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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Norman S. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (3/13/2020) sp-7429

Norman S. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (3/13/2020) sp-7429

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

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                        THE SUPREME COURT OF THE STATE OF ALASKA                                          



NORMAN  S.,                                                         )          Supreme  Court  No.  S-17396  

                                                                    )  

                                  Appellant,                        )          Superior  Court  No.  4FA-17-00173  CN  

                                                                    )  

           v.                                                       )          O P I N I O N  

                                                                                                    

                                                                    )  

STATE OF ALASKA,                                                    )          No. 7429 - March  13, 2020  

                                                                                                                      

DEPARTMENT OF HEALTH &                                             )  

                                                           

SOCIAL SERVICES, OFFICE OF                                          )  

                                                             

CHILDREN'S SERVICES,                                                )  

                           

                                                                    )  

                                  Appellee.                         )  

                                                                    )  



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

                                                                                                                  

                                              

                       Judicial District, Fairbanks, Thomas I. Temple, Judge.  

                                                                                                        



                       Appearances:   J. Adam Bartlett, Anchorage, for Appellant.  

                                                                                                                             

                       Mary  Ann  Lundquist,  Senior  Assistant  Attorney  General,  

                                                                                                             

                       Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau,  

                                                                                                                

                       for Appellee.  Nikole V. Schick, Assistant Public Advocate,  

                                                                                                           

                       and      James        Stinson,         Public        Advocate,           Anchorage,             for  

                                                                                                                     

                       Guardian Ad Litem.  

                                              



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

                                                                                                            

                       and Carney, Justices.  

                                             



                       STOWERS, Justice.  

                                             



I.         INTRODUCTION  



                       A father appeals the superior court's decision to terminate his parental  

                                                                                                                                     



rights to his daughter.  The father attended the termination proceeding but left early, at  

                                                                                                                                                


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which point the Office of Children's Services (OCS) moved forward with an offer of                                                                                                                    



proof.   The father's attorney objected to the offer of proof, but the court accepted the                                                                                                                        



offer  and   terminated   the   father's   parental   rights.     The   father   now   challenges   the  



termination proceeding's procedure and outcome.                                                                               He argues that OCS's use of an offer                                           



of proof violated his right to procedural due process and constituted structural error. He                                                                                                                        



also argues that the court erred in terminating his parental rights because there was not                                                                                                                        



sufficient evidence.                               We agree that a court may not accept such an offer as proof of the                                                                                             



facts asserted, unless the opposing party offers no dispute.                                                                                             Therefore, we vacate the                                



termination order and remand for further proceedings.                                                   



II.              FACTS AND PROCEEDINGS                 



                                                                                                                                                                        1  

                                                                                                                                                                                                              

                                 Norman S. and Rebecca N. are the parents of Heather.                                                                                        Heather was born  



                                                                                                                                                                                                         

in July 2017 with serious birth defects.   Norman and Rebecca struggled with severe  



                                                                                                                                                                                                                      

substance abuse problems, including the use of methamphetamine.   OCS received a  



                                                                                                                                                                                                               

report on the day  of Heather's birth indicating concerns about the baby.   She was  



                                                                                                                                                                                                                    

removed from her parents by OCS on the day she was discharged from the hospital in  



                                                                                                                                                                                        

September.   Heather was adjudicated a child in need of aid under AS 47.10.011(1)  



                                                                                                                                                                                         

(abandonment), (9) (neglect), and (10) (substance abuse) in March 2018.  



                                                                                                                                                                                                                 

                                  OCS filed a petition for termination of parental rights in July, and the  



                                                                                                                                                                                                                  

termination proceeding was held the following February.   The proceeding began on  



                                                                                                                                                                                                           

February 4 at 8:38 a.m.  Norman attended and his attorney asked for a moment to speak  



                                                                                                                                                                                                                   

with him.  The court went off record, attended to some other matters, then went back on  



                                                                                                                                                                                                          

record. OCS's attorney said that he was ready to begin trial and that his witnesses would  



                                                                                                                                                                                                                

arrive  at  10:00  a.m.                                   Norman's  attorney  indicated  that  Norman  wanted  a  trial  but  



                                                                                                                                                                                            

requested setting it for the following week because they had not "had a meaningful  



                                                                                                                                                                                                                 

opportunity to talk about what kind of witnesses he'd like to call."  OCS's attorney did  



                 1  

                                                                                                                                                

                                 We use pseudonyms to protect the family's privacy.  



