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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dustin V. v. State of Alaska, DHSS, OCS, Dena M. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7376

Dustin V. v. State of Alaska, DHSS, OCS, Dena M. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7376

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

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                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



DENA  M.,                                                   )  

                                                            )                                  

                                                                 Supreme Court Nos. S-17154/17178
  

                            Appellant,                      )    (Consolidated)
  

                                                            )  

         v.                                                 )                                  

                                                                 Superior Court Nos. 4FA-16-00120/
  

                                                            )                    

                                                                 00121 CN (Consolidated)
  

STATE OF ALASKA, DEPARTMENT  

                                                            )  

OF HEALTH & SOCIAL SERVICES,  

                                                            )                      

                                                                 O P I N I O N  

OFFICE OF CHILDREN'S SERVICES,  

                                                            )  

                                                            )                                  

                                                                 No. 7376 - June 14, 2019  

                            Appellee.                       )  

                                                            )  

DUSTIN V.,                                                  )  

               

                                                            )  

                            Appellant,                      )  

                                                            )  

         v.                                                 )  

                                                            )  

STATE OF ALASKA, DEPARTMENT                                 )  

                                  

OF HEALTH & SOCIAL SERVICES,                                )  

                                      

OFFICE OF CHILDREN'S SERVICES,                              )  

                                         

                                                            )  

                            Appellee.                       )  

                                                            )  



                                                                                            

                   Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                      

                   Fourth Judicial District, Fairbanks, Michael A. MacDonald,  

                   Judge.  



                                                                                                  

                   Appearances:  Emily L. Jura, Assistant Public Defender, and  

                                                                                         

                   Quinlan Steiner, Public Defender, Anchorage, for Appellant  

                                                                                              

                   Dena M.  J. Adam Bartlett, Anchorage, for Appellant Dustin  

                                                                                         

                   V.  Rebecca Hattan and Laura E. Wolff, Assistant Attorneys  


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

                         General,   Anchorage,   and   Kevin   G.   Clarkson,   Attorney  

                         General, Juneau, for Appellee. Lisa Wilson, Assistant Public                                        

                         Advocate, and Richard Allen, Public Advocate, Anchorage,                                  

                         for Guardian Ad Litem.          



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

                         Maassen,   Justices.   [Carney, Justice, not participating.]                 



                         WINFREE, Justice.   



I.          INTRODUCTION  



                         After  a  mother's  and  father's  lengthy  involvement  with  the  Office  of  

                                                                                                                                                             



Children's Services (OCS), based primarily on alcohol abuse, their parental rights to  

                                                                                                                                                             



their two minor children were terminated. Both parents appeal, challenging the superior  

                                                                                                                                                  



court's  admission  of  telephonic  testimony  and  its  perceived  failure  to  consider  

                                                                                                                                                



guardianship as an alternative to termination.  Because the parents were not prejudiced  

                                                                                                                                              



by the telephonic testimony and because there was no error in the court's consideration  

                                                                                                                                        



of a possible guardianship, we affirm the parental rights termination.  

                                                                                                          



II.         FACTS AND PROCEEDINGS  

                                         



            A.           Early OCS Involvement  

                                                                           



                         Dena M. and Dustin V. are thebiological parentsofKelly, Shannon, Molly,  

                                                                                                                                                     



and  Kelton,  who,  at  the  time  of  the  termination  order,  were  20,  18,  12,  and  4,  

                                                                                                                                                             

                        1  Shannon was 17 at the beginning of the termination trial but turned 18 and  

respectively.                                                                                                                                              



aged-out of OCS custody before the termination decision.   Only the minor children,  

                                                                                                                                                



Molly and Kelton, are the subjects of this appeal. The family members are affiliated with  

                                                                                                                                                         



             1           We use pseudonyms to protect the family members' privacy.  

                                                                                                                           



                                                                              -2-                                                                            7376  


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

Native Village of Eagle (the tribe), and Molly and Kelton are Indian children within the                                                                                       



                                                                                                          2  

meaning of the Indian Child Welfare Act (ICWA).                                                               



                            OCS became actively involved with the family in 2006 after receiving a  

                                                                                                                                                                                   



report about the parents' alcohol abuse.  OCS received 15 reports of harm concerning  

                                                                                                                                                              



alcohol abuse, domestic violence, and neglect prior to removing Kelly, Shannon, and  

                                                                                                                                                                              



Molly in 2008, before Kelton was born. A child in need of aid (CINA) adjudication was  

                                                                                                                                                                              

made based on risk of mental injury, neglect, and parental substance abuse.3                                                                                     Although  

                                                                                                                                                                 



Dena and Dustin "minimized" the severity of their issues with alcohol, they eventually  

                                                                                                                                                                



completed the substance abuse component of their case plans and Dena completed an  

                                                                                                                                                                                



anger management course; based on this limited success, the couple regained custody of  

                                                                                                                                                                                 



their children in mid-2011.  

