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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Amy S. v. State of Alaska, DHSS, OCS (4/26/2019) sp-7358

Amy S. v. State of Alaska, DHSS, OCS (4/26/2019) sp-7358

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

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

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

          corrections@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



AMY  S.,                                                       )  

                                                               )   Supreme Court No. S-17008  

                                                                                                

                             Appellant,                        )  

                                                               )   Superior  Court  No.  3PA-17-00055  CN  

          v.                                                   )  

                                                                                     

                                                               )   O P I N I O N  

                                   

STATE OF ALASKA, DEPARTMENT                                    )  

                                                                                                  

                                        

OF HEALTH & SOCIAL SERVICES,                                   )  No. 7358 - April 26, 2019  

                                           

OFFICE OF CHILDREN'S SERVICES,                                 )  

                                                               )  

                             Appellee.                         )  

                                                               )  



                                                                                                   

                                

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

                                                                                                

                   Judicial  District,  Palmer,  Honorable  Vanessa  H.  White,  

                   Judge.  



                                                                                                            

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

                                                                                          

                   Laura Fox, Senior Assistant Attorney General, Anchorage,  

                                                                                                     

                   and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                   Appellee.  



                                                                                             

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

                                       

                   and Carney, Justices.  



                                      

                   WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                             

                   A mother appeals the superior court's decision adjudicating her child as a  



                                                                                                                         

child in need of aid, contending that the court relied in part on the record from her  



                                                                                                                           

previous custody proceeding without giving her prior notice. The mother argues that by  


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not giving                    her   notice,   the court violated                                                 her   due process rights.                                            Relying   on   cases  



involving judicial bias, she then claims that the superior court's due process violation                                                                                                                      



warrants automatic reversal of the court's adjudication finding, or, alternatively, reversal                                                                                                                      



on the basis that the error was not harmless.                                               



                                   We assume - without deciding - that the superior court violated the                                                                                                                        



mother's due process rights, but we affirm the adjudication decision because she has                                                                                                                                         



failed to demonstrate that this alleged error was anything but harmless.                                                                                            



II.               FACTS AND PROCEEDINGS                   



                  A.                Emergency Petition For Adjudication                                   

                                                                                            1  took her son, Zoltan - age 11 and an Indian child  

                                    In June 2017 Amy S.                                                                                                                                                                  

under the Indian Child Welfare Act (ICWA)2  - to a hospital emergency room.  Zoltan  

                                                                                                                                                                                                                    



was experiencing homicidal and suicidal ideation, and hospital doctors determined he  

                                                                                                                                                                                                                                



met the criteria for admission.   Jack, Zoltan's father, had legal custody, and Jack's  

                                                                                                                                                                                                                     



consent was needed for medical treatment.  Jack refused consent because he believed  

                                                                                                                                                                                                               



there was no private insurance coverage for the $2,000 per day treatment, and he wanted  

                                                                                                                                                                                                                   



time  to  figure  out  how  to  pay  for  it.                                                                    Zoltan  nonetheless  was  admitted,  and  the  

                                                                                                                                                                                                                             



Department of Health and Social Services, Office of Children's Services (OCS) filed an  

                                                                                                                                                                                                                                



emergency   petition   for   a   child   in   need   of   aid   (CINA)   adjudication   under  

                                                                                                                                                                                                                    

AS 47.10.011(4)3  and for temporary custody.  OCS noted in its petition that Jack and  

                                                                                                                                                                                                                            



Amy were involved in a "contentious" custody dispute and recounted some of OCS's  

                                                                                                                                                                                                                    



                  1                We  use  pseudonyms  to  protect  the  parties'  privacy.  



                  2                See  25  U.S.C.     1903(4)  (2012)  (defining  "Indian  child").   



                  3                AS  47.10.011(4)  provides  that  a  "court  may  find  a  child  to  be  a  child  in  



need  of  aid  if  it  finds  by  a  preponderance  of  the  evidence  that  the  child  .  .  .  is  in  need  of  

treatment  for  mental  injury  and  the  child's  parent  .  .  .  has  knowingly  failed  to  provide  the  

treatment."  



                                                                                                                -2-                                                                                                      7358
  


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history with the family, including 18 OCS reports filed against Jack and 5 against Amy.                                                                                                            



But OCS also noted that the vast majority of the reports were unsubstantiated.                                                                                                   



               B.             Probable Cause Hearing                 



                                                                                                                                                                               4  

                                                                                                                                                                                          

                              The superior court held a probable cause hearing over three days.                                                                                    At the  



                                                                                                                                                                                      

beginning of the hearing the court referenced its prior participation in the parents' child  



                                                                                                                                                                                          

custody case, stating:  "There's been a long, protracted custody dispute between the  



                                                                                                                                                                                     

parties.  Under House Bill 200, that's actually a good thing, because we can hear some  



                                                                                                                                                        5  

                                                                                                                                                                            

of the issues involving [Zoltan] simultaneously in both of the cases."                                                                                      On the hearing's  



                                                                                                                                                                                   

third  day,  Jack  agreed  to  stipulate  that  Zoltan  was  a  child  in  need  of  aid  under  



                                       6  

                                                                                                                                                                                              

AS 47.10.011(8)                            so that  he  could  continue receiving psychological treatment in  a  



                                                                                                                                                                                           

therapeutic group home.  Jack had not yet determined whether Zoltan would qualify for  



                                                                                                                                                                                  

insurance if he were discharged from OCS's custody, and Jack thought it best Zoltan  



                                                                                                                                    

remain in OCS's custody to continue receiving treatment.  



