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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sarah A. v. State, Dept. of Health & Social Services, Office of Children's Services (9/28/2018) sp-7305

Sarah A. v. State, Dept. of Health & Social Services, Office of Children's Services (9/28/2018) sp-7305

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



SARAH A.,                                                  )  

                                                           )   Supreme Court No. S-16880  

                           Appellant,                      )  

                                                           )   Superior Court No. 3HO-15-00021 CN  

         v.                                                )  

                                                           )   O P I N I O N  

STATE OF ALASKA, DEPARTMENT                                )

OF HEALTH & SOCIAL SERVICES,                               )   No. 7305 - September 28, 2018

OFFICE OF CHILDREN'S SERVICES,                             )


                           Appellee.                       )  


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


                  Judicial District, Homer, Charles T. Huguelet, Judge.  

                  Appearances:  Renee McFarland, Assistant Public Defender  


                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                  Appellant.  Mary Ann Lundquist, Senior Assistant Attorney  


                  General, Fairbanks, and Jahna Lindemuth, Attorney General,  


                  Juneau, for Appellee.  

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

                  and Carney, Justices.  

                  WINFREE, Justice.  


                  A mother appeals the termination of her parental rights to her son.  The  

mother challenges none of the superior court's factual findings; she rather alleges that  


the court violated her due process rights during the termination trial by:  (1) prejudging  


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


the case; (2) improperly assuming the role of a prosecutor while examining witnesses;  

and (3) relying on research and evidence outside the record to impeach witnesses and  


disregard testimony favorable to her.  Asserting that the court's actions deprived her of  

the right to an impartial decision-maker and amounted to structural error, she seeks  


reversal and remand before a different judge.  Although we agree that the court took  


inappropriate action with respect to witness testimony and other evidence regarding one  


issue at the trial, we conclude that this does not amount to structural error and that it does  


not otherwise undercut the unrelated findings supporting the termination of the mother's  

parental rights.  We therefore affirm the superior court's decision.  



                        Sarah A. and Johnny P. are the parents of Moe, who was eight years old at  


                                                  Sarah  and  Johnny  were  married  and  continued  to  reside  

the  time  of  his  removal.                                                                                                              

together at the time of trial.  The couple has struggled with domestic violence, mental  


illness, and severe substance abuse issues, including the use of methamphetamines and  


opioids.  The Office of Children's Services (OCS) first became involved with the family  


after it began receiving reports in late 2014 that Moe repeatedly arrived at school with  


unexplained injuries.  In August 2015 Sarah and Johnny both were arrested on assault  


charges  after  a  domestic  violence  incident  in  the  home,  prompting  OCS  to  file  an  


                                                                                                                                                   It  is  

emergency  petition  for  temporary  custody  of  Moe  as  a  child  in  need  of  aid. 

unnecessary at this point to describe the next year of OCS's interaction with the family.  

                        OCS  petitioned  to  terminate  Sarah's  and  Johnny's  parental  rights  in  


September  2016,  alleging  Moe  was  a  child  in  need  of  aid  under  AS  47.10.011  

            1           We use pseudonyms to protect the parties' privacy.  

            2           See  AS 47.10.011 (enumerating instances where "court may find a child to         

be a child in need of aid"); CINA Rule 6(b) (providing procedural structure for petitions         

for emergency custody with court order for child in need of aid).  

                                                                          -2-                                                                    7305

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

(1)  (abandonment),  (8)  (mental  injury),  (9)  (neglect),  and  (10)  (parental  substance  


abuse).   OCS alleged that the parents' struggles with substance abuse, mental illness,     

and domestic violence were ongoing and that "the parents have triangulated providers  


. . . with different information," making it "extremely difficult to assess for progress and  

elimination of safety threats."   

                    The termination trial took place over the course of three days.  After two  

days of trial in May 2017, the trial was continued to July.  

          May 2017 Trial Proceedings  

                    Because Sarah contends on appeal that the superior court prejudged the case  

after the first two days, we detail the relevant testimony and exchanges.  

                    Kathryn  Carsow,  Sarah's  psychotherapist,  testified  that  Sarah  attended  

therapy inconsistently.  Given discrepancies between Sarah's reports and information  


from OCS, Carsow felt Sarah often was not honest about her substance use.  Carsow  


stated that Sarah was open to intensive outpatient treatment, but less so to residential  

treatment.  Carsow also reported that she and Sarah "made no progress" in addressing  

domestic   violence   issues,   describing   an   incident   in   which   Johnny,   during   a  


methamphetamine  withdrawal,  threw  furniture  and  nearly  strangled  Sarah  with  an  


electrical cord.  Carsow also reported that Sarah misused taxi vouchers by requesting a  


voucher for an appointment, then not attending the appointment or not actually having  

an  appointment,  or  requesting  a  voucher  when  she  already  had  one  from  another  



                    OCS caseworker Jocelyn Maneval characterized the parents' "deception"  


as "a global concern"; she testified that the parents were "not being forthright" and were  

          3         See AS 47.10.080(c)(3) (authorizing termination of parental rights to child  

in need of aid upon satisfaction of statutory conditions).  

                                                              -3-                                                            7305  

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

unwilling "to really commit to engaging in the services that were being offered and  

provided."  Maneval reported that the parents "essentially faked" their urinalysis (UA)  

tests and that OCS had difficulty getting them to attend meetings or engage in substance  


abuse assessments.  According to Maneval, Sarah missed drug tests and under-reported  

her substance abuse history, denying use even when she tested positive.  


                    Maneval also observed "denial about [domestic violence] being a concern  


in the relationship."  She listed ongoing domestic violence reports after OCS became  


involved:   following a November 2015 meeting with OCS, Sarah and Johnny had a  

physical altercation, and the next day he showed up to group therapy alone, with visible  


injuries on his face; and in February 2016 Johnny choked Sarah with an electrical cord  


and banged her head against the floor.  Maneval remarked upon the extent of the parents'  


denial:  "[I]t was as if unless the police were called, [domestic violence] didn't occur."  


