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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  


                    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,  



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


                   Laura Fox, Senior Assistant Attorney General, Anchorage,  


                   and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  



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


                   and Carney, Justices.  


                   WINFREE, Justice.  



                   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  


                                                                                                                -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                 



                              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  



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  



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  



                                                                                             -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

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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  



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


                                                                                                                                                                                                                                                   -7-                                                                                                                                                                                                                                                              7358  

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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

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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  



                                                                                                                            "[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  



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  



                                                                                                     -9-	                                                                                            7358

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


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  


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

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


 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  


 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  




                                                                                                                                                                                         -12-                                                                                                                                                                                7358

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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.),  

            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.),  



            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), (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  


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).                                        



                                   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                                                     


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).                          



                                   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.                                                                                                                                                                                                                                                                


                                                    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).                                                  



                                                    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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