                                    



                            About a year later, in May and June 2012, Alaska State Troopers twice  

                                                                                                                                                                          



were called to help Dena recover from excessive alcohol intake. Later that year the three  

                                                                                                                                                                           



older children again were removed from their parents' home and placed in OCS custody.  

                                                                                                                                                                                       



And in December 2013 Kelton was placed in OCS custody after having alcohol in his  



system at birth.  

                                  



                            After this second removal Dena and Dustin moved frequently between  

                                                                                                                                                                    



Eagle  and  Fairbanks  and  were  difficult  to  contact.                                                           Although  they  participated  in  

                                                                                                                                                                                



substance abuse assessments, the OCS caseworker said that Dustin "laugh[ed] and sa[id]  

                                                                                                                                                                          



that he wouldn't pass a [urinalysis]."  They eventually participated in a risk assessment  

                                                                                                                                                              



with a licensed clinical social worker.  Dena and Dustin acknowledged their "extensive  

                                                                                                                                                                



              2             See   25 U.S.C.  1903(4) (2012) (" 'Indian child' means any unmarried                                                             



person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is                                                                                          

eligible for membership in an Indian tribe and is the biological child of a member of an                                                                                        

Indian tribe.").   



              3             See AS 47.10.011(8)(B), (9), (10).  

                                                                                           



                                                                                        -3-                                                                                7376
  


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

history  and  use  of  alcohol  and  illegal  substances"  and  history  of  being  "mutually  

                                                                                                                    



physically combative." About two years into this second removal, Dena began to engage  

                                                                                                                         



in counseling. Following a trial home visit and Dena's limited engagement in treatment,  

                                                                                                                     



the parents regained custody of the children in April 2016.  

                                                                                            



          B.        Current Case Proceedings  

                                            



                    Just two months after Dena and Dustin regained custody, OCS learned that  

                                                                                                                              



they had been drinking and that Dustin and Shannon had been in a physical altercation.  

                                                                                                                                     



When  an  OCS  caseworker  went to  Eagle to  assess the situation,  Dena and  Dustin  

                                                                                                                         



admitted they had been drinking; OCS thereafter implemented a new care and safety  

                                                                                                                    



plan.  The plan anticipated Dena and Dustin traveling and the children staying in Eagle.  

                                                                                                                                     



But the children's placements proved unsafe, and, although OCS attempted to work with  

                                                                                                                             



the tribe to create a new safety plan while Dena and Dustin were away, "the tribe felt that  

                                                                                                                              



the parents' behaviors were out of control and they could not come up with a plan to  

                                                                                                                                 



keep the children safe."  OCS again took emergency custody of the children.  

                                                                                                                       



                    About a month later the tribe banished Dustin.  The Eagle Village Council  

                                                                                                                        



wrote in its banishment letter that Dustin had "broken trust and [his] word" by failing to  

                                                                                                                                 



be "on [his] best behavior and not involv[ing] [him]self in any activities that would cause  

                                                                                                                            



[him] to lose custody of [his] children."  Because OCS had removed the children "from  

                                                                                                                           



[his] care twice in the past month and a half," the Council banished him "to ensure the  

                                                                                                                               



health and safety of not only [his] children but Tribal members, Eagle Village Council  

                                                                                                                        



members and Native Village of Eagle employees."  

                                                                               



                    Dena and Dustin moved to Northway and infrequently communicated with  

                                                                                                                             



OCS and their children.  An OCS caseworker developed case plans for each parent in  

                                                                                                                                 



September 2016, although the plans were difficult to implement due to sporadic contact.  

                                                                                                                                     



The  case  plans  required  the  parents  to  obtain  substance  abuse  and  psychological  

                                                                                                              



                                                               -4-                                                         7376
  


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

                                                                                                                          

assessments, attend Alcoholics Anonymous meetings, and provide OCS basic contact  



                     

information.  



                                                                                                                                

                    Dena and Dustin brieflyreturned toEaglefor the winter holiday season, but  



                                                                                                                          

otherwise lived in Northway through summer 2017.  They did not meaningfully engage  



                                                                                                                             

in treatment during this time, but they did participate in visitation OCS arranged.  After  



                                                                                                                                  

OCS filed a petition to terminate parental rights in June 2017, the parents returned to  



                                                                                                                      

Eagle and began regularly attending counseling and treatment programs. The children's  



                                                                                                                             

foster parent later testified that the parents attended informal visitation "[a]t least three  



                                                                                                                                      

to four times a week, some weeks more," and that they never visited while intoxicated.  



                                                                                                                              

The foster parent testified to the "strong bond" between the children and parents.  



                                                                                                                                  

                    Although Dena and Dustin were sober during visitation, they continued to  



                                                                    

abuse substances leading up to the January 2018 termination trial.  In December 2017  



                                                                                                                          

Dustin physically assaulted Shannon; Dena attempted to intervene, and Dustin kicked  



                                                                                                                                 

her.   OCS then suspended visitation with Molly and Kelton.   Visitation resumed in  



                                                                                                                              

January  2018,  twice-weekly  and  regulated  to  ensure  the  parents  were  "sober  and  



                      

appropriate."  