                    OCS protective services specialist Alicia Kupczyk-Gregory testified about  


numerous times Sarah deceived OCS or service providers, remarking on her lack of  


honesty and noting "there appears to be a pattern of the parents putting a lot of effort into  


making things seem like they're okay when they are not."  When managing Sarah's UA  

testing, Kupczyk-Gregory observed suspicious behavior causing her concern that Sarah's  


UA tests were faked.  In November 2016 Sarah refused to complete a UA test for OCS,  


claiming  she  was  doing  one  later  that  day  for  a  treating  physician.    Sarah  misled  

Kupczyk-Gregory to believe her UA tests with other providers were observed when they  

were not.  

                    Kupczyk-Gregory  testified  that  Sarah  said  she  had  been  accepted  to  


residential treatment and wanted to see Moe before she departed, so OCS facilitated an  

"off-the-books" visit; she did not enter any treatment, and OCS later received a denial  

letter from the residential program.  Kupczyk-Gregory  noted that Sarah took "a very  


long time" to complete the process for entering residential treatment.  In February 2017  

                                                              -4-                                                        7305

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

Sarah misled an assessor, stating that she was receiving counseling services even though       

she had terminated her sessions with Carsow.  

                    The superior court interjected during Kupczyk-Gregory's testimony, asking  


why the termination petition was filed less than a year into the case and remarking that  


it was "really unusual." Kupczyk-Gregory responded that Moe needed permanency and  

that the parents were not engaging with services.   

                    Dr. Sarah Spencer, Sarah's treating physician, testified that Sarah had made  

significant progress since June 2016, when "she was taking benzodiazepines . . . and  


using  heroin  and  methamphetamines."    Dr.  Spencer  saw  a  "huge  turnaround"  in  

September 2016, and she noted that "the only [positive substance test] in the last six  


months other than her prescription medications was THC."  Dr. Spencer explained that,  

because polysubstance abuse is common, her program does not require participants to  


abstain from marijuana; rather, the focus is treating opioid use while "working towards  


abstinence from all intoxicating substances."  Dr. Spencer also testified she learned from  


OCS that Sarah had tested positive for methamphetamine at the end of April 2017 and  

that she had missed her UA appointment three weeks before the termination trial.  


                    The  superior  court  asked  Dr.  Spencer  about  her  marijuana  policy,  


remarking that documents showed Sarah "had been using it daily for more than 25 years.  


And you're not addressing that at all?"  Dr. Spencer responded that she encourages her  

patients  to  reduce  use  and  gradually  become  abstinent.    The  court  also  requested  

clarification about whether Dr. Spencer was treating Sarah for alcohol, cannabis, or  


domestic violence, to which Dr. Spencer responded: "We monitor all substance use, but  

we're not specifically treating for anything other than opioids."  

                    At the end of the first two days of trial, the superior court summarized its  


"impression so far" that both parents had a pattern of evading UA tests, and the court  


requested to see at the next hearing "a list of all UA's chronological, the results, and  

                                                               -5-                                                         7305

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

those that were scheduled and missed."  The court observed that Sarah in particular  


tended  to  "evade  and  obfuscate  and  dodge,"  exhibiting  a  pattern  of  "looking  for  

something that's easier than what is prescribed."   


                    The superior court made it clear to both Sarah and OCS that she needed to  


do another intake and get mental health services, remarking:  "If you're asking me to turn  


a child over to someone with that kind of Axis I diagnosis and no treatment, you know,  

that ain't going to happen."  The court urged an end to Sarah's "therapist-shopping,  

doctor-shopping, program-shopping" and noted:  "It usually doesn't take with people  


who are motivated . . . a year to get to . . . residential treatment."  Acknowledging that  

manipulation and dishonesty about use are often part of addiction, the court indicated  


that while it awaited Sarah's testimony at the next hearing, she needed to begin treatment  


in earnest, "regardless of what happens."  The court also emphasized that Sarah's drug  


test needed to show up clean for both marijuana and methamphetamine:  "[M]arijuana  


is not clean and sober especially when someone has a severe disorder, especially when  

someone says they've been using it everyday starting in the morning since age 15."    


                    The superior court also had strong words for OCS, remarking:  "I don't  


know that I've ever seen a petition filed this quickly . . . . [U]sually we try a little bit  


longer to fix people before we give up, and I'm not certain that I know the exact reasons  


for that from the testimony I've heard."  OCS later asked if the court's impression was  

that "OCS gave up," to which the court responded:  "I understand that you haven't  


stopped providing services . . . . [Y]ou didn't say stay out of my office, go away, but they  

filed the petition quicker than I've seen in any Homer case anyway."  

                                                               -6-                                                         7305

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

          July 2017 Trial Proceedings  

                    Sarah  also  claims  on  appeal  that  on  the  final  day  of  trial,  during  the  


testimony of Dr. Spencer and an OCS case manager, the superior court assumed the role  


of a prosecutor and improperly relied on personal experience and evidence outside the  


record.  Each exchange is set forth below.  

                    Dr. Spencer  

                    Dr. Spencer testified that, in the previous month, Sarah's marijuana use was  

more  regular  and  that  she  was  using  it  at  consistent  times  for  pain  management.  


Dr. Spencer stated there were no signs Sarah was misusing marijuana and noted there  


were few other non-narcotic pain management alternatives available to an opioid addict  


of limited means.  The superior court interjected to ask Dr. Spencer about Suboxone's  


effects when mixed with marijuana.  The court stated:  "I just did a quick search about  


marijuana and Suboxone . . . . and it seems to be quite controversial."  


                    Dr. Spencer responded that there is evidence marijuana use is associated  

with positive outcomes for patients being treated for opioid use disorders and that studies  

contradicting that view are inconsistent.  The court interrupted Dr. Spencer, stating:  


                    Yeah.  I was just concerned in this case, because I've got a  


                    document in front of me . . . that diagnosed [Sarah] as having  


                    an opioid disorder that was severe and that she - was using  


                    - I mean not opioid, marijuana, cannabis - disorder, severe;  


                    and she's using it twice a day, marijuana gets you high, and  


                    she's got a doctor that's telling her that it's okay.  So, if she  


                    has a severe cannabis disorder, should she be using cannabis?  