               4              See  AS 47.10.142(e) ("When the temporary custody hearing is held, the                                                                         



court shall determine whether probable cause exists for believing the child to be a child                                                                                            

in need of aid . . . .").               



               5              This appearsto referenceAS47.10.113, which became effectivein January  

                                                                                                                                                                                

2017.  See Enrolled House Bill (H.B.) 200, 29th Leg., 2d Sess. (2016)  7, 22.  Alaska  

                                                                                                                                                                                  

Statute 47.10.113 provides that, "[e]xcept as provided in AS 25.24.150(a), a court shall  

                                                                                                                                                                                       

hear a request to make, modify, or vacate an order for the custody of or visitation with  

                                                                                                                                                                                       

a minor child in state custody under this chapter as part of the [CINA] proceedings  

                                                                                                                                                                      

relating to the child."  

                                 



               6              Alaska Statute 47.10.011(8) allows the court to find a child to be a child in  

                                                                                                                                                                                             

need of aid if it finds, by a preponderance of the evidence, that "conduct by or conditions  

                                                                                                                                                                          

created by the parent . . . have . . . resulted in mental injury to the child . . . or placed the  

                                                                                                                                                                                           

child  at  substantial  risk  of  mental  injury  as  a  result  of  [specific  types  of  parental  

                                                                                                                                                                              

behavior]."  



                                                                                             -3-                                                                                      7358
  


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                                                                      The  court  then  found  Zoltan to  be  a  child  in  need  of  aid  under  subsection  



 (8) based on  Jack's  stipulation, "allegations  in [OCS's] petition and . . . recent motion  



practice   .   .   .  in  the  domestic  relations  case."   The  judge  asserted:   "I  could  make  th[e]  



probable  cause  finding  just  by  .  .  .  taking  judicial  notice  of  the  domestic  relations  file  and  



under HB 200, I can do that.                                                                                                                       I can take judicial notice of the domestic relations file, and                                                                                                                                                                                                                            



I'm expected and truly required to take notice of that file."                                                                                                                                                                                                                                                    



                                   C.                                Adjudication Hearing   



                                                                      The superior court held a contested adjudication hearing in September and                                                                                                                                                                                                                                                                                              



November 2017. OCSpresented                                                                                                                                             testimony fromseveralwitnessesabout                                                                                                                                                                      Amy's conduct  



 and its effect on Zoltan, and Amy called her therapist to testify on her behalf.                                                                                                                                                                                                                                                                                                                                 



                                                                      1.                                OCS's evidence   



                                                                     Zoltan's therapistexpressed                                                                                                                     concernthat Amy appears to rely on Zoltan                                                                                                                                                                                  for  



 comfort and that this could cause him difficulty building relationships later in life.                                                                                                                                                                                                                                                                                                                                                 



Zoltan's caseworker shared this concern, testifying that she thought Amy was having                                                                                                                                                                                                                                                                                                                                        



 "her emotional needs met by [Zoltan rather than] meeting his emotional needs."                                                                                                                                                                                                                                                                                                                                                        The  



 caseworker also testified to concerns that, if Zoltan were returned to Amy's custody,                                                                                                                                                                                                                                                                                                                            



Amy would be emotionally manipulative and encourage Zoltan to disengage from his                                                                                                                                                                                                                                                                                                                                                               



 father.   The caseworker said that Amy had attempted to manipulate Zoltan while in his                                                                                                                                                                                                                                                                                                                                                         



residential treatment facility by telling him that his dog was very sick and needed to be                                                                                                                                                                                                                                                                                                                                                          



put down, when that was not true.                                                                                                                                              This caused Zoltan to run away to try to see the dog.                                                                                                                                                                                                                                 



 The caseworker also claimed that Amy talked to Zoltan on the phone while he was at                                                                                                                                                                                                                                                                                                                                                                  



 school in violation of the facility's rules. The caseworker suspected that Zoltan's recent                                                                                                                                                                                                                                                                                                                                     



 disengagement from phone calls with his father was the result of Amy's calls.                                                                                                                                                                                                                                                                                                                                              In the   



 caseworker's opinion, Amy's and Jack's inability to co-parent had directly contributed                                                                                                                                                                                                                                                                                                             



to   Zoltan's mental health issues,                                                                                                                                                  and  neither   parent had                                                                                                   taken   steps to                                                                address the   



problem as of the adjudication hearing.                                                                                                                                                                      



                                                                                                                                                                                                                         -4-                                                                                                                                                                                                           7358
  


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                    A  mental  health  clinician  testified  about  her  experience  supervising  



                                                                                                                        

therapeutic visitation sessions between Zoltan and his parents.  The clinician testified  



                                                                                                                          

that, despite being asked by OCS not to discuss Zoltan's dog, Amy continued to discuss  



                                                                                                                                 

the dog during almost every visit.  She testified that Amy once told Zoltan that, if he  



                                                                                                                            

wanted, she would let him live with Jack.  The clinician interpreted this as Amy trying  



                                                                                                                           

to create a negative impression of Jack by implying that he does not respect what Zoltan  



                                                                                                                           

wants. The clinician said that Amy struggled to take responsibility for her actions during  



                                                                                                                               

their sessions together, instead focusing on things Jack had done wrong in the past.  The  



                                                                                                                               

clinician also said she heard Zoltan state that his father has a history of violence and that  



                                                                                                                        

he knew this because Amy had told him.  This statement was consistent with previous  



                                                                                                          

concerns that Amy had coached Zoltan to report abuse by his father.  



