.C.  1912(d)."                                             The court cannot enter a disposition order if it  



                                                                                                                                             19  

                                                                                                                                     

finds that the requirements of 25 U.S.C.  1912(d) have not been met. 



                           The trial court's order following remand affirmed that it took into account  

                                                                                                                                                               



all prior hearings in reaching its decision to authorize Mary's removal, including status  

                                                                                                                                                                   



hearings at which only unsworn statements were presented. The parents argue that it was  

                                                                                                                                                                       



reversible  error  for  the  trial  court  to  consider  unsworn  statements  in  making  its  

                                                                                                                                                                         



determination because CINA Rule 3(h) states "testimony must be given under oath or  

                                                                                                                                                                          



              16           Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                       



Servs., 249 P.3d 264, 269 (Alaska 2011) (quoting                                                      Dale H. v. State, Dep't of Health &                                  

Soc. Servs., Office of Children's Servs.                                      , 235 P.3d 203, 209 (Alaska 2010)).                        



              17           Id . at 270 (quoting Dale H., 235 P.3d at 210).  

                                                                                                             



              18           CINA  Rule  10.1(b)(1).  "Active  efforts  must  be  proven  by  clear  and  

                                                                                                                                                                      

convincing evidence." Christina J. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                          

Children's Servs., 254 P.3d 1095, 1108 (Alaska 2011).  

                                                                                                   



              19           CINA Rule 10.1(b)(2).  

                                                    



                                                                                    -9-                                                                             7226
  


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

                                                                                                  20  

affirmation as required by Evidence Rule 603."                                                         Alaska Evidence Rule 603 requires                         



that "[b]efore testifying, every witness shall be required to declare that the witness will                                                                               



testify truthfully, by oath or affirmation administered in a form calculated to awaken the                                                                                  

                                                                                                                                                    21  The parents  

witness' conscience and impress the witness' mind with the duty to do so."                                                                                         



argue that because the OCS workers did not take an oath before updating the court at  

                                                                                                                                                                              



various status hearings, their unsworn statements are not evidence, and cannot support  

                                                                                                                                                                  



the court's order authorizing removal.  

                                                                                



                              Black's Law  Dictionary  defines "evidence" in relevant part as "[t]he  

                                                                                                                                                                     



collective mass of things, esp[ecially] testimony and exhibits, presented before a tribunal  

                                                                                                                                                                 

in a given dispute."22                       To become evidence, that is, part of the collective mass of things  

                                                                                                                                                                     



for atribunal's consideration, theinformation must be proffered and admitted as required  

                                                                                                                                                                 

                                                       23    The Alaska Rules of Evidence establish the requirements  

by the rules of the tribunal.                                                                                                                          

                                       

for the "things" that can be considered by a superior court.24  The OCS workers' unsworn  

                                                                                                                                                                



              20            CINA  Rule  3(h).  



              21            Alaska  R.  Evid.  603.  



              22            Evidence,  BLACK 'S  LAW  DICTIONARY  (10th  ed.  2014).  



              23            See  Alaska  R.  Evid.  103  (outlining  considerations  for  rulings  on  evidence).   



Proffered   evidence  is   "[e]vidence  that  is  offered  to  the   court  to   obtain   a  ruling   on  its  

admissibility."     Proffered   evidence,   BLACK 'S  LAW  DICTIONARY   (10th  ed.  2014).  

                                                                                                                                                                                   

Admissible evidence is "[e]vidence that is relevant and is of such a character (e.g., not  

                                                                                                                                                                           

unfairly prejudicial, based on hearsay, or privileged) that the court should receive it."  

                                                                                                                                                                           

Admissible Evidence, BLACK 'S LAW DICTIONARY (10th ed. 2014).  

                                              

                                                                                                                            



              24            Alaska R. Evid. 101.  

                                                              



                                                                                     -10-                                                                              7226
  


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

statements were not presented to the trial court as required by the Alaska Rules of                                                                    

Evidence.25  



                        Our evidence rules were promulgated to promote efficiency and fairness  

                                                                                                                                             



in the administration of justice, to ensure just proceedings, and to safeguard our judicial  

                                                                                                                                              

system and the rule of law on which it depends.26  Preserving the rule of law requires that  

                                                                                                                                                     



courts take actions based on the evidence before them, and to that end, the rules of  

                                                                                                                                                       



evidence and procedure limit the form of information that may be introduced in court  

                                                                                                                                                  

proceedings.27                 Some  information,  such  as  hearsay  or  unnecessarily  prejudicial  

                                                                                                                                       



information, may therefore be excluded from the court's consideration to preserve the  

                                                                                                                                                      

integrity of and promote public confidence in our judicial system.28  

                                                                                                         



                        In cases involving issues of such fundamental importance as parents' rights  

                                                                                                                                                 



to raise their children, it is imperative that the legal system act with great care to protect  

                                                                                                                                               



            25          See  Alaska R. Evid. 603.            



            26  

                                                                                                                                              

                        See Alaska R. Evid. 102 ("These rules shall be construed to secure fairness  

in administration . . . and promotion of growth and development of the law of evidence                                                     

                                                                                                                  

to the end that truth may be ascertained and proceedings justly determined.").  