                    Dr. Spencer could not say whether she agreed with the severe cannabis use  


disorder diagnosis without first reviewing the records. Dr. Spencer noted her credentials  


and said that Sarah's marijuana use had not "been causing a problem for her" in their  

interactions.  The court then asked:  "So, what is causing a problem from taking an  

intoxicating substance?"  Dr. Spencer explained:  

                                                               -7-                                                         7305

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

                    [T]he substance has to cause a significant impact on  your  


                    quality of life in order to have it be diagnosed with substance  

                    use disorder.  It doesn't - it has very little to do actually with  


                    the frequency of use . . . .  It has to do with how the substance  


                    is affecting your function and your quality of life.  

The court responded:  "The child's removed.  That's how it's affecting."    

                    Dr. Spencer disputed that reasoning, stating she thought it more likely that  


the  "severe  dysfunction"  and  "impairment  was  -  in  the  past  was  due  to  the  use  of  


methamphetamines and opioids."  The court responded:  

                    Okay.  I've just been doing the CINA  business for a long  


                    time and dealing with substance abuse in the courts for more  


                    than 30 years and with children, when they're removed and  

                    OCS  says  you  got  to  stop  using  substances  -  and  you  

                    continue to use substances, I've never seen a child reunited  


                    with their parents.  And I'm a little concerned here because  


                    I've  got  a  medical  practitioner  that's  recommending  to  

                    continue to use substances, and when I've got the treatment  


                    people on the other end . . . saying no and OCS saying no.  


                    So, this is very troubling for me.   

                    The court questioned Dr. Spencer about Sarah's pain:  "Well, what pain  


does she have that she needs to smoke marijuana twice a day?"  Dr. Spencer explained  

that Sarah had chronic back pain, congenital foot deformities, and fibromyalgia and  

listed her medications.  The court responded:   "[F]or future reference if you've got  


someone that has an OCS case and they're using marijuana, they're probably not going  


to get their kids back."  Dr. Spencer noted the lack of communication between herself,  


OCS, and other providers, prompting the court to say:  "I want to reunite parents and  

their children and I don't like to see things get in the way."  Dr. Spencer responded:  

"[M]y job is to take care of patients in . . . the way I think is medically most appropriate  


for that patient."   

                                                              -8-                                                        7305

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

                   Cross-examination of Jocelyn Maneval  

                   Sarah's  attorney  elicited  cross-examination  testimony  from  OCS  case  

manager  Jocelyn  Maneval  that  Sarah's  THC  levels  had  decreased  over  time.    The  

superior court interjected, stating:  "Well, let me stop you there.  I'm - practically have  


a master's degree in drug testing from military.  Those numbers - if someone smokes  

marijuana and has a test the next day, this can - be really, really high."  

                   The court again interrupted the cross-examination, reiterating:  "The experts  

will tell you the pattern is meaningless."  Sarah's attorney continued asking Maneval  


about the pattern, but the court continued interjecting, referring to what the court had  


learned from expert testimony in a separate marijuana driving under the influence case:  


"[E]ven the active THC in the blood, the amount of it, doesn't really tell you anything.  

In Washington they have a presumptive . . . like a five is automatically drunk but the  

expert from Washington said it doesn't mean anything."  


                   At the end of cross-examining Maneval, Sarah's attorney objected, stating:  

"I don't know if you're taking judicial notice or what but . . . . without having any  


information  about  the  information  you're  relying  on  .  .  .  we're  not  able  to  cross- 

examine."  The court  responded:  "I don't have any information about what you're  

relying on either.  You're  relying on scientific evidence, and you're bringing it out  


through a social worker."  The court then stated:  "[Y]ou didn't bring an expert so I'm  


not relying on your testimony here to show - because that . . . requires expert testimony.  

And I think if you had an expert, you would not get what you wanted out of it."  

                                                           -9-                                                     7305

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

         Order Terminating Parental Rights4  

                   The superior court terminated Sarah's and Johnny's parental rights.  The  


court  found  that  Moe  "has  experienced  severe  mental  and  emotional  trauma  from  


exposure to domestic violence in his parents' home." The court detailed the injuries Moe  


suffered while in his parents' care, including frequent unexplained physical injuries, poor  


school performance due to regular absences, and mental injuries, such as symptoms of  

generalized anxiety disorder, severe emotional disturbance, and post-traumatic stress  

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

parental rights may be terminated at trial only if OCS shows, under Rule 18(c):   

                   (1) by clear and convincing evidence that  

                            (A)   the   child   has   been   subjected   to   conduct   or  

                            conditions described in AS 47.10.011 and  

                                     (i) the parent has not remedied the conduct or  

                                     conditions in the home that place the child at  

                                     substantial risk of harm; or  

                                     (ii)  the  parent has failed, within a reasonable  


                                     time, to remedy the conduct or conditions in the  


                                     home that place the child in substantial risk so  

                                     that  returning  the  child  to  the  parent  would  

                                     place the child at substantial risk of physical or  


                                     mental injury;  

                            . . . .  

                   (2) by clear and convincing evidence that  

                            (A) the Department has complied with the provisions  

                            of AS 47.10.086 concerning reasonable efforts . . .  

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


                   parental rights is in the best interests of the child.  

CINA Rule 18; see also AS 47.10.080.  

                                                          -10-                                                    7305

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


disorder.  The court found the evidence indicated that Moe had significantly improved  

since living with his grandmother, but he still required therapy.  


                      The  superior  court  found  that  Moe  was  subjected  to  the  conduct  and  

conditions described in AS 47.10.011 (8) (mental injury from domestic violence), (10)  



(parental substance abuse), and (11) (parental mental illness);  that his parents had not 

remedied the conduct or conditions within a reasonable time; and that returning him to  


the home would place him at substantial risk of physical or mental injury.  The court  


found that Moe already had suffered serious mental injury as a consequence of chronic  

domestic violence in the home.  The court noted that domestic violence led to Moe's  


removal and that he was "still receiving mental health treatment and has not recovered  


from injuries caused by his parents." Because the parents had yet to complete a case plan  


addressing their regular and ongoing domestic violence, the court concluded Moe would  

continue to suffer if reunified with his parents.  