                                                                                                                          

                    A psychiatric nurse who supervised a visit between Zoltan and his parents  



                                                                              

when he was in the hospital testified that he made accusations against his father based  



                                                                                                                            

on incidents that happened before Zoltan was born.  When Amy was questioned about  



                                                                                                                 

these accusations, she said that she could not control whether Zoltan read "documents"  



                                                                                                                   

she had in the house. The nurse was concerned that Amy was telling Zoltan information  



                                                                              

about his father that he should not have been told.  



                                                                                                                               

                    A social worker OCS hired to write an expert report testified that she  



                                                                                                                      

thought Amy and Zoltan had an "enmeshed relationship" and that Amy was alienating  



                                                                                                                              

Zoltan from Jack. The expert report summarizes OCS's history with Zoltan dating back  



                                                                                                                        

to 2009, Amy and Jack's custody case, and domestic violence protective order petitions  



                                                                                                                          

Amy filed.  The expert testified that protective services reports previously filed against  



                                                                                                                               

Jack may have been "early signs" Amy was trying to alienate Zoltan from Jack.  Her  



                                                                                                                                 

report states that there was evidence Amy may have coached Zoltan to report abuse by  



                                                                                       

Jack.  The expert testified that Amy's failure to comply with boundaries OCS set after  



                                                                                                                                

assuming custody of Zoltan -by giving himgifts, having unauthorized phone calls, and  



                                                                -5-                                                         7358
  


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

                                                                                                                              

sharing photos with him - set up an "unequal playing field" for Jack as the parent who  



                                                                                                                               

complied with OCS's rules.  The expert also testified that there was evidence Amy was  



                                                                                  

encouraging Zoltan's negative feelings toward OCS.  



                                           

                    2.        Amy's evidence  



                                                                                                                               

                    Amy's therapist testified on her behalf.  The therapist acknowledged that  



                                                                                                                               

Amy had exhibited poor boundaries in her interactions with Zoltan in the past but said  



                                                                                                                     

that Amy was making progress in therapy. The therapist testified that she had diagnosed  



                                                                                                                             

Amy  with  adjustment  disorder  and  major  depressive  disorder.                                    The  therapist  gave  



                                                                                                                            

conflicting answers when asked whether Amy could "safely parent" Zoltan.  On direct  



                                                                                                                          

examination the therapist testified that she thought Amy could safely parent Zoltan  



                                                                                                                           

"[w]ith  a  little  more  parenting  information  and  classes  and  practice."                                     On  cross- 



                                                                                                                                

examination she clarified that "[a]s of today, I think [Amy] would be a safe parent" but  



                                                                                                                               

that "I think [Amy] could be a better parent if she had more information as well."  



                                                                                                                     

                    The superior court stated it was not giving Amy's therapist's testimony  



                                                                                                                          

much weight for several reasons.   The court was not convinced the therapist "ha[d]  



                                                                                                                           

undertaken all of the steps that would be necessary to determine whether there [we]re  



                                                                                                                               

any personality disorders at play."  The court specifically asserted that the therapist had  



                                                                                                                                   

failed to conduct "paper and pencil testing, psychometric testing of [Amy] which is a  



                                                                                                                             

standard part of the repertoire for comprehensive psychological evaluation."  The court  



                                                                                                                                 

further noted that the therapist is not a clinical psychologist, may have a conflict as  



                                                                                                                           

Amy's therapist, and gave equivocal answers when asked about Amy's ability to parent  



                                                 

safely.  The court also thought the therapist's opinion was "based on a limited amount  



                                       

of information," noting:  



                                                                                                           

                     [T]he records that [the therapist] said she has reviewed did  

                                                                                                   

                    not include the very voluminous pleadings in the domestic  

                                                                                                             

                    relations case.  I have been working with this family for 10  

                                                                                                   

                    years. I don't claim to have the qualifications or the expertise  



                                                                -6-                                                         7358
  


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                                                                              of someone of [the therapist's] caliber, but I have a lot more                                                                                                                                                                                                                                                            

                                                                              factual information about this family than I suspect she does.                                                                                                                                                                                                                                                             

                                                                             And the legislature's told me to use that in House Bill 200.                                                                                                                                                                                                                                                                                            



                                                                             3.                                     The court's findings                                                     



                                                                              The court issued oral findings at the close of the hearing. It concluded that                                                                                                                                                                                                                                                                                                                                   



Zoltan "is no doubt a child in need of aid [under subsection (8)] because of mental injury                                                                                                                                                                                                                                                                                                                                                                                        



that has been caused both by the inability of the parents to co-parent and by [Amy's]                                                                                                                                                                                                                                                                                                                                



 ongoing hatred and acrimony with respect to [Jack] that she has passed on to her son."                                                                                                                                                                                                                                                                                                                                                                                                                                   



The court noted that "the primary problemthat has created such significant mental health                                                                                                                                                                                                                                                                                                                                                                                        



problems for [Zoltan] is [Amy's] current inability and past inability to acknowledge that                                                                                                                                                                                                                                                                                                                                                                                                      



both [Jack] and [Amy] have an important role to play in parenting [Zoltan]."                                                                                                                                                                                                                                                                                                                                                                                   