            27          Cf. Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 573-74 (Alaska 2015)  

                                                                                                                                                 

("The superior court had a duty to ensure that the trial was fair to [both parties].  The  

                                                                                                                                                    

court took reasonable action to control the proceedings and prevent . . . introducing  

                                                                                                                                    

irrelevant facts and prejudicial arguments . . . . The court did not abuse its discretion by  

                                                                                                                                                       

limiting . . . statements to the relevant evidence.");  Vachon v. Pugliese, 931 P.2d 371,  

                                                                                                                                                   

381 (Alaska 1996) (affirming superior court which made sua sponte evidentiary rulings  

                                                                                                                                               

to exclude inadmissible evidence); see also  Alaska R. Evid. 611(a) (requiring court  

                                                                                                                                                 

control presentation of evidence).  

                                           



            28          See  Alaska  R.  Evid.  102,  403,  802.                                  But  see  CINA  Rule  10(b)(3)  

                                                                                                                                           

(permitting use of hearsay under certain circumstances in temporary custody hearing);  

                                                                                                                                           

 17(e) (permitting same in disposition hearing); 18(f) (permitting more limited use of  

                                                                                                                                                       

hearsay under certain circumstances at trial to terminate parental rights).  

                                                                                                                     



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                                29  

parties'   rights.                     Adherence   to   our   legal   system's   foundational   principles   and   the  



safeguards put in place to ensure fair treatment of litigants must therefore be strict in such                                                                                



cases.  



                            It is true, however, that CINA cases differ in many important ways from                                       



other civil cases.    Because the focus in CINA cases is to prevent the breakup of the                                                                                          

               30 many CINA cases proceed in ways that differ noticeably from the customary  

family,                                                                                                                                                   



adversarial   approach   to   litigation.                                              CINA   cases   require   ongoing   effort   and  

                                                                                                                                                                             



communication between parents, attorneys, social workers, guardians ad litem, various  

                                                                                                                                                                        



treatment and other professionals, and the court.  In light of this reality, courts often  

                                                                                                                                                                            



schedule hearings to receive periodic updates on progress being made and its effect upon  

                                                                                                                                                                             



future court proceedings. These hearings are appropriate to provide such administrative  

                                                                                                                                                         



and scheduling information in a relatively informal manner.  

                                                                                                              



                            However, when the focus of such a hearing shifts to matters requiring the  

                                                                                                                                                                                 



court to makespecificfactual findings and legal conclusions -such as whether probable  

                                                                                                                                                                     



cause exists to award temporary custody of a child to OCS, whether reasonable or active  

                                                                                                                                                                           



              29            See   Santosky   v.   Kramer,  455  U.S.   745,   753-54   (1982)   ("If   anything,  



persons faced with forced dissolution of their parental rights have a more critical need   

for procedural protections . . . .");                                 Debra P. v. Laurence S.                           , 309 P.3d 1258, 1261 (Alaska                  

2013) (holding making final custody determination without sufficient notice violated                                                                                  

mother's due process rights).                  



              30            Alaska's CINA statutes authorize state intervention in a family with the  

                                                                                                                                                                                 

goal of "promot[ing] the child's welfare and the parents' participation in the upbringing  

                                                                                                                                                                

of   the   child   to   the   fullest   extent   consistent   with   the   child's   best   interests."  

                                                                                                                                                                                         

AS 47.10.005(1).  Congress passed ICWA to address the "alarmingly high percentage  

                                                                                                                                                                

of Indian families . . . broken up by the removal, often unwarranted, of their children"  

                                                                                                                                                         

and "to promote the stability and security of Indian tribes and families." 25 U.S.C.   

                                                                                                                                                                                  

 1901-1902 (2012). ICWA therefore requires proof that active efforts were made to  

                                                                                                                                                                                   

prevent the breakup of the family before an Indian child may be removed fromher home.  

                                                                                                                                                                           

 1912(d).  

     



                                                                                       -12-                                                                                  7226
  


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

efforts were made, or any of the other specific findings required by state and federal                                                                              



law - then the court's decision must be based only upon evidence admitted pursuant to                                                                                          



legal rules.              The Alaska Rules of Evidence regulate the admissibility of evidence in                                                                              



Alaska courts.                  They govern all CINA proceedings, unless otherwise specified in the                                                                   

                           31    In this case the court relied on information it received at a number of  

CINA Rules.                                                                                                                                                                   



hearings at which no evidence was admitted.  This was error.  