                      The superior court observed that neither parent had completed case plan  

requirements with respect to mental health treatment, despite severe diagnoses "that  


contributed  to  the  conduct  that  injured  [Moe]."    The  court  recognized,  but  found  


insufficient, that Sarah was taking medication for her bipolar disorder at the time of trial.  

The  parents'  perceived  unwillingness  to  address  mental  illnesses  "that  caused  or  

contributed to the substance abuse disorders and chronic domestic violence" further  

weighed against reunification.   


                      The  superior  court  also  found  that  both  Sarah's  and  Johnny's  serious  

substance  abuse  disorders  "substantially  impair  their  ability  to  parent."    The  court  

questioned the parents' dedication to sobriety for Moe's sake, observing that neither  

           5          We note that the petition to terminate parental rights did not list the parents'   

mental illness as a ground for finding Moe a child in need of aid, but Sarah does not raise         

this issue on appeal.   We therefore do not address the discrepancy.   


                                                                    -11-                                                              7305

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

parent participated in UA testing or residential treatment and that both "frequently lied  


about the extent of their abuse."  Both parents continued to use marijuana, and the court  


found  Suboxone  treatment  was  ineffective  in  treating  either  their  marijuana  use  or  


methamphetamine addiction, noting that Sarah was "engaged in a Suboxone program at  


the time [Moe] was removed, and it did not appear to have any positive effect on her  

ability to parent."  

                    Throughout its discussion, the superior court referenced Sarah's dishonesty  

and unwillingness to engage in treatment.  In discussing whether OCS made reasonable   

efforts and whether those efforts had been successful, the court observed:  

                     [Sarah]  has  better  contact  with  OCS  [than  Johnny],  but  

                    engaged  in  a  pattern  of  outright  dishonesty,  minimizing  


                    problems, and using rationalizations and excuses to avoid the  


                    hard  work  it  would  take  for  her  to  recover.                           She  was  


                    receiving   medications   for   mental   health   problems   and  

                    substance abuse when [Moe] was removed.  Nothing changed  

                    after removal except that she is seeing a different doctor.  

In the order's conclusion, the court expressed similar sentiments:  


                     [Sarah] engaged in a pattern of manipulation so she did not  

                    have  to  embrace  sobriety  (Suboxone  and  marijuana  v.  

                    inpatient  treatment  and  abstinence)  or  endure  discussions  

                    about her distorted thinking patterns (taking medication, but  


                    dropping out of therapy) that caused or contributed to the  

                    domestic violence that seriously injured her son.  

The court found it was in Moe's best interests to live with his grandmother, where he had  


the "best chance for recovery from the serious mental injuries caused by his parents" and  


would not be exposed to "unstable adults" who are "intoxicated and engaged in domestic  


                     Sarah appeals.  

                                                               -12-                                                         7305

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


                       "Whether  a  parent's  due  process  rights  were  violated  in  a  termination  


                                                                                                adopting "the rule of law that  

proceeding is a question of law that we review de novo," 


is most persuasive in light of precedent, reason, and policy."    



                       The Alaska Constitution states that "[n]o person shall be deprived of life,  



liberty, or property, without due process of law."   "The crux of due process is [having  

                                                                                                                                         9  "A  

the] opportunity to be heard and the right to adequately represent one's interests." 

valid  constitutional  challenge  based  on  due  process  requires  'state  action  and  the  

deprivation of an individual interest of sufficient importance to warrant constitutional  


protection.' "             

                       "Due process under the Alaska Constitution is 'flexible, and the concept  


should be applied in a manner which is appropriate in the terms of the nature of the  



proceeding.' "               To determine what process is due, we consider the following three  

factors enunciated by the United States Supreme Court in Mathews v. Eldridge :  

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

Servs., 165 P.3d 605, 614 (Alaska 2007) (citing Jeff A.C., Jr. v. State , 117 P.3d 697, 702  

(Alaska 2005)).  



                      Dennis O. v. Stephanie O. , 393 P.3d 401, 405-06 (Alaska 2017) (quoting  

Jerry B. v. Sally B. , 377 P.3d 916, 924-25 (Alaska 2016)).  

           8          Alaska Const. art. I,  7.  



                      Dennis O. , 393 P.3d at 406 (alteration in original) (quoting In re K.L.J. , 813  

P.2d 276, 279 (Alaska 1991)); Berry v. Berry , 277 P.3d 771, 774 (Alaska 2012).    



                      Dennis O. , 393 P.3d at 406 (quoting Ostrow v. Higgins, 722 P.2d 936, 942  

(Alaska 1986)).  

           11         Id. (quoting In re K.L.J. , 813 P.2d at 278).  

                                                                     -13-                                                               7305

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


                     First, the private interest that will be affected by the official  

                     action; second, the risk of an erroneous deprivation of such  

                     interest through the procedures used, and, the probable value,  


                     if any, of additional or substitute procedural safeguards; and  


                     finally,  the  Government's  interest,  including  the  function  

                     involved and the fiscal and administrative burdens that the  

                     additional   or   substitute   procedural   requirement                          would  




Applying these factors, we consider Sarah's argument that the appearance of judicial  


partiality violated her due process rights, requiring us to vacate the termination order and  


remand for proceedings before a different judge.                                

          A.	        First  Factor:  The  Private  Interest   Affected   Is  Of   The   Highest  


                     Magnitude And Weighs In Sarah's Favor.  

                     The private interest at stake in a termination proceeding is significant.  It  


is well established that the interest in the care and custody of one's own child is the most  


basic of all civil liberties and "a fundamental right recognized by both the federal and  



state  constitutions."               We  have  held  that  the  interest  of  a  parent  facing  termination  

proceedings is "of the highest magnitude" and "clearly falls within the protections of the  


due process clause."15  

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

2000) (quoting Mathews v. Eldridge , 424 U.S. 319, 335 (1976)).   