                                                                              The court pointed to two specific facts in support of its conclusions.                                                                                                                                                                                                                                                                                                                               First,  



it agreed with the conclusions contained in the expert's report, discussing in detail                                                                                                                                                                                                                                                                                                                                                                                            



parental   alienation   and  actions  Amy   had   taken   that   could   have   resulted   in   such  



 alienation.   Second, the court also mentioned Amy's "porous boundaries," providing as                                                                                                                                                                                                                                                                                                                                                                                                                 



 an example the incident the mental health clinician recounted in which Amy told Zoltan                                                                                                                                                                                                                                                                                                                                                                                       



that, if he wanted, she would let him live with Jack.                                                                                                                                                                                                                                                      The court referred to the comment                                                                                                                  



 as "a terrifying proposition" for Zoltan, because after years of Amy telling him that she                                                                                                                                                                                                                                                                                                                                                                                                      



was the safe parent, she was suggesting that she would "just abandon" him to Jack.                                                                                                                                                                                                                                                                                                                                                                                                                  



                                       D.                                    Amy's Motion For Findings Of Fact And Conclusions Of Law                                                                                                                                                                                                                                                                                                           



                                                                              In  January   2018   Amy   filed a motion                                                                                                                                                                                          requesting   "findings of fact and                                                                                                                                         



 conclusions of law made by th[e] court in support of the finding that [Zoltan was] a child                                                                                                                                                                                                                                                                                                                                                                                     



in need of aid."                                                                               She argued that the court did not specify which facts it relied on in                                                                                                                                                                                                                                                                          

 support of its oral findings, as required by Alaska Civil Rule 52(a).7  She contended it  



                                       7  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                             Rule 52(a) provides:  "In all actions tried upon the facts without a jury or  

                                                                                                                                                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                                                                                                   -7-                                                                                                                                                                                                                                                              7358  


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

was clear that the court had in part relied on its knowledge of Jack and Amy's custody                                                                                                                                                                                                                                        



case and, other than Jack's attorney, the attorneys in the case were not "privy to those                                                                                                                      



proceedings."  Amy argued that the court appeared to have taken judicial notice of the                                                                                                                                                                                                                                                            



custody case file and that the facts the court relied on from the custody file exceeded the                                                                                                                                                                                                                                                        



permitted scope of judicial notice under Alaska Evidence Rule 201.                                                                                                                                                                                                                                OCS took no                                      



position on the motion.                                                                         



                                                      In June the superior court issued a summary of the factual findings from                                                                                                                                                                                                            



Jack and Amy's custody case that informed its decision to adjudicate Zoltan as a child                                                                                                                                                                                                                                                



in need of aid.                                            The summary does not discuss the CINA case; the court merely recounts                                                                                                                                                                                            



 some of the custody case proceedings that occurred between 2007 and 2017, briefly                                                                                                                                                                                                                                                 



discussing the various pleadings, custody investigation reports, and oral and written                                                                                                                                                                                                                                            



findings.   Almost none of the specific facts contained in the summary were referenced                                                                                                                                                                                                                             



during the adjudication hearing.                                                                                                    



                                                      Amy appeals the superior court's adjudication order on the basis that the                                                                                                                                                                                                                   



court's consideration of facts from her custody case violated her procedural due process                                                                                                                                                                                                                                        



rights.  She does not challenge any of the superior court's underlying factual findings.                                                                                                                                                                                                                                                                         



III.                        STANDARD OF REVIEW                                                        



                                                      "Whether due process rights are violated in a CINA case is a question of  



law that this court reviews de novo, adopting 'the rule of law that is most persuasive in  

                                                                                                                                                                                                                                                                                                                                                       

light of precedent, reason and policy.' "8                                                                                                                                    Even if we conclude that an error has been  

                                                                                                                                                                                                                                                                                                                                           



                           7                          (...continued)  



                                                                                                                                                                                                                                                                                                                                                    

with an advisory jury, the court shall find the facts specially and state separately its  

                                                                              

conclusions of law thereon."  



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

                                                                                                                                                                                                                                                                                                                                    

264 P.3d 842, 846 (Alaska 2011) (quoting Jeff A.C., Jr. v. State, 117 P.3d 697, 702  

                                                                                                                                                                                                                                                                                                                                              

(Alaska 2005)).  

                                                                  



                                                                                                                                                                          -8-                                                                                                                                                              7358
  


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

committed, "[w]e must disregard harmless errors that have no substantial effect on the                                                                                                                   

rights of parties or on the outcome of the case."                                                                  9  



IV.	            DISCUSSION  



                                                                                                                                                                                                         

                A.	             We Review Amy's Claim De Novo Because She Did Not Have An  

                                                                                                                                            

                                Opportunity To Raise It In The Superior Court.  



                                                                                                                                                                                 

                                OCS argues that Amy did not challenge the superior court's consideration  



                                                                                                                                                                                                         

of custody case information in the adjudication proceeding, despite the court giving her  



                                                                                                                                                                                                

"ample notice of [its] intent  to  consider the custody file," and thus that we should  



                                                                                                                                                                                            

consider Amy's argument only if we find plain error.  We generally "will not consider  



                                                                                                                                                                                                   

arguments that were not raised below, unless the issues establish plain error, or the issues  



                                                                                                                                                                                                        

(1) do not depend upon new facts, (2) are closely related to other arguments at trial, and  



                                                                                                                      10  

                                                                                                                                                                                                       

                                                                                                                            "[P]lain error exists in a CINA case  

(3) could have been gleaned from the pleadings." 