                                                            

          C.        Termination Trial And Order  



                                                                                                                                      

                    The termination trial took place over six days in January and March 2018.  



                                                                                                                           

Over the parents' objection, the superior court permitted four Eagle witnesses to testify  



                                                                                                                           

telephonically: the tribe's designated ICWA expert; a safety plan participant and former  



                                                                                                                    

foster parent; a former Eagle public safety officer; and Molly and Kelton's then-foster  



                                                                                                                                

parent. The court initially overruled the objection because "no objection was made at the  



                                                                                                                                

pretrial conference."  Dena's attorney observed that OCS had not filed a motion for  



                                                                                                                             

telephonic testimony and that there had been no prior opportunity to object.  The court  



                                                                                                                                 

then  stated  that  Dena  could  call  the  witnesses  in  person  "in  [her]  case  if  [she]  so  



                                                                                                                                

choose[s]."  The court broadly ruled that the "distances here make it implicit that the  



                                                                -5-                                                         7376
  


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

                                                                                                                                                                                                                                                                                                                                                                                                                     4  

Eagle witnesses are beyond . . . what's contemplated by the rule."                                                                                                                                                                                                                                                                                                                                                         The court ruled that                                                                                  



the Eagle witnesses could testify telephonically and stated:                                                                                                                                                                                                                                                                                                                                    "If the parties want to                                                                                                                  



 subpoena witnesses and transport them to this court, they're free to do so."                                                                                                                                                                                                                                                                                                                                                                                                          The court  



 later clarified that "[a]ny prejudice can be remedied by the fact that there will be a two-                                                                                                                                                                                                                                                                                                                                                                                                                       



month continuance.                                                                                                           Any witnesses can be recalled."                                                                                                                                                                                



                                                                                   The tribe's ICWA expert testified that excessive drinking and domestic                                                                                                                                                                                                                                                                                                                                     



violence are not tolerated by the tribe.                                                                                                                                                                                                         She acknowledged that the tribe highly values                                                                                                                                                                                                                 



 families and expressed that the parents' "conduct does not match and adhere to the                                                                                                                                                                                                                                                                                                                                                                                                                                                



 cultural norms of the Eagle Village."                                                                                                                                                                                                    The court permitted the ICWA expert to testify                                                                                                                                                                                                                        



 about Molly's and Kelton's best interests from her "limited perspective, the cultural                                                                                                                                                                                                                                                                                                                                                                                                                



perspective," and it stated that the testimony would "not go to the ultimate best-interest                                                                                                                                                                                                                                                                                                                                                                                 



 question   in   this   case."     The   ICWA   expert   advocated   termination   as   being  in   the  



 children's best interests, fearing that physical damage would result if the children were                                                                                                                                                                                                                                                                                                                                                                                                                                



returned to their parents.                                                                                                                                  



                                                                                   The safety plan participant testified that she had seen Dena and Dustin                                                                                                                                                                                                                                                                                                                                                  



under the influence on "numerous occasions," including during a summer 2016 incident                                                                                                                                                                                                                                                                                                                                                                                                                  



when Dustin "arrived at [her] house very under the influence" with Kelton, who "reeked                                                                                                                                                                                                                                                                                                                                                                                                                  



                                          4                                        CINA Rule 3(g)(1) provides that the superior court "may conduct any                                                                                                                                                                                                                                                                                                                                                                          



hearing with telephonic participation by one or more parties, counsel, witnesses, foster                                                                                                                                                                                                                                                                                                                                                                                                                            

parents or out-of-home care providers, or the judge." A statewide presiding judge order                                                                                                                                                                                                                                                                                                                                                                                                                                 

 augments this rule, stating that "[a]ny case participants, including out-of-home care                                                                                                                                                                                                                                                                                                                                                                                                                                      

providers, grandparents, tribes, parties, counsel, witnesses or the judge, who are not                                                                                                                                                                                                                                                                                                                                                                                                                                            

physically present at the court location may participate telephonically in any CINA                                                                                                                                                                                                                                                                                                                                                                                                                             

hearing without court approval or prior notice."                                                                                                                                                                                                                                                       Presiding Judge Administrative Order,                                                                                                                                                                    

First Judicial Dist. Admin. Order No. 16-02; Second Judicial Dist. Admin. Order No. 16-                                                                                                                                                                                                                                                                                                                                                                                                                                             

 02; Third Judicial Dist. Admin. Order No. 16-06; Fourth Judicial Dist. Admin. Order No.                                                                                                                                                                                                                                                                                                                                                                                                                                          

  16-02    (effective    July    1,    2016)    (establishing    statewide    procedures    for    telephonic  

participation in CINA proceedings).                                                                                                                                                                                                



                                                                                                                                                                                                                                                                     -6-                                                                                                                                                                                                                                                   7376
  


