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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  



                     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




                              Appellee.                          )  



                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                    Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  



                    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  



                    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.  




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


                                                                                                                                         who is an  



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                                                         


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  



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  



                                                                            -3-                                                                     7226

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

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


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  



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.,   

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  



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                                                                                                              


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                                                                                                                       


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  




                                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                    


                           "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  



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  



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



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

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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                                                                    


                        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.            



                        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).  


                                                                          -11-                                                                    7226

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


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                                                                                


                            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  


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.  




                                                                                       -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).          



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


                       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))).  


                                                                        -14-                                                                  7226

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