                                                                                                                                                                                            

where 'an obvious mistake has been made which creates a high likelihood that injustice  



                                     11  

                                  

has resulted.' "                           



                9	              See Luther v. Lander                              , 373 P.3d 495, 499 (Alaska 2016) (quoting                                                              Pedersen  



v.  Blythe, 292 P.3d 182, 184 (Alaska 2012));                                                                see also             Alaska R. Civ. P. 61 ("The court                                   

at every stage of the proceeding must disregard any error or defect in the proceeding                                                                                                

which does not affect the substantial rights of the parties."); CINA Rule 1(e) (providing                                                                                              

that Civil Rule 61 applies to CINA proceedings).                                      



                10              Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32  

                                                                                                                                                                                                          

P.3d 346, 351 (Alaska 2001).  

                                                        



                11              State, Dep't of Health &Soc. Servs., Office of Children's Servs. v. Michelle  

                                                                                                                                                                                            

P., 411 P.3d 576, 586 (Alaska 2018) (alteration in original) (quoting Kyle S. v. State,  

                                                                                                                                                                                      

Dep't of Health &Soc. Servs., Office of Children's Servs., 309 P.3d 1262, 1267 (Alaska  

                                                                                                                                                                                              

2013)).  



                                                                                                     -9-	                                                                                            7358
  


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

                        But "an objection is not required to preserve an issue for appeal if the                                                        



                                                                                                                  12  

appealing   party   had   no   opportunity   to   make   an   objection."                                                                           

                                                                                                                        Under  Alaska  Civil  



                                                                                                                                                           

Rule 46(f), "if a party has no opportunity to object to a ruling or order at the time it is  



                                                                                                                                            

made, the absence of an objection does not thereafter prejudice the party."  In  Vent v.  



                                                                                                                                                    

State  the  court  of  appeals  applied  Rule  46(f)  and  held  that  an  applicant  for  post- 



                                                                                                                                             

conviction relief preserved a due process claim for appellate review because there had  



                                                                                                                                                         

been no opportunity to object to the superior court's consideration of material outside the  

             13    The applicant did not discover that the judge had conducted independent  

record.                                                                                                                                

research until the judge issued written findings.14  

                                                                       



                        OCS points to four instances of the court referencing the custody file and  

                                                                                                                                                        



argues that Amy should have objected following those references.  The first two times  

                                                                                                                                            



the court mentioned the custody case, it was referring to (1) its ability to consider  

                                                                                                                                              



custody issues in the CINA case under AS 47.10.113 and (2) the fact that it could not  

                                                                                                                                                        



facilitate a settlement conference between the parties because of its history with them.  

                                                                                                                                                                



Neither example reflects an intent to use the custody file to determine whether Zoltan  

                                                                                                                                                  



was a child in need of aid.  

                                                   



                        The court then referenced the custody case while making oral probable  

                                                                                                                                              



cause findings; the court made clear that it was taking judicial notice of and using the file  

                                                                                                                                                        



- in conjunction with the allegations in the petition - to find that Zoltan was a child  

                                                  



in need of aid. But taking judicial notice of the existence of ten years of custody disputes  

                                                                                                                                               



is different than taking judicial notice of specific facts, pleadings, and testimony fromthe  

                                                                                                                                                         



custody case; the latter action is what Amy challenges. Because the court's oral probable  

                                                                                                                                              



            12           Vent v. State         , 288 P.3d 752, 755 (Alaska App. 2012).                        



            13          See id.      at 756.   



            14          Id.  at 755.   



                                                                           -10-                                                                     7358
  


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

cause finding did not discuss the underlying facts of which notice was being taken, Amy                                                                                                                                                      



had no adequate opportunity to object.                                                       



                                       OCS also asserts that the court "made clear that [it] relied on the custody  



file" when making its oral adjudication findings.                                                                                             But the oral adjudication findings did                                                              



not   refer   to   specific   facts  from   the   custody   case   or   indicate   that   the   court   was  



incorporating its probable cause findings at the adjudication hearing.                                                                                                                                     And the court's            



later "summary of factual findings" reveals that it relied not only on the custody case file                                                                                                                                                      



but also on domestic violence proceedings over which it did not preside and which had                                                                                                                                                           



never been referenced at the hearing.                                                                        



                                       This case is analogous to                                                Vent  because, like that case's applicant for post-                                                                         



conviction relief, Amy did not discover the evidence the superior court relied on until it                                                                                                                                                             

                                                                      15      Because Amy could not have raised her due process claim  

issued written findings.                                                                                                                                                                                                                  



before the superior court, we hold that she preserved it for appellate review and we will  

                                                                                                                                                                                                                                                



consider it de novo.  

                                                           



                   B.	                 Alaska Statute 47.10.113 Does Not Require The Superior Court In A  

                                                                                                                                                                                                                                                     

                                       CINA  Case  To  Take  Judicial  Notice  Of  Matters  From  Previous  

                                                                                                                                                                                                                              

                                       Custody-Related Proceedings.  