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

of alcohol." The safety plan participant also testified about Dustin physically assaulting                                                                                                                                                                                                                                                                             



 Shannon and described her injuries.                                                                                                                                     The former public safety officer testified about his                                                                                                                                                                           



interactions with the family, recalling "screaming and yelling" and circumstances when                                                                                                                                                                                                                                                                                                      



the parents were under the influence while the children were present.                                                                                                                                                                                                                                                             Finally, the then-                                         



 foster parent testified that Molly and Kelton have "strong connection[s]" with their                                                                                                                                                                                                                                                                                                         



parents.   Dena and Dustin reserved their cross-examinations of both the safety plan                                                                                                                                                                                                                                                                                                           



participant and safety officer, but did not recall either to testify.                                                                                                                                                                                                    



                                                               The court heard extensive testimony on whether guardianship, as opposed                                                                                                                                                                                                                                        



to termination, would be appropriate in this case.                                                                                                                                                                                                 Under this alternative the foster                                                                                                     



parents would have been the children's guardians while                                                                                                                                                                                                         the parents worked on treatment.                                                                                                                           



Testimony conflicted whether guardianship or termination was in the children's best                                                                                                                                                                                                                                                                                                              



interests. Acknowledging that guardianship would allow visitation with the parents, the                                                                                                                                                                                                                                                                                                                



OCScaseworker expressedthat it "leaves open the possibility oftheparents                                                                                                                                                                                                                                                                                  coming back  



in and contesting and requesting dissolving of the guardianship on a yearly basis."                                                                                                                                                                                                                                                                                                              The  



OCS caseworker                                                                     also   recounted   Molly's strong                                                                                                                      preference against termination                                                                                                                             and  



adoption,   noting   that   she   had   threatened   to   run   away   if   her  parents'   rights   were  



terminated.   



                                                               Mollyand                                        Kelton'sguardianadlitem(GAL)acknowledged that theparents                                                                                                                                                                                                             



"have shown and demonstrated appropriate parenting.                                                                                                                                                                                                              They clearly have a bond with                                                                                                  



the kids."                                     The GAL supported termination of parental rights for Kelton, as the parents                                                                                                                                                                                                                                                         



"haven't been able to demonstratestability when it comes to housing, employment, [and]                                                                                                                                                                                                                                                                                                       



where they're going to live even if they're in Eagle."                                                                                                                                                                                                                     But the GAL believed                                                                                                     that  

                                                                                                                                                                                          5  The superior court asked the GAL questions  

guardianship would better serve Molly.                                                                                                                                                                                  



                                5  

                                                                                                                                                                                                                                                                                                                                                                                      

                                                               Despite this argument to the superior court, the GAL has joined in OCS's  

                                                                                       

appellate brief "in full."  



                                                                                                                                                                                                     -7-                                                                                                                                                                                                            7376  


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

about guardianship, inquiring how it could be accomplished without termination and                                                                                                                             



whether there was evidence that all parties were in agreement.                                                                                             The court also asked the                              



tribal representative about consequences if Molly refused guardianship.                                                                                                               



                                 In June 2018 the court terminated Dena's and Dustin's parental rights to                                                                                                           



Molly and Kelton.                               The court found that Molly and Kelton were children in need of aid                                                                                               

                                                                                                                                                                                    6     Finding that  

based on risk of physical harm, neglect, and parental alcohol addiction.                                                                                                                                       



termination was in the children's best interests, the court did not expressly discuss  

                                                                                                                                                                                                      



guardianship but did acknowledge Molly's antipathy toward termination and adoption.  

                                                                                                                                                                                                                           



The court stated that the "record suggests that this is a genuine preference and that  

                                                                                                                                                                                                              



 [Molly] is of sufficient age and capacity to express this preference," but "[b]alanced  

                                                                                                                                                                                           



against this preference is the complete inability of the parents to meet the children's  

                                                                                                                                                                                               



needs and their complete inability to provide a stable satisfactory environment for the  

                                                                                                                                                                                                                 



children."                    Ultimately  the  court  found  "no  realistic  other  option"  than  terminating  

                                                                                                                                                                                           



parental  rights.                             The  court  left  Molly's  preference  against  adoption  for  "future  

                                                                                                                                                                                                     



proceedings."  



                                 Dena and Dustin both appeal, contending that the superior court erred by  

                                                                                                                                                                                                                  



allowing  the  four  Eagle  witnesses'  telephonic  testimony  and  by  determining  that  

                                                                                                                                                                                                              



termination was in their children's best interests without first considering guardianship.  

                                                                                                                                                                                       



III.             STANDARD OF REVIEW  

                                                                



                                 We  generally  review  a  superior  court's  decision  allowing  telephonic  

                                                                                                                                                                                             

testimony for abuse of discretion.7   But we "must disregard harmless errors that have no  

                                                                                                                                                                                                                   



                 6               See  AS 47.10.011(6), (9), (10).                                   



                 7  

                                                                                                                                                                                                          

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

                                                                                    

Servs., 71 P.3d 811, 817 (Alaska 2003).  