                                                                                                         -2-                                                                                                          7429  


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not want to reschedule.   The court then decided to address Norman's request for a  



                                                                                       

continuance when the proceeding resumed at 10:00 a.m.  



                                                                                                                                 

                    The court went back on record at 10:00 a.m.  Norman was no longer in  



                                                                                                                       

attendance.  OCS's attorney said, "We are ready to proceed [with] an offer of proof as  



                                                                                                                           

to him if he does not show back up in the next couple seconds."  The court again asked  



                                                                                                                           

the father's attorney if she was prepared to proceed. She asked for a continuance, which  



                                                                                                                               

the court denied.   The court then asked, "Anyone else wish to be heard before we  



                                                                                                                             

proceed with an offer of proof?" No one responded, and OCS's attorney proceeded with  



                                                                                                                              

his offer of proof.  After the offer of proof, the court asked Norman's attorney if she  



                                                                                                         

would like to be "heard any further," to which she responded, "No.  Thank you."  The  



                                                                                                                           

guardian ad litem"support[ed] the court entering termination of [Norman's] rights based  



                                                                                                                                

on  the  offer  of  proof."             Norman's  attorney  requested  that  the  findings  be  held  in  



                                                                                                                   

abeyance until the court made a decision on Rebecca's rights, as is typical in termination  



                                                                                                                                

proceedings. The court agreed, and it went off record until the mother's proceeding. At  



                                                                                                                              

that point, neither Norman nor his attorney were present.  OCS's attorney indicated that  



                                                                                                                    

Rebecca had agreed to relinquish her rights and would sign the termination agreement  



                                                                                                              

that day.   The court kept the matter on for 10:00 a.m. the following day "with the  



                                                                                                                              

understanding [it] may be just making some findings on an agreement to relinquish. And  



                                                                                                     

if not, then the parties are prepared to proceed to trial tomorrow."  



                                                                                                                             

                    The   proceeding   resumed   the   next   day.                           Rebecca   had   filed   her  



                                                                                                                              

relinquishment of parental rights and responsibilities, which the court approved.  The  



                                                                                                                              

court  then  asked  Norman's  attorney  if  she  wanted  to  address  anything  else.                                        She  



responded,  



                                                                                                        

                              I want to place on the record . . . concerns that I have  

                                                                                               

                    regarding my client, and I think they amount to objections,  

                                                                                           

                    essentially, regarding the entry of the offer of proof.  



                                                               -3-                                                         7429
  


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

                                                                                                             

                               My client did appear at the scheduled time at 8:30 for  

                                                                                                      

                    his termination trial.  Everybody agrees that he was present  

                                                                                                                

                     for the initial hearing that we held. . . . [O]ne concern that I  

                                                                                                        

                     do have is that this entry of an offer of proof is being taken,  

                                                                                                                 

                     even though my client did appear on the day of trial.  So . . .  

                                                                                                     

                     I suspect that there [is] at least an issue of the court entering  

                                                                                                             

                     an offer of proof when my client did appear the same day for  

                                                                                                             

                     a termination of parental rights trial, which he indicated he  

                                                                     

                     did want to take advantage of.  



                                                                                                                         

The court determined that the fact that Norman left "is no different than folks showing  



                                                                                                                                   

up for a trial, staying one minute, and just disappearing because they no longer want to  



                                                                                                                                  

have a trial."  The court reasoned, "He simply left, and we proceeded with an offer of  



                                                                                                                              

proof based on his failure to appear for his own trial.  So those are the findings I'll make  



                                                                                                                      

for the record, but your position is noted."  The proceeding then concluded.  