           13        We note that Sarah does not make a claim of judicial bias under Code of     

Judicial Conduct Canon 3(E)(1), nor did she move to recuse or disqualify the presiding   

judge at trial.  We therefore limit our discussion to Sarah's due process claim.  



                    Dennis O. , 393 P.3d at 407 (quoting J.M.R. v. S.T.R. , 15 P.3d 253, 257  

(Alaska  2001));  see  also  Alex  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

 Children's Servs., 389 P.3d 35, 49 (Alaska 2017); Flores v. Flores , 598 P.2d 893, 895  

(Alaska 1979).  



                    Dennis O. , 393 P.3d at 407-08 (first quoting In re K.L.J. , 813 P.2d at 279;  


                                                               -14-	                                                        7305

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

                    To the extent Sarah would have us independently consider an additional  


private  interest  -  her  right  to  an  impartial  decision-maker  during  a  termination  


proceeding - we decline to do so.  We agree that parents, like all others who come  

before a tribunal, enjoy a due process "right to a neutral and unbiased decision-maker  



who presides over proceedings that are fair and that have the appearance of fairness." 


We also bear in mind that  "[s]ubmission to a fatally biased decisionmaking process is  


in itself a constitutional inquiry" and "a fair trial in a fair tribunal is a basic requirement  

of due process."17  But when considering this first factor, we do not give "separate weight  

to the various procedural rights independently established under the due process clause,"  


and we instead limit our inquiry "to the significance of the underlying substantive right  

                                 18                                                                          19 


requiring protection."               The substantive right here is the right to parent.                          The import  


of perceived judicial partiality is more appropriately considered in the context of the  


second factor:  risk of erroneous deprivation and the probable value of the requested  

procedural safeguards.  

          15        (...continued)  

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


Servs., 71 P.3d 811, 831 (Alaska 2003)).  

          16        See Copeland v. Ballard, 210 P.3d 1197, 1201 (Alaska 2009).  



                    RBG  Bush  Planes,  LLC  v.  Kirk ,  340  P.3d  1056,  1066  (Alaska  2015)  

(alterations  in  original)  (first  quoting  United  Church  of  the  Med.  Ctr.  v.  Med.  Ctr.  

Comm'n, 689 F.2d 693, 701 (7th Cir. 1982); then quoting Stivers v. Pierce, 71 F.3d 732,  


741 (9th Cir. 1995)).  

          18        Alex H. , 389 P.3d at 50.  

          19        See id. at 49.  

                                                              -15-                                                         7305

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

          B.	       Second  Factor:    The  Risk  Of  Erroneous  Deprivation  And  The  

                    Probable Value Of Remand Are Low.  

                    Sarah argues that any appearance of a lack of judicial impartiality during  


a termination proceeding is structural error, requiring that we automatically vacate and  


remand.          But Sarah ignores the fact that in the context of termination proceedings,  

"[n]ot  every  potential  deprivation  of  protected  interests  results  in  a  due  process  

          20        Sarah   cites  the  United  States  Supreme  Court's Arizona  v.  Fulminante  

decision stating that in criminal cases, "the presence on the bench of a judge who is not                  

impartial" is a structural defect that "def[ies] analysis by 'harmless-error' standards." 499  

U.S. 279, 309-10 (1991) (Rehnquist, J., dissenting in part) (citing Tumey v. Ohio, 273  

U.S. 510 (1927)); see also Chapman v. California, 386 U.S. 18 (1967).  Sarah urges us  


to apply the same approach to termination trials because the proceedings are equally  


tainted by judicial partiality, and a significant fundamental right - the right to parent -  


is at stake. But we agree with the California Supreme Court that "significant differences  


between  criminal  proceedings  and  [CINA]  proceedings  provide  reason  to  question  


whether  the  structural  error  doctrine  that  has  been  established  for  certain  errors  in  

criminal  proceedings  should  be  imported  wholesale,  or  unthinkingly,  into  the  quite  


different context of [CINA] cases."  In Re James F. , 174 P.3d 180, 189 (Cal. 2008).  And  


in the past we have not simply stopped our analysis at whether a potential violation of  

due  process  occurred.    See  Alex  H. ,  389  P.3d  at  50  (considering  how  incarcerated  


parent's inability to attend termination trial may have altered proceeding's outcome);  

D.M.  v. State, Div. of Family & Youth  Servs., 995 P.2d 205, 212-13 (Alaska 2000)  


(considering first "whether lack of notice might deprive a parent of sufficient opportunity  


to prepare her case" and then, after reviewing record, holding parent "fail[ed] to identify  


any plausible way she was prejudiced in the termination proceedings").     

                    Sarah's reliance on  Vent v. State is similarly unavailing.  288 P.3d 752  

(Alaska  App.  2012).    In  Vent  the  court  of  appeals  vacated  a  decision  denying  an  

application for post-conviction relief because the superior court's outside research and  


conduct  "created  an  appearance  of  partiality."    Id.  at  753.    The  court  of  appeals  

concluded  that  the  court  had  conducted  an  inadmissible  ex  parte  investigation  that  

created an appearance of partiality, but, instead of ending its inquiry there, applied a test  


to determine whether the defendant was substantially prejudiced.  Id. at 757-58.  Sarah's  


reliance is misplaced, not least because Vent is a criminal matter that did not treat judicial  


partiality as structural error requiring automatic reversal.  

                                                              -16-	                                                        7305

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

violation."21  Although a party need not prove actual prejudice to establish a due process  

violation, "a theoretical possibility of prejudice is not enough."22  "[A] court must assess  



'the probable value' of [the requested procedure] in reducing the risk that parental rights  


might  be  erroneously  terminated"  and  "consider  the  likelihood  that  [the  requested  


                                                           This inquiry "is not the same as determining  

procedure] might alter the outcome." 