                                                                                                         -8-                                                                                                7376
  


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

                                                                                                                                                       8  

substantial effect on the rights of parties or on the outcome of the case."                                                                                We review the            



factual determination whether termination of parental rights is in a child's best interests                                                                              



                                9 

                                                                                                                                                       

for clear error.   "Findings of fact are clearly erroneous if a review of the entire record  



                                                                                                                                                             

in the light most favorable to the party prevailing below leaves us 'with a definite and  



                                                                                                        10  

                                                                                                               

firm conviction that a mistake has been made.' " 



IV.           DISCUSSION  



                                                                                                                                                   

              A.             Any Error In Allowing Telephonic Testimony Was Harmless.  



                                                                                                                                                                                 

                             Dena and Dustin argue that the superior court erred by allowing the four  



                                                                                                                                                                                     

Eagle  witnesses  to  testify  telephonically,  challenging  the  court's  alleged  failure  to  



                                                                                                                                                                               

consider whether good cause or substantial prejudice existed as Alaska Civil Rule 99(a)  



                                                                             11  

                                                                                                                                                                                  

requires in other civil proceedings.                                               They argue, additionally and alternatively, that  



                                                                                                                                                                                    

allowing telephonic testimony violated their due process rights.  It is not necessary for  



                                                                                                                                                                                    

us  to  decide  whether  allowing  telephonic  testimony  was  proper  statutorily  or  



               8             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) (applying Civil                                                                                        

Rule 61 to CINA proceedings).          



               9             Theresa L. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                   

Servs., 353 P.3d 831, 837 (Alaska 2015).  

                                                                           



               10            Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                   

Servs., 234 P.3d 1245, 1253 (Alaska 2010) (quoting Brynna B. v. State, Dep't of Health  

                                                                                                                                                                            

& Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).  

                                                                                                                                                            



               11            Compare Alaska R. Civ. P. 99(a) (permitting telephonic participation in  

                                                                                                                                                         

civil proceedings by "one or more parties, counsel, witnesses, or the judge . . . in any  

                                                                                                                                                                                  

hearing or deposition for good cause and in the absence of substantial prejudice to  

                                                                                                                                                                                     

opposing parties"), with CINA Rule 3(g)(1) (providing superior court "may conduct any  

                                                                                                                                                                                   

hearing with telephonic participation by one or more parties, counsel, witnesses, foster  

                                                                                                                                                                              

parents or out-of-home care providers, or the judge").  

                                                                                                   



                                                                                          -9-                                                                                  7376
  


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

constitutionally, because we conclude that any possible error did not impact the parents'                                                                                      



                                                                                                      12  

ability to present their case and was harmless.                                                              



                              Although in-person testimony undoubtedly "haspersuasivebenefits absent  

                                                                                                                                                                                    

                                                                                                                                               13  allowing telephonic  

from testimony given out of the presence of the trier of fact,"                                                                                                          

                                                                                                                                   

testimony is not necessarily "substantial prejudice" to warrant reversal.14                                                                                                Dena and  

                                                                                                                                                                                         



Dustin fail to identify any trial deficiencies demonstrating that they were substantially  



prejudiced.   They argue that the telephonic testimonies were "critical to the court's  

                                                                                                                                                                                 



resolution of key factual and legal questions."  But even assuming this assertion's truth,  

                                                                                                                                                                                     



criticality alone is insufficient to require in-person, rather than telephonic, testimony. In  

                                                                                                                                                                                             



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



Servs., 427 P.3d 771, 780 (Alaska 2018) (alterations in original) (quoting                                                                                        D.M. v. State,     

Div. of Family & Youth Servs.                                          , 995 P.2d 205, 210 (Alaska 2000)) (noting we have                                                             

"denied due process claims where a parent failed to identify any 'plausible' basis for                                                                                                    

findingprejudice or did not                                 theorizeabout howtherequestedprocedural safeguard might                                                                  

 'potentially alter[] the findings about . . . parental conduct' ").                                                                 



               13              Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d  

                                                                                                                                                                                       

 1130, 1137 (Alaska 2001).  Other courts have recognized that in-person testimony aids  

                                                                                                                                                                                        

in evaluating witness credibility, establishing witness identity, impressing formalities  

                                                                                                                                                                         

upon the witness, assuring no outside influences exist, and assuring no documents are  

                                                                                                                                                                                          

referred to improperly.  See, e.g., Bonamarte v. Bonamarte, 866 P.2d 1132, 1134 (Mont.  

                                                                                                                                                                                  

 1994); Kelly v. Kelly, 445 S.W.3d 685, 694 (Tenn. 2014).  