                                                                                                                         

                     On February 19 the court issued its order terminating Norman's parental  



                                                                                                                                 

rights. It found by clear and convincing evidence that Heather was a child in need of aid  



                                                                                                                         

under the same subsections found for adjudication based on Norman's conduct; Norman  



                                                                                                                             

had not remedied the conduct or conditions that put Heather at a substantial risk of harm;  



                                                                                                                               

and  OCS  made  reasonable  and  active  efforts  to  provide  remedial  services  and  



                                                                                                                                 

rehabilitative programs but was unsuccessful. The court also found that "[b]ased on the  



                                                                                                                     

offer  of  proof,  the  previous  reports  and  pleadings  in  this  case,  and  the  previously  



                                                                                                                                  

received  sworn  testimony,  there  is  proof  beyond  a  reasonable  doubt  that  return  of  



                                                                                                                         

[Heather] to the father's custody is likely to result in serious emotional and/or physical  



                                                                                                                               

damage  to  [Heather]."                 It  finally  found  by  a  preponderance  of  the  evidence  that  



                                                                                                                                  

termination of Norman's parental rights was in Heather's best interests.  Therefore, all  



                                                                                                                        

of Norman's parental rights were "permanently and irrevocably terminated."  



                                                        

                    Norman now appeals.  



                                                                -4-                                                          7429
  


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

III.           STANDARD OF REVIEW                     



                            Whether a superior court may accept an offer of proof when a party objects                                                                   



is a question of law. "We review legal questions de novo, 'adopt[ing] the rule of law that                                                                                      

is most persuasive in light of precedent, reason, and policy.' "                                                                  2  



IV.           DISCUSSION  



                                                                                                                                                                         

              A.            Norman Did Not Waive His Arguments Against The Offer Of Proof.  



                                                                                                                                                                      

                             OCS argues that Norman waived his arguments regarding the offer of  



                                                                                                                                                                     

proof.  We have held:  "Failure to object to alleged error at the trial level may preclude  



                                                                                                                                                                           

raising the point on appeal.  By consenting to certain procedures or by failing to object  



                                                                                                                                                                                

to others, a party may waive those rights which are arguably encompassed within due  



                                            3  

                  

process guarantees." 



                                                                                                                                                                              

                            When the court asked if anyone wished to be heard before proceeding with  



                                                                                                                             

the offer of proof, Norman's attorney did not reply.  After the offer of proof, the court  



                                                                                                                                                                

asked Norman's attorney if she wished to be heard any further, to which she responded,  



                                                                                                                                                                             

"No. Thank you." The following day, the court asked Norman's attorney whether there  



                                                                                                                                                                          

was anything more to address.  She responded that she "want[ed] to place on the record  



                                                                                                                                                                              

 . . . objections, essentially, regarding the entry of the offer of proof." She thought it was  



              2             Pastos v. State                 , 194 P.3d 387, 391 (Alaska 2008) (alteration in original)                  



(footnote omitted) (quoting                                Guin v. Ha              , 591 P.2d 1281, 1284 n.6 (Alaska 1979)).                                 



              3             In re C.L.T., 597 P.2d 518, 522 (Alaska 1979) (citation omitted). There are  

                                                                                                                                                                                 

two exceptions to this rule. First, we "will consider plain error, even though not objected  

                                                                                                                                                                      

to below, if it is so substantial as to result in a miscarriage of justice."   Id.  at 523.  

                                                                                                                                                                                         

 Second, "an argument not explicitly raised by an appellant below may nevertheless be  

                                                                                                                                                                                  

considered on appeal 'if the issue is (1) not dependent on any new or controverted facts;  

                                                                                                                                                                            

(2) closely related to the appellant's trial court arguments; and (3) could have been  

                                                                                                                                                                             

gleaned from the pleadings.' "  Radebaugh v. State, Dep't of Health & Soc. Servs., Div.  

                                                                                                                                                                               

of Senior & Disabilities Servs., 397 P.3d 285, 292 (Alaska 2017) (quoting Erkins v.  

                                                                                                                                                                                   

Alaska Tr., LLC, 265 P.3d 292, 298 n.15 (Alaska 2011)).  

                                                                                                          



                                                                                         -5-                                                                                 7429
  


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

"an issue" that the court entered an offer of proof when Norman "did appear the same   



day for a termination of parental rights trial, which he indicated he did want to take                                                                                                                                  



advantage of."                          