                                                                                             



                                       The superior court appears to have taken judicial notice of the custody case  

                                                                                                                                                                                                                                               



information includedin itssummary offactual findings becauseAS47.10.113"required"  

                                                                                                                                                                                                                             



it to consider that information when making its CINA findings.  A statute requiring a  

                                                                                                                                                                                                                                                       



court to consider particular evidence without first providing the parties notice and giving  

                                                                                                                                                                                                                                         



them an opportunity to respond to the evidence would raise constitutional due process  

                                                                                                                                           



                    15                 See id.  

                                                   



                                                                                                                        -11-	                                                                                                                           7358  


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

                                           16  

 concerns.                                            We   thus   examine   the   statute's   text   to   determine   whether   the   court's  



 interpretation is correct.                                              



                                                            Alaska Statute 47.10.113(a) provides that "a court shall hear a request to                                                                                                                   



make, modify, or vacate an order for the custody of or visitation with a minor child in   



 state custody under this chapter as part of the [CINA] proceedings relating to the child."                                                                                                                                                                                                                                                                                                           



 The statute's imperative command is that a superior court must consider custody-related                                                                                                                                                                                                                                     



 motions  in a CINA proceeding, not that it has to take into account matters from past                                                                                                                                                                                                                                                                                         



 custody proceedings. The statute leaves unaltered CINA Rule 9(a), which provides that                                                                                                                                                                                                                                                                                           



the Evidence Rules apply to adjudication hearings.                                                                                                                                                                                   



                                                            Legislative history suggests that the statute was intended as a procedural                                                                                                                                                                                                   



 change to eliminate the requirement of bringing a separate action to determine child                                                                                                                                                                                                                                                                                     



 custody.     There   is   no   indication   that   the   legislature   intended   to   reduce   or   change  



 applicable burdens of proof in a CINA case or to change the types of evidence that courts                                                                                                                                                                                                                                                                             



must consider.                                                        OCS's director testified that the law was intended "to streamline a                                                                                                                                                                                                                                                  



number of different legal decisions that could impact a child in the state child welfare                                                                                                                                                                                                                                                                        

                                       17  Beforethelawwas passed,"adoption,guardianship, andcivil custody matters  

 system."                                                                                                                                                                                                                                                                                                                                                         



 all happened in different courts, often with different judges and at different times, which  

                                                                                                                                                                                                                                                                                                                                                                      



 often  created  redundancies  and  delays  for  the  involved  parties  in  the  quest  for  

                                                                                                                                                                                                                                                                                                                                                                                 



                              16                            See Sarah A. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                                                                                                                            



Servs., 427 P.3d 771, 778 (Alaska 2018) ("The crux of due process is [having the]                                                                                                                                                                                                                                                                                              

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

Dennis O. v. Stephanie O.                                                                                            , 393 P.3d 401, 406 (Alaska 2017) (alteration in original))).                                                                                                                                                           



                              17                            Minutes, House Health & Soc. Servs. Comm. Hearing on H.B. 200, 29th  

                                                                                                                                                                                                                                                                                                                                                                              

 Leg., 1st Sess. 3:06-3:14 (Mar. 29, 2016) (testimony of Christy Lawton, Director of  

                                                                                                                                                                                                                                                                                                                                                                                       

 OCS), http://www.legis.state.ak.us/PDF/29/M/HHSS2016-03-291503.PDF.  

                               



                                                                                                                                                                                         -12-                                                                                                                                                                                7358
  


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

permanency for the child."18  The new law allowed "all the hearings [to] be conjoined                                                    



under a CINA hearing" so that the judge hearing the case would "be [the] most informed                                                          

                                                                                                                   19    An assistant attorney  

and best equipped to provide a good judicial determination."                                                                                     



general in the Department of Law's child protection section clarified that the statute  

                                                                                                                                                     



would not create new types of proceedings, but rather it would expand "the types of  

                                                                                                                                                             

orders that the [CINA] judge would be able to issue."20                                                      The ICWA coordinator for  

                                                                                                                                                           



Aleutian Pribilof Islands Association testified that the law would "eliminate complicated  

                                                                                                                                           



procedural barriers in the adoption process for children in custody so that Alaska Native  

                                                                                                                                                     



families can be considered for adoption through the [CINA] proceedings instead of  

                                                                                                                                                             

through an entirely different and convoluted proceeding held in Probate Court."21                                                                        The  

                                                                                                                                                          

chief operating officer of Cook Inlet Tribal Council expressed a similar sentiment.22  

                                                                                                                                                             



                         We note that although courts are not required to consider matters from past  

                                                                                                                                                          



custody-related proceedings in a CINA case, they may do so if the information is offered  

                                                                                                                                                    



             18          Id.  



             19          Id.  



            20           Minutes, Sen. Jud. Comm. Hearing on H.B. 200, 29th Leg., 2d Sess. 4:13-                                                       



4:17        (May          25,      2016)         (testimony              of     Carla        Erickson,             Assistant   Att'y                 Gen.),  

http://www.legis.state.ak.us/PDF/29/M/SJUD2016-05-251541.PDF.  



            21           Minutes, House Health & Soc. Servs. Comm. Hearing on H.B. 200, 29th  

                                                                           

Leg.,  1st  Sess.  6:27-6:31  (Mar.  29,  2016)  (testimony  of  Amanda  McAdoo,  ICWA  

                                                                                                                                                    

Coordinator, Aleutian Pribilof Islands Ass'n., Inc.),  http://www.legis.state.ak.us/PDF/  

                                                                                                  

29/M/HHSS2016-03-291806.PDF.  