                                                                                                                       24 the  

whether any constitutional error was harmless, but more fundamentally considers" 

effect that the error might have had on a parent's right to "be heard" and "adequately  



represent [her] interests,"            i.e., whether it "deprives the parent of a sufficient opportunity  

to present a case."26  We have denied due process claims where a parent failed to identify  


any "plausible" basis for finding prejudice or did not theorize about how the requested  

procedural  safeguard  might  "potentially  alter[  ]  the  findings  about  .  .  .  parental  



                    For instance, in Alex H. v. State, Department of Health & Social Services,  

Office  of  Children's  Services  we  addressed  an  incarcerated  father's  claim  that  the  


superior court violated his due process right to in-person attendance of his parental rights  

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

          22       Id.  

          23       Alex H. ,  389 P.3d at 50 (alterations in original) (quoting D.M. ,  995 P.2d at  


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

          25        See In re K.L.J., 813 P.2d 276, 2                79 (Alaska 1991) (quoting Matanuska  

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

          26       Alex H. , 389 P.3d at 50.  



                   D.M. , 995 P.2d at 210-11, 213; see also Dennis O. v. Stephanie O., 393  

P.3d 401, 409-11 (Alaska 2017); Alex H. , 389 P.3d at 50-53.  

                                                            -17-                                                       7305

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

termination trial by denying his prisoner-transport request and conducting the hearing  


telephonically.           We noted that "the generic benefits of in-person attendance do not   

suffice to establish a per se due process right" for prisoner transport to a termination trial,  


and  we  stated  that  to  prevail  the  "prisoner  must  address   the  particular  issues  being  

determined at the termination trial and identify how in-person attendance would reduce  



the risk of an erroneous ruling on those issues."                           We concluded this second factor  

weighed  against  the  father  because  he  failed  "to  demonstrate  how  his  in-person  

attendance could have altered the outcome of the proceedings or why his telephonic  

attendance increased the risk that the superior court would reach an erroneous result."30 


                    In  Wendell C. II v. State, OCS we considered whether the superior court  

violated the due process right to notice by relying upon outside information - social  

science research not admitted into evidence - as a basis for terminating parental rights.31  

The parents argued that the studies, detailing  the effects of alcoholism and domestic  


violence  on  families,  could  not  be  judicially  noticed  because  they  were  subject  to  


reasonable  dispute  and  that  the  lack  of  notice  was  improper  and  violated  their  due  


                            We  affirmed  the  superior  court  because  there  was  "no  reasonable  

process  rights.                                     

likelihood that the . . . decision to terminate parental rights would have been different  

                                                                                33  Because the court made "so  

absent the social science studies cited in the opinion."     

          28       389 P.3d at 48-54. 

          29       Id. at 51. 

      Id. at 54.  

          31        118 P.3d 1, 2 (Alaska 2005).  

          32       Id. at 3.  

          33       Id.   

                                                            -18-                                                      7305

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


many other specific findings, based on admissible evidence," its citation of academic  

articles and studies did not require us to vacate the decision.34  


                    Turning  to  Sarah's  case,  we  note  that  the  court  found  by  clear  and  


convincing  evidence  that  Moe  was  a  child  in  need  of  aid  based  on  three  separate  


provisions of Alaska law:  AS 47.10.011 (8) (mental injury from domestic violence), (10)  


(parental substance abuse), and (11) (parental mental illness).  Sarah challenged none of  


the findings supporting these grounds for termination, relying entirely on her argument  

that any appearance of partiality in a termination proceeding is structural error.  But her  

challenge to the court's partiality pertains at most to one ground - substance abuse -  


not to Sarah herself, and leaves the two other grounds for termination unaffected.  One  


ground alone sufficiently supports a termination order.                               By failing to challenge the  

factual  findings  regarding  the  other  grounds  for  termination,  Sarah  neglected  to  


"  'identify  any  plausible  way  that  [she]  was  prejudiced'  at  the  hearing."                                And,  as  

discussed  further  below,  our  own  review  of  the  record  suggests  no  probability  that  


remand "might alter the outcome."37  

                    1.	      The superior court did not prejudge Sarah's character or the  

                             outcome of the termination proceedings at the trial's midpoint.  

                    Contrary to Sarah's assertions, the superior court did not "prejudge[] the  

case" or form a "premature negative opinion" of Sarah's "character and credibility"  


when, prior to the close of evidence and before she had testified, it shared its impression  

          34	      Id. at 4-5.  

          35       Alyssa  B.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

Servs., 165 P.3d 605, 618 (Alaska 2007).  

          36       See Dennis O.         , 393 P.3d at 410 (quoting D.M. v. State, Div. of Family &  

Youth Servs., 995 P.2d 205, 213 (Alaska 2000)).  

          37       See id. at 409 (quoting D.M. , 995 P.2d at 212).  

                                                            -19-	                                                      7305

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


that she had exhibited a pattern of evasiveness and dishonesty with providers.  The court  


                                                                                                                                                 Although the  

stated its "impression so far" - not its decision prior to the trial's close. 


court referenced Sarah's inclination to "evade and obfuscate and dodge," this statement  

was not a comment on her character but rather a fair summary of the testimony, which  

in fact did indicate that she had triangulated service providers.  

                          Multiple witnesses testified to Sarah's level of deception, her denial of  

substance abuse and domestic violence, and her refusal to enter residential treatment or  

attend  therapy  regularly.    Kupczyk-Gregory  testified  about  how  Sarah  evaded  UA  

testing, misled assessors about services received elsewhere, and misrepresented the status  


of her application to residential treatment so she could have an off-the-books visit with  


Moe.  Carsow described Sarah as dishonest, explained that she misused taxi vouchers,  

and  testified  to  discrepancies  between  Sarah's  and  OCS's  reports.    Even  service  


providers testifying on Sarah's behalf said she "consistently denied use" of substances  

             38            Sarah offers cases from other jurisdictions as examples of prejudgment, but                                     

all are more extreme than the superior court's comments here.  In                                                                  People v. Johnson a  

criminal verdict was overturned because the court "reached a conclusive opinion of [the     

defendant's] guilt prior to the close of all the evidence" and blatantly remarked, "[t]here   

will be a finding of guilty" before the final witness took the stand. 281 N.E.2d 451, 452-                                        

53 (Ill. App. 1972).  No such declaration occurred here.  In People v. Jackson a first- 

degree murder guilty verdict was overturned when the court "repeatedly referred to the  


shooting as 'murder' even though the trial had not ended."  949 N.E.2d 215, 231 (Ill.  