                                                                                                                   



               14             See 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) (applying Civil Rule 61 to CINA proceedings);  

                                                                                                                                                                   

see also Mary E. v. State, No. S-10705, 2003 WL 22994469, at *10 (Alaska Dec. 17,  

                                                                                                                                                                                          

2003)  ("[Appellant's]  examples  [of  prejudice  from  telephonic  testimony]  do  not  

                                                                                                                                                                                        

demonstrate 'substantial prejudice.'  No doubt she was inconvenienced, but the court  

                                                                                                                                                                                     

made substantial efforts to mitigate that inconvenience.").  

                                                                                          



                                                                                            -10-                                                                                      7376
  


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

other contexts we have considered whether a witness's credibility is at issue to determine                                                                                                                                   



                                                                                                                         15  

if in-person testimony should be required.                                                                                     



                                      Dena  summarily  argues  in  her  reply  brief  that  all  four  witnesses'  

                                                                                                                                                                                                                         



"credibility was disputed," but she discusses only the tribal ICWA expert's credibility.  

                                                                                                                                                                                                                                                            



Dena suggests that the ICWA expert testified based on materials Dena had not examined  

                                                                                                                                                                                                                             



and that with live testimony she "could have then requested to review those materials  

                                                                                                                                                                                                                              



prior  to  cross-examination,  as  opposed  to  waiting  until  after  [the]  testimony  had  

                                                                                                                                                                                                             



concluded before being able to review them."  Dena continues:  "If [the ICWA expert]  

                                                                                                                                                                                                                                    



had testified in person, the trial court would have been able to observe how extensively  

                                                                                                                                                                                                                        



 [she] relied on those materials, as well as her demeanor and appearance, in determining  

                                                                                                                                                                                                                      



whether and how much to credit her testimony and opinions."  

                                                                                                                                                                                     



                                      But Dena failed to establish at the termination trial that the ICWA expert  

                                                                                                                                                                             



was, in fact, relying on documents  during her actual testimony.   The ICWA expert  

                                                                                                                                                                                                                                      



referred to "reports" she had received, but the transcript gives no indication that she was  

                                                                                                                                                                                                                                              



reading from documents rather than testifying from memory.                                                                                                                             Dena's attorney cross- 

                                                                                                                                                                                                                                       



examined the ICWA expert and established that the expert "ha[d] a file on this family,"  

                                                                                                                                                                                                                                 



but the attorney did not clarify whether the expert had relied on that file while testifying  

                                                                                                                                                                                                                              



or  had  reviewed  it  before  testifying.                                                                          Dena  failed  to  establish  that  the  expert  was  

                                                                                                                                                                                                                                            



                   15                 See, e.g.               ,  Richard B. v. State, Dep't of Health &Soc. Servs., Div. of Family                                                                                                   



&Youth Servs.                              , 71 P.3d 811, 832 (Alaska 2003) (concluding denial of prisoner's request                                                                                                                

for transportation to attend his termination of parental rights trial did not violate his due                                                                                                                                                 

process rights in part because his "credibility was not at issue on any material matter and                                                                                                                                                    

therefore that any value added by in-person testimony . . . would have been negligible");                                                                                                                            

cf. In re Hospitalization of Jacob                                                             S., 384 P.3d 758, 765 (Alaska 2016) (concluding that                                                                                           

appellant   was   not   prejudiced   by   telephonic   testimony   in   part   because   he   did   not  

challenge witness credibility).                      



                                                                                                                       -11-                                                                                                                7376
  


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

                                                                                                                           

improperly relying on documents during her telephonic testimony and failed to object  



                                     

to the alleged improper reliance.  



                                                                                                                        

                    Even if the ICWA expert had improperly relied on documents, the superior  



                                                                                                                               

court already had discounted the ICWA expert's testimony by accepting it from the  



                                                                                                                           

"limited perspective, the cultural perspective of this witness."  And even if Dena could  



                                                                                                        

have reviewed the ICWAexpert's materials more extensively prior to cross-examination  



                                                                                                                               

had the expert testified in person, the court allowed Dena to recall any witnesses after the  



                                                                                                                       

trial's two-month continuance.   The court stated that the "witnesses are not surprise  



                                                                                                                              

witnesses.  The facts are not surprise facts.  Any prejudice can be remedied by the fact  



                                                                                                                               

that there will be a two-month continuance."  The ability to recall a witness may not  



                                                                                                                               

mitigate potential prejudice in every case, but, even after having the chance to review the  



                                                                                                                         

ICWA expert's materials, the parents did not recall her for cross-examination.  



                                                                                                                     

                    Dena  additionally  seems  to  recognize  that  evidence  other  than  the  



                                                                                                                              

challenged testimony may have aided the court's decision, stating, for example, that two  



                                                                                                                               

telephonic testimonies "most directly supported" certain findings and that one was the  



                                                                                                                           

"primary  testimony"  on  another  finding.                           But  other  than  stating  that  the  OCS  



                                                                                                                          

caseworker's non-telephonic testimony was "brief and noncommital," Dena and Dustin  



                                                                                                                             

ignore the multitude of other evidence presented, including certified court records, OCS  



                                                                                                                         

reports, case plans, risk assessments, safety plans, and the tribe's letter and formal  



                                                                                                                         

resolution of banishment.  The court also heard non-telephonic testimony from former  



                                                                                                                     

OCScaseworkers, substanceabusecounselors,thetribaladministrator,and thecounselor  



                                                

who provided the parents' risk assessment.  