            22           Minutes, House Jud. Comm. Hearing on H.B. 200, 29th Leg., 1st Sess.  

                                                                                                                                                       

 1:42-1:45  (Apr.  12,  2016)  (testimony  of  Cristy  Willer,  COO  of  Cook  Inlet  Tribal  

                                                                                                                                                     

Council), http://www.legis.state.ak.us/PDF/29/M/HJUD2016-04-121307.PDF (stating  

                                                                                                                                                   

that the law "removes barriers for Alaska Native families who want to adopt . . . children  

                                                                                                                                                  

who are connected to them by family or tribal membership").  

                                                                                       



                                                                            -13-                                                                       7358
  


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

in compliance with applicable evidence rules.                                                                                For example, under Alaska Evidence                                          



Rule 201(b), a court may take judicial notice of facts "not subject to reasonable dispute"                                                                                                                  



that are "(1) generally known within this state or (2) capable of accurate and ready                                                                                                                              



determination by resort to sources whose accuracy cannot reasonably be questioned."                                                                                                                                                 



Court records, like the custody proceeding records in this case, may be judicially noticed                                                                                                                     

                                                                                                                                                                                       23   But contested  

to show "that a prior suit was filed, who the parties were, and so forth."                                                                                                                               



factual findings contained in court records may be in dispute and generally are not the  

                                                                                                                                                                                                                          

proper subjects of judicial notice.24  

                                                                      



                                   Even if information from a custody-related proceeding is not the proper  

                                                                                                                                                                                                                



subject of judicial notice, it still may be admitted into evidence in a CINA proceeding.  

                                                                                                                                                                                                                                    



For example, a parent's prior statements in a custody-related proceeding potentially  

                                                                                                                                                                                                     

                                                                                                                                                                                        25       A statement  

could be used to impeach the parent's testimony in the CINA case.                                                                                                                                       

                                                                                                                                                                          



included in a parent's custody-related pleading or affidavit might beadmissibleas aparty  

                                                                                                                                                                                                                   

                            26   Or if a parent were "unavailable" within the meaning of Rule 804(a), prior  

admission.                                                                                                                                                                                                           



testimony froma custody-related proceeding could be admitted if it met the requirements  

                                                                                                                                                                                                



of Rule 804(b)(1).  

                     



                 23                F.T. v. State                   , 862 P.2d 857, 864 (Alaska 1993).                                        



                 24  

                                                                                                                                                                                                                        

                                   See id.; accord Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir.  

                                                                                                                                                                                                                   

2001) (holding it was error to take judicial notice of contested facts in public court  

                                          HARLES  ALAN WRIGHT   & A                                                 RTHUR   R. M                     ILLER, F              EDERAL   PRACTICE   &  

records); 21B C 

PROCEDURE    5106.4 (2d ed. 1987) (stating most courts have held it improper under                                                                                                                               

FederalRules                        ofEvidenceto takejudicial notice of factual findings fromprevious cases).                                                                                                   



                 25                See AlaskaR.Evid.613(a) ("Prior statementsofawitness inconsistent with  

                                                                                                                                                                                                                      

the testimony of the witness at a trial, hearing or deposition[] . . . are admissible for the  

                                                                                                                                                                                                                         

purpose of impeaching the credibility of a witness.").  

                                                                                                              



                 26                See Alaska R. Evid. 801(d)(2)(A) ("A statement is not hearsay if . . . [t]he  

                                                                                                                                                                                                                  

statement is offered against a party and is . . . the party's own statement . . . .").  

                                                                                                                                                                                                  



                                                                                                           -14-                                                                                                     7358
  


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

             C.	           Even Assuming Amy's Procedural Due Process Rights Were Violated,                                                               

                           She Has Shown No Prejudice.               



                           The right to procedural due process includes the right to "a reasonable                                                     



                                                                                                                                               27  

opportunity to know the claims of the opposing party and to meet them."                                                                                         

                                                                                                                                                    Amy argues  



                                                                                                                                    

that the superior court denied her that right when it failed to give her notice of, and an  



                                                                                                                                                                

opportunity to respond to, custody case facts the court relied on in adjudicating Zoltan  



                                                                                                                                          

as a child in need of aid.  We assume, without deciding, that Amy is correct.  



                                                                                                                                                                      

                           But even if there were a due process violation in this case, we are not  



                                                                                                                                                                        

persuaded  that  Amy  was  harmed  by  it.                                              Amy  fails  to  make  a  plausible  claim  of  



                    28                                                                                                                          29  

                                                                                                                                                                          

prejudice.                She cites, but does not apply, the relevant due process test.                                                              And after a  



                                                                                                                                                                        

careful reading of Amy's brief, we find only two statements conceivably relating to  



             27	           Gonzales v. United States                         , 348 U.S. 407, 414 n.5 (1955) (quoting                                        Morgan  



v.   United States              , 304 U.S. 1, 18 (1938)).           



             28            See Sarah A. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                       

Servs., 427 P.3d 771, 780 (Alaska 2018) ("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 conduct.' " (quoting D.M. v. State, Div. of Family &Youth Servs., 995  

                                                                                                                                                                     

P.2d 205, 210-11, 213 (Alaska 2000))).  

                                                               



             29            This court considers the factors set out by the United States Supreme Court  

                                                                                                                                                                  

in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to determine what process is due:  

                                                                                                                                                                           



                           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 entail.  

                                                                                                                                      



Sarah A., 427 P.3d at 778 (quoting D.M., 995 P.2d at 212).  