App. 2011).  Finally, in Crandell v. United States the Fourth Circuit Court of Appeals  

concluded the court had prejudged a medical malpractice case in part by disparaging the  


plaintiffs' case from the start, suggesting plaintiffs were unreasonable in their refusal to  


settle the suit and making comments about the "possible financial ramifications of the  

trial [that] were irrelevant to proper deliberation of the issues."  703 F.2d 74, 75-76 (4th  


Cir. 1983).  The superior court's conduct at the mid-point of Sarah's proceeding did not  


rise to the level of bias or prejudgment exhibited in these cases:  the court remained  


undecided on major issues, like whether OCS filed the petition too early, and did not go  


so far as to demand the equivalent of a settlement or preordain a guilty verdict.  

                                                                                  -20-                                                                           7305

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


or she had  not given  them  documentation  from  other providers.   Sarah  herself  later  


admitted that she had not always been honest with OCS and stated that she "probably"  

began getting honest with OCS "around . . . September of 2016."  

                    We also observe that the superior court requested observed weekly UA tests  

between the two hearings and appeared open to hearing Sarah's testimony - actions  

inconsistent   with   a   foregone   conclusion.      The   court   stated   that   it   understood  

"manipulation of services" and dishonesty are part of addiction but that Sarah "needs to  


go to somebody" and "regardless of what happens . . . that needs to be fixed" because  


"[i]f you're asking me to turn a child over to someone with that kind of Axis I diagnosis  

and no treatment, you know, that ain't going to happen."  


                    Finally, we note that the superior court was balanced in its treatment of the  



parties.       The court addressed OCS, remarking:  "[U]sually we try a little bit longer to  

fix people before we give up, and I'm not certain that I know the exact reasons for that  

from  the  testimony  I've  heard."    This  concern  permeated  the  hearing;  the  court  


questioned OCS mid-testimony about the swiftness of its petition to terminate parental  


rights,  noting  the  decision  was  made  "well  before  a  year  had  expired"  and  asking:  


"[W]hy that quickly?"  Because the record shows the court was balanced in its treatment  


of the parties and had not reached a final conclusion, we conclude the court did not  


prejudge Sarah's character or the outcome of the termination trial.                                  

          39        Cf. Kinnan v. Sitka Counseling, 349 P.3d 153, 155, 161 (Alaska 2015)  

(concluding there was no appearance of bias because court overruled certain evidentiary  


objections and "expressly noted" evidence favorable to party alleging prejudgment).  

          40        See id.  

                                                             -21-                                                       7305

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

                     2.	        Any perceived partiality related to only one of three distinct  

                                termination grounds and would not have changed the outcome.  


                     According to Sarah, the superior court's rigorous, persistent, and extensive  


interrogation of Dr. Spencer was that of a prosecutor, not a dispassionate or impartial  


jurist, and the court exceeded its discretion to examine witnesses.  Sarah asserts that the  


court's interruption of her cross-examination of Maneval regarding THC levels was both  


hostile and improper, particularly the court's refusal to provide a basis for its knowledge.  


 Sarah also contends that throughout the hearing the court "improperly relied on outside  


knowledge regarding the proper treatment of pain in an opiate-addicted patient" and  

disregarded evidence favorable to her.  

                     We are disturbed by the superior court's conduct, particularly its highly  


inappropriate "quick search" for information not presented as evidence and its reliance  



on other cases' experts.  The court apparently exceeded the bounds of judicial notice, 

           41        Alaska Code of Judicial Conduct Canon 3(B)(12) provides that "[w]ithout                      

prior notice to the parties and an opportunity to respond, a judge shall not engage in   

independent ex parte investigation of the facts of a case."  Canon 3(B)(12) makes an  

exception  for  judicial  notice  of  fact,  permitted  under  Alaska  Evidence  Rule  201(a).  

Rule 201(b) clarifies that a court may take judicial notice of a fact so long as it is "not  


subject to reasonable dispute in that it is either (1) generally known within this state or  


(2) capable of accurate and ready determination by resort to sources whose accuracy  


cannot reasonably be questioned."   

                     The superior court's references to personal knowledge and facts outside of  


evidence do not fall within this sheltered category.  Sarah had no notice of the court's  


"quick search" about the interaction of Suboxone and marijuana, nor could she cross- 


examine the expert testimony from the driving under the influence case or the military  


drug-testing experience the court referenced. Although not referenced in its decision, the  


court's statements during trial gave the appearance of partiality and seemingly foreclosed  

the possibility of concluding that Sarah had remedied her substance abuse.  

                                                                 -22-	                                                          7305

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



and likely abused its discretion to examine witnesses.                                  We disapprove of this conduct,  

as the appearance of partiality does violence to the integrity of the justice system.  


                     But  we  note  that  the  superior  court  at  most  demonstrated  lack  of  

impartiality as it related only to one ground for terminating parental rights:  that Sarah's  

substance  abuse  substantially  impairs  her  ability  to  parent.    The  exchanges  that  she  

contests all exclusively concern her failure to achieve full sobriety.  Although these  

exchanges may be enough to draw the court's substance abuse findings into question,  

Sarah has made no argument that the court's remaining grounds for termination - that  

Moe  is  a  child  in  need  of  aid  because  he  has  suffered  mental  injury  as  a  result  of  

          42         Alaska Evidence Rule 614 authorizes courts to call or examine any witness.     

Rule 614(b)'s commentary notes it is well-established that a court may interrogate any                   

witnesses, but emphasizes "[i]n trials before a jury . . . the court's questioning should be                

cautiously guarded so as not to constitute an implied comment."  To that end, "the court  

abuses its authority when it plays the part of the advocate."  The commentary recognizes  


that "the manner in which interrogation should be conducted and the proper extent of its  


exercise are not susceptible of formulation in a rule" and clarifies that appellate courts  


may reverse for abuse of discretion.  Assessing whether the superior court improperly  

assumed  an  advocate's  role,  this  court  has  looked  to  whether  the  judge's  "tone  or  


demeanor  during  [the]  exchange  .  .  .  exhibited  bias."    Kinnan ,  349  P.3d  at  161.  