                                   OCS   argues   that   "Norman   did   not   object   to   the   offer   of   proof   as   an  



improper    procedure."      However,    Norman's    attorney    clearly  raised    "objections,  



essentially, regarding the entry of the offer of proof" before the end of the hearing.                                                                                                                                                



Therefore, Norman's arguments regarding the offer of proof are not waived.                                                                                                          



                  B.	              It Was Error As A Matter Of Law To Accept An Offer Of Proof                                                                                                                     

                                   Without The Agreement Of All Parties.                                                     



                                   The superior court accepted OCS's offer of proof as to Norman despite an                                                                                                                  



objection by Norman's attorney.                                                           This was error as a matter of law.                                                               We now make               



explicit what was implicit in earlier decisions: a court may accept an offer of proof only                                                                                                                              



                                                                     4  

if all present parties agree.                                                                                                                                                                                                

                                                                           If any party disputes the offer of proof, then there must be  



                  4                See,   e.g.,   Dakota   C.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of  



Children's   Servs.,   No.   S-17230,   2019 WL   4051950,   at   *2   (Alaska   Aug.   28,   2019)  

("unopposed  offer  of  proof");  Emily  B.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

Children's   Servs.,   No.   S-17180,   2019   WL   2880993,  at  *2   (Alaska   July   3,   2019)  

(attorney   agreed  to   offer   of  proof);  Alfred  J.  v.  State,  Dep't   of Health &  Soc.  Servs.,  

Office   of Children's  Servs.,  No.   S-17120,   2019   WL   1503992,   at   *2   (Alaska  Apr.   3,  

2019)  (father   stipulated  to  offer  of  proof);  Payton  S.  v.  State,  Dep't of  Health   &  Soc.  

Servs., Office of Children's Servs., 349 P.3d 162,   165 (Alaska 2015)  (no indication of  

objection  to  offer  of  proof);  Jordan  J.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

Children's Servs.,  No.  S-15631,  2015  WL   1985060,  at  *1  n.4 (Alaska  Apr. 29, 2015)  

("unopposed  offer  of  proof");  Lindsey  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  

of  Children's  Servs.,  No.  S-13711,  2010  WL  4909461,  at  *7  (Alaska  Dec.  2,  2010)  (no  

indication   of   objection  to   offer   of  proof); Lamar  F.   v.  State,  Dep't   of  Health   &  Soc.  

Servs.,  Div.   of  Family   &   Youth  Servs.,  No.   S-11092,  2019  WL   68019,   at   *3   (Alaska  

Jan.  14,  2004)  (offer  of  proof  accepted  by  counsel);  E.H.  v.  State,  Dep't  of  Health  & Soc.  

Servs.,  Div.  of  Family  &  Youth  Servs.,  23  P.3d  1186,  1187  (Alaska  2001)  (no  indication  

of  objection  to  offer  of  proof);  In  re  Inquiry   Concerning a Judge, 788  P.2d  716,  721  

(Alaska  1990)  (parties  stipulated  to  offer  of  proof);  Edinger  v.  State,  598  P.2d  943,  944- 

                                                                                                                                                                                                (continued...)  



                                                                                                              -6-	                                                                                                    7429
  


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

a trial on the disputed issues. Norman's attorney was present and did not accept the offer                                                                                                                                                                                                                                      



of proof.   She wanted to move forward with a trial.                                                                                                                                                       It was therefore error to allow the   



 State to proceed with an offer of proof and to terminate Norman's parental rights on                                                                                                                                                                                                                                                   



those grounds.                                             We vacate the termination order and remand for further proceedings.                                                                                                                                                             



                                                    Because we vacate the termination order on these grounds, we need not                                                                                                                                                                                                             



address Norman's other arguments.                                                               



V.                        CONCLUSION  



                                                    Because it was improper for the court to accept the offer of proof given the                                                                                                                                                                                                       



objection by Norman'sattorney,weVACATEthesuperior court's                                                                                                                                                                                                      termination order and   



REMAND for further proceedings.                                                         



                          4                          (...continued)  



                                                                                                                                                                                                                          ONES ON                                  EVIDENCE   1:3 (7th                                            

45 (Alaska 1979) (attorney accepted offer of proof); cf. 1 J 

ed. 2019) (parties must agree to stipulation as substitute for evidence); 1 M                                                                                                                                                                                                                           CCORMICK  

            EVID.  2 (8th ed. 2020) (same).                                                                  

ON  



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