                                                                                                            



                                                                                  -15-	                                                                           7358
  


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

whether she was prejudiced by her inability to contest the custody case evidence.  She                                                                                                      



claims that the superior court "discounted the testimony of Amy's expert witness based                                                                                                                              



on information outside the record" and that the court "drew inferences against Amy                                                                                                                                   



based on . . . un-noticed facts."                                

                                                                                                                                                                                                                 30     The  

                                   Neither claim is sufficient to raise a "plausible" claim of prejudice.                                                                                                               



superior court discountedAmy'stherapist'stestimony for severalreasons havingnothing  

                                                                                                                                                                                                               



to do with evidence outside the record.  The court noted that the therapist had failed to  

                                                                                                                                                                                                                             



conduct "standard" psychometric testing, had an inherent conflict of interest based on  

                                                                                                                                                                                                                            



her relationship with Amy, and gave equivocal answers when asked about Amy's ability  

                                                                                                                                                                                                                  



to safely parent Zoltan.  Even if the court had not discounted the therapist's testimony,  

                                                                                                                                                                                                       



it is unclear that the testimony actually was helpful to Amy's case. The therapist initially  

                                                                                                                                                                                                               



seemed to imply that Amy could only safely parent Zoltan "[w]ith a little more parenting  

                                                                                                                                                                                                          



information and classes and practice."  And Amy has not explained what "inferences"  

                                                                                                                                                        



the  court  allegedly  drew  against  her  or  how  those  inferences  affected  the  court's  

                                                                                                                                                                                                               

adjudication or removal decision.31  

                                                                 



                                   Amy  also  does  not  explain  what  information  in  the  superior  court's  

                                                                                                                                                                                                               



summary of findings led the court to discount her expert's testimony or make any alleged  

                                                                                                                                                                                                                



                 30                See id.           at 780 (quoting                           D.M., 995 P.2d at 210).                          



                 31  

                                                                                                                                                                                                                                

                                   We note that it is acceptable for a judge to have an opinion of a party as a  

                                                                                                                                                                                                                           

result of something learned in an earlier proceeding, provided that the judge still can act  

as   an   impartial   arbiter.     See   Liteky   v.  United   States,   510   U.S.   540,   555   (1994)  

                                                                                                                                                                                                                              

("[O]pinions formed by the judge on the basis of facts introduced or events occurring in  

                                                                                                                                                                                                                    

the course of the current proceedings, or of prior proceedings, do not constitute a basis  

for a bias or partiality motion unless they display a deep-seated favoritism or antagonism                                                                                                           

that would make fair judgment impossible.");                                                                             Hanson v. Hanson                                  , 36 P.3d 1181, 1184                      

(Alaska 2001) (noting judicial opinion formed during previous proceedings will not                                                                                                                                       

                                                                                                                                                                                                                     

ordinarily  support bias challenge unless  opinion  "is so  extreme  as  to  display  clear  

                                                                                                                                                                   

inability to render fair judgment" (quoting Liteky, 510 U.S. at 551)).  



                                                                                                            -16-                                                                                                     7358
  


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

inferences against her.                                                                   This is important because Amy has not brought general claims                                                                                                                                                                  



of judicial bias or violating relevant evidentiary rules.                                                                                                                                                          She alleges that her due process                                                                 



rights were violated because of her lack of notice of and inability to respond to                                                                                                                                                                                                                                  specific  



pieces of evidence on which the superior court relied.                                                                                                                                                              It follows that she must explain                                           



how having notice of and an opportunity to respond to that evidence might have changed                                                                                                                                                                                                                            



the outcome in her case.                                                                       She has failed to do so.                                                                      Amy instead appears to allege that the                                                                                                   



court's   references   to   its   ten-year   history   with  the   parents   were   improper,   without  



explaining how those references impacted the court's decision.                                                                                                                                                                                                  Because the court's                                  



general comments do not implicate Amy's rights to notice and an opportunity to respond                                                                                                                                                                                                                             



to specific evidence, we do not consider them relevant in the context of this appeal.                                                                                                                                                                                                                                                    



                                                    Amy has not challenged the superior court's underlying factual findings or                                                                                                                                                                                                            



identified any finding she believes tainted by considering evidence outside the record.                                                                                                                                                                                                                                                               



 She ignores                                        that   the   court   referenced   only   specific   evidence   from the                                                                                                                                                                    adjudication  



proceeding when making its oral findings - namely, the expert's report, the therapist's                                                                                                                                                                                                                  



reference to Amy's "porous boundaries," and the incident the mental health clinician                                                                                                                                                                                                                           



recounted when Amy told Zoltan that if he wanted to, she would let him live with Jack.                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                               32  

                                                    Because Amy has raised only "a theoretical possibility of prejudice,"                                                                                                                                                                                                             we  

hold that any due process violation in this case was harmless error.33  

                                                                                                                                                                                                                                                                              



V.                        CONCLUSION  



                                                    The superior court's adjudication order is AFFIRMED.  

                                                                                                                                                                                                                         



                          32                        See Sarah A.                                       , 427 P.3d at 779 (quoting                                                                             D.M., 995 P.2d at 212).                                                  



                          33  

                                                                                                                                                                                                                                                                                                                               

                                                    We reject Amy's contention that we should apply harmless error tests  

                                                                                                                                                                                                                                                                                                                        

adopted by courts in cases involving judicial bias.  Amy has not asserted in this appeal  

                                                                                                                                                                                                                                                                                   

that there was judicial bias or that the trial judge should have recused.  



                                                                                                                                                                 -17-                                                                                                                                                          7358
  

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