Questioning  exceeds  Rule  614(b)'s  boundaries  if  the  court  "communicate[s]  a  bias  

against [the witness] to the jury" or "suggest[s] in any manner that [the court] did not  

believe [the witness]."  Hartley v. State , 653 P.2d 1052, 1053 n.1 (Alaska App. 1982).  

                     The  superior  court  here  was  hostile  to  Dr.  Spencer,  discounting  her  

testimony about Sarah's progress and giving the appearance that the court personally  


disagreed with Dr. Spencer's medical decision to focus on her patients' opiate addiction  


rather than their marijuana use.   The court's questioning of Dr. Spencer went on for  


several minutes, and the court's tone was argumentative, near prosecutorial, throughout.  


The  court's  tone  and  demeanor  were  also  argumentative  during  Sarah's  cross- 


examination of Maneval, when the court interjected to say:   "[w]ell, let me stop you  


there.  I'm - practically have a master's degree in drug testing from military.  Those  


numbers - if someone smokes marijuana and has a test the next day, this can - be really,  


really high."  We do not condone such conduct.  

                                                                 -23-                                                           7305

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

exposure to domestic violence and because her mental illness places him at substantial  


risk of physical harm or mental injury - were plausibly tainted by the court's perceived  


lack of impartiality.  One finding alone is sufficient to support the termination order.43  

Because Sarah does not challenge the domestic violence or mental illness grounds for  

termination, we conclude that the court's conduct underlying the substance abuse finding  

has "no impact on the outcome of the case."44  

                    The record confirms our conclusion that there is little risk of erroneous  


deprivation of Sarah's parental rights and that the probable value of remand is low.  This  

second factor does not weigh in Sarah's favor.  

          C.        Third Factor:  The State's Interests Weigh Against Sarah.  

                    The State has articulated an interest in promoting "the child's welfare and  


the parents' participation in the upbringing of the child to the fullest extent consistent  

                                             45   In the context of CINA proceedings, this includes an  


with the child's best interests." 

interest in assuring "fairness, accurate fact-finding, the expeditious determination of  



children's matters, and the best interests of the child."                         It is clear that the State "shares  



the parent's interest in an accurate and just decision."                         However, because permanency  

is also in the child's best interests, the unnecessary "lengthening of judicial procedures"  


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

Servs., 165 P.3d 605, 618 (Alaska 2007).  

          44       Id. ; see  also  Alex  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

Children's  Servs.,  389  P.3d  35,  52  (Alaska  2017)  (holding  that  "single  instance  of  

possible  judicial  interference  does  not  demonstrate  that  [the  requested  procedural  

safeguard] would have reduced the risk of erroneous deprivation").  

          45       AS 47.10.005(1).  

          46        CINA Rule 1(c).  

          47       In re K.L.J. , 813 P.2d 276, 280 (Alaska 1991).  

                                                            -24-                                                       7305

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

may pose fiscal and administrative burdens that run counter to the child's best interests.                                              48  

                     OCS argues that a court's inability to "explore inconsistencies in witness  


testimony or clarify its understanding" would "burden [OCS's] interest in making a fair  


and accurate decision by decreasing the court's understanding of the facts."  We agree,  


but that is not the scenario before us.  It is difficult to see how OCS's interest in fairness  


and  accurate  fact-finding  would  be  served  by  affirming  the  decision  of  a  court  that  


openly relied upon extrajudicial facts, adopted the role of a hostile advocate, and gave  


the appearance of partiality whether against the parent or OCS.  A court can question  


witnesses for the purpose of finding facts without taking on the role of an advocate by  

moderating   its   tone   and   demeanor   and   providing   fair   opportunities   for   cross- 


                     Far more compelling are the State's interests in fostering the child's best  

interests  and  avoiding  the  administrative  and  fiscal  costs  of  lengthening  judicial  

proceedings.  While in Sarah's household, Moe suffered mental injury as a result of  


exposure to his parents' chronic domestic violence, manifestations of mental illness, and  


substance abuse.   Moe  is finally  improving  in  his grandmother's care:    he  is  better  


adjusted socially, his school attendance and performance have improved, and he displays  


fewer symptoms of anxiety.  He was removed from his parents' care three years ago, in  

2015.    Remand  at  this  juncture  would  create  a  fiscal  and  administrative  burden  


inconsistent with Moe's best interests, particularly when it is undisputed that Sarah has  

failed to remedy the conduct or conditions that rendered Moe a child in need of aid.  

                     Although the State's interest in fairness and accurate fact-finding is not  


served by the appearance of, or actual, judicial partiality, the child's best interests and  

           48        Dennis O. v. Stephanie O. , 393 P.3d 401, 411 (Alaska 2017) (quoting In  

re K.L.J., 813 P.2d at 280).  

                                                                  -25-                                                                7305  

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

the particular facts here tip this third prong against Sarah:  remand would unnecessarily  

lengthen judicial proceedings, jeopardizing permanency for a child who is finally healing  

after suffering trauma and mental injury in Sarah's care.  

         D.       Conclusion 

                   The superior court's perceived lack of impartiality with respect to one issue  


in this case did not rise to the level of structural error or violate Sarah's due process  


rights.  Although the court may have exhibited partiality related to whether substance  


abuse continues to substantially impair Sarah's ability to parent, her ability to "be heard"  


and "adequately represent [her] interests" with  respect to the domestic violence and  

                                                                                                        49  Moe's  

mental illness findings was not plausibly prejudiced by those limited exchanges. 

best  interests  will  not  be  served  by  delaying  permanency  and  prolonging  judicial  

proceedings in the face of uncontroverted factual findings that Sarah has yet to remedy  

the conduct or conditions that made him a child in need of aid.  


                  The  superior  court's  decision  terminating  Sarah's  parental  rights  is  



         49       In re K.L.J. , 813 P.2d at 279 (quoting Matanuska Maid, Inc. v. State , 620  

P.2d 182, 192 (Alaska 1980)).  

                                                       -26-                                                    7305  

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