                    Dena and Dustin fail to concretely explain what prejudice they sustained  



                                                             

as a result of the witnesses' telephonic, rather than in-person, testimony.  Because any  



                                                                                                                               

alleged error did not prejudice the parties in this case, we hold that the superior court did  



                                                      

not err by allowing this telephonic testimony.  



                                                              -12-                                                         7376
  


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

                   B.	                The Superior Court Did Not Err By Finding That Termination Of                                                                                                                                          

                                      Parental Rights Was In The Children's Best Interests.                                                                                   



                                      Dena and Dustin argue that the superior court's finding that termination of                                                                                                                               



their parental rights was in their children's best interests                                                                                                     "was insufficiently supported                            



by factual findings and was also clearly erroneous."                                                                                                           Dena also argues                                      that, under  



AS 47.10.088(a), the court was required to resolve the guardianship question prior to                                                                                                                                                           

termination.16  



                                                                                                                                                                                                                                       

                                      Alaska Statute 47.10.110 allows, but does not require, the superior court  



                                                                                                                                                                                                                                 

to appoint a guardian in a CINA proceeding when "it appears to the court that the welfare  



                                                                                                                                                                                                       

of a minor will be promoted by the appointment of a guardian."  The superior court is  



                                                                                                                                                                                                                                              

required to consider guardianship in a termination of parental rights proceeding only "to  



                                                                                                                                                                                                                                   

the extent that the statute requires the court to order an arrangement that is in the child's  

                                       17   The superior court "may reasonably reject a request for guardianship if  

                                                                                                                                                                                                                                                  

best interest." 

such a plan would be inconsistent with a child's need for stability and protection."18  

                                                                                                                                                                                                                                                 



                                      Dena contends that evidence before the superior court "suggested that  

                                                                                                                                                                                                                                          



guardianship and retention of parental rights offered clear advantages over termination  

                                                                                                                                                                                                                     



for the children."  Even assuming this is accurate, the superior court at the very least  

                                                                                                                                                                                                                                         



                   16                 Alaska   Statute   47.10.088(a)   provides   that   parental   rights   "may   be  



terminated for purposes of freeing a child for adoption or other permanent placement if                                                                                                                                                           

the court finds by clear and convincing evidence that" the child is a child in need of aid,                                                                                                                                                 

that the parent has not remedied the conduct that made the child in need of aid, and that                                                                                                                                                  

OCS has made reasonable reunification efforts.                                                                     



                   17                 Doug Y. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                                                    

243 P.3d 217, 229-30 (Alaska 2010) (quoting  C.W. v. State, Dep't of Health & Soc.  

                                                                                                                                                                                                                                         

Servs., 23 P.3d 52, 57 (Alaska 2001)).  

                                                                                        



                   18                 Grace L. v. State, Dep't of Health&Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                                                    

329 P.3d 980, 987 (Alaska 2014).  

                                                                              



                                                                                                                     -13-	                                                                                                              7376
  


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

                                                                                                                                                     19  

implicitly   considered   this   evidence.                                                                                                                     The   superior   court   heard   testimony   whether  



guardianship was in Molly's and Kelton's best interests and actively questioned its                                                                                                                                                                                                                                                              



merits.   But the court ultimately found that termination would better serve the children.                                                                                                                                                                                                                                                                       



The court's termination order emphasized that Dena's and Dustin's alcohol abuse left                                                                                                                                                                                                                                                           



"no hope that either parent could be made capable of parenting either child at any time                                                                                                                                                                                                                                                   



in the foreseeable future."                                                                               The court found that "[a]s a result of a lifetime in and out of                                                                                                                                                                           



 [OCS] custody, the children have developed a special need for stability, continuity, and                                                                                                                                                                                                                                                     



permanency."   After weighing Molly's preference against termination, the court found                                                                                                                                                                                                                                                



that the "balance of all the factors weighs in favor of concluding that it is in the best                                                                                                                                                                                                                                                   



interest of the children to terminate parental rights.                                                                                                                                                            There is no realistic other option.                                                                                                            



 [Molly]'s preference against adoption can be addressed in future proceedings."                                                                                                                                                                                                                                                   



                                                      Contrary to Dena's suggestion, the superior court clearly considered the                                                                                                                                                                                                                  



evidence   and   Molly's   and   Kelton's   specific   needs.     Agreeing   with   the   testimony  



                                                                                                                                                                                                                                                                                                                                                       20  

 supporting termination rather than guardianship does not mean that the court erred.                                                                                                                                                                                                                                                                             



The  court  heard  and  actively  questioned  testimony  on  guardianship,  and  the  court  

                                                                                                                                                                                                                                                                                                                                      



implicitly considered guardianship as an option in its termination order.  We therefore  

                                                                                                                                                                                                                         



 see no clear error in the court's decision on this issue.  