                                                                                                                   



                            OCS argues that the parents failed to preserve this issue because they did  

                                                                                                                                                                            



not object at each hearing at which unsworn statements were made to the court and  

                                                                                                                                                                           

parties.32   But the parents were not aware until after the court had already relied upon the  

                                                                                                                                                                             



unsworn statements that the court would make a decision without evidence to support  

                                                                                                                                                                   



it. The parents did not need to object to unsworn statements made during status hearings  

                                                                                                                                                                 



to  preserve their  right to  later  challenge the improper  use  of  those statements in  a  

                                                                                                                                                                                



removal decision.  

                   



                           Furthermore the parents did attempt to object. Both parents objected when  

                                                                                                                                                                        



OCS introduced expert testimony with insufficient notice during a status hearing.  The  

                                                                                                                                                                          



court declined to address Diego's objection to the presentation of hearsay because the  

                                                                                                                                                                            



court stated it could rely on the statements "to decide . . . basically what kind of hearing  

                                                                                                                                                                   



to have."  When Diego asked that OCS's witness be sworn for questioning during the  

                                                                                                                                                                            



same hearing the court stated, "I don't think we need to swear anyone in.  This is just a  

                                                                                                                                                                                



status hearing."  The court later specifically relied on statements from the hearing to  

                                                                                                                                                                              



make its active efforts finding.   And both parents' attorneys objected to the court's  

                                                                                                                                                                    



reliance on those statements at the removal hearing.  

                                                                                                             



              31            CINA Rule 9(a).          



              32  

                                                                                                                                                                       

                            The requirement that a party preserve an objection to challenge the effect  

                                                                                                                                                                            

of an erroneous ruling comes from the Alaska Rules of Evidence, which assumes the  

                                                                                                                                                                                 

opposing party is offering evidence the party can object to.  See Alaska R. Evid. 103.  



                                                                                     -13-                                                                               7226
  


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

                                                                                                                                                    33  

                       OCS points out that some unsworn reports are required by court rules.                                                             



Those reports, however, differ from unsworn statements made in status hearings.  The  



                                                                                                                                                  

CINA Rules require that OCS provide the reports to the other parties in advance of the  



                                                                                                                                                    

hearings to which the reports relate, providing the parties an opportunity to respond to  

                                   34   Such notice is essential to due process, which requires that the  

                                                                                                                                                  

or rebut the reports. 

parents have adequate notice and opportunity to address the reports before the court.35  

                                                                                                                                                         



In contrast, when OCS offered unsworn statements to support its request for removal  

                                                                                                                                         



findings, the court did not provide the parents with the notice and opportunity required  

                                                                                                                                         



by due process. Instead it told the parents that they could not object because the hearing  

                                                                                                                                          



was "just a status hearing."  

                                                 



                       No evidence was admitted at four status hearings in this case, those held in  

                                                                                                                                                    



March 2015, August 2015, January 2016, and February 2016.  Because these hearings  

                                                                                                                                        



provided no evidence to the court to support its decision authorizing Mary's removal  

                                                                                                                                         



from her parents' home, it was error to rely upon information from them to grant OCS's  

                                                                                                                                            



request to remove Mary.  

                                 



                       Because  the  court  committed  legal  error  by  relying  upon  substantial  

                                                                                                                                                         



information  not  in  evidence  to  support  its  removal  findings,  we  vacate  the court's  

                                                                                                                                          



removal order, and remand for the court to immediately schedule a new removal hearing.  

                                                                                                                                          



            33         See  CINARule16(a)(1)-(3)(requiringOCStosubmitpredisposition                                                         report  



in   advance   of   disposition   hearing);   CINA   Rule   17.2(c)   (requiring   OCS   to   submit  

permanency report in advance of permanency hearing).                              



            34         CINA Rule 17.2(c); CINA Rule 19(b).  

                                                                                 



            35         See CINA Rule 17.2(c); CINA Rule 19(b); Debra P. v. Laurence S., 309  

                                                                                                    

P.3d 1258, 1261 (Alaska 2013) ("Procedural due process under the Alaska Constitution  

                                                                                                                                  

requires  notice  and  opportunity  for  hearing  appropriate  to  the  nature  of  the  case."  

                                                                                                                                            

(quoting Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998))).  

                                                                                                             



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

At   the   hearing,   the   court   is  to  consider   evidence   regarding   the   family's   current  



circumstances to determine whether removal from the parents' home is appropriate at                                                                               



this time.   



V.           CONCLUSION  



                          We VACATE the trial court's removal order authorizing Mary's removal  

                                                                                                                                                      



from her parents' home.   We REMAND this case to the superior court for further  

                                                                                                                                                        



proceedings consistent with this order.  

                                                               



                                                                               -15-                                                                         7226
  

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