                                                                                                                                                                                                  



                                                      Wealso disagreethat the superior court erred by terminating parental rights  

                                                                                                                                                                                                                                                                                                                                      



before deciding whether guardianship or adoption was in the children's best interests.  

                                                                                                                                                                                                                                                                                                                                                                 



                           19                         See Doug Y.,                                         243 P.3d at 229-30 (holding that superior court "did not err                                                                                                                                                                          



in terminating parental rights and not establishing a guardianship" because it "implicitly                                                                                                                                                                                                                   

rejected the guardianship proposal" in its best interests analysis);                                                                                                                                                                                                        C.W., 23 P.3d at 57                                                   

(holding that court properly terminated parental rights rather than institute guardianship                                                                                                                                                                                                              

after court "implicitly rejected the guardianship proposal").                                                                                                                                     



                           20                         See Hannah B. v. State, Dep't of Health &Soc. Servs., Office of Children's  

                                                                                                                                                                                                                                                                                                                  

Servs., 289 P.3d 924, 933 (Alaska 2012) ("Merely because the superior court reached a  

                                                                                                                                                                                                                                                                                                                                                        

different conclusion than [the parent] desired does not constitute legal error.").  

                                                                                                                                                                                                                                                                                            



                                                                                                                                                                       -14-                                                                                                                                                              7376
  


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

In  Fiona P. v. State, Department of Health & Social Services, Office of Children's                                                               



                                                                                                                                                                    21  

Services, an unreported case, we explicitly considered and rejected this same argument.                                                                                  



We stated that "underlying this argument is the notion that if a guardianship were in the  

                                                                                                                                                                  

                                                                                                                                        22  We noted that  

children's best interests, . . . parental rights would not need termination."                                                                                    

                                                                                                                



although the superior court may consider alternative options, we have "never expressed  

                                                                                                                                                     

. . . a legal requirement" that courts consider guardianship before termination.23  

                                                                                                                                                            



                          Dena may be correct that there would be some "positive benefits for the  

                                                                                                                                                                  



children  in  maintaining  a  parental  connection  in  this  case,"  but  the  superior  court  

                                                                                                                                                             



considered those benefits in its termination order.  It found "no hope that either parent  

                                                                                                                                                



could be made capable of parenting either child at any time in the foreseeable future."  

                                                                                                                                                                         



The court wrote detailed factual findings regarding OCS's long history with Dena and  

                                                                                                                                                                 



Dustin and thoroughly addressed why terminating parental rights was in the children's  

                                                                                                                                                     



best  interests.               As  OCS  notes,  the  superior  court  is  required  to  determine  whether  

                                                                                                                                                       



termination of parental rights is in the children's best interests; that is precisely what the  

                                                                                                                                                                  



court did in this case.  

                                 



                          Dena finally argues that this court's interpretation of AS 47.10.088(a)  

                                                                                                                                              



"limits the court to  terminating parental rights only where done for the purpose of  

                                                                                                                                                                   



facilitating or freeing the child for adoption or permanent placement."  In A.B. v. State,  

                                                                                                                                                             



Department of Health & Social Services we remanded a case because it was "unclear  

                                                                                                                                                       



whether the superior court terminated [the parent's] parental rights 'for the purposes of  

                                                                                                                                                                    



             21           No. S-16301, 2017 WL 729765, at *2 (Alaska Feb. 22, 2017).                                                   



             22           Id.   



             23           Id.   



                                                                                -15-                                                                          7376
  


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

freeing [the child] for adoption or other permanent placement.' "                                                                                                                                                            24  But unlike in  A.B. ,  



the superior court in this case made clear that terminating parental rights was for the                                                                                                                                                                                                       



purpose of establishing a permanent placement.  After stating that termination was the                                                                                                                                                                                                         



only "realistic . . . option," the court stated that Molly's "preference against adoption can                                                                                                                                                                                                 



be addressed in future proceedings. The current placement is well suited to [Molly] and                                                                                                                                                                                                      



 [Kelton].   They each have significant support from the community and the tribe."                                                                                                                                                                                                        The  



court further stated that the "positive factors associated with their current placement                                                                                                                                                                               



provide a good foundation for permanency, with or without adoption for [Molly]." The                                                                                                                                                                                                        



court   thus   terminated   parental   rights   with   an   eye   expressly   toward   the   permanent  

placement to follow.                                                   25  



                                              Reviewing the record in the light most favorable to OCS,26 we hold that the  

                                                                                                                                                                                                                                                                                                



superior court did not clearly err by finding that termination was in the children's best  

                                                                                                                                                                                                                                                                                            



interests or otherwise err in its consideration of a possible guardianship.  

                                                                                                                                                                                                                                                           



V.                     CONCLUSION  



                                              For the foregoing reasons, we AFFIRM the superior court's termination of  

                                                                                                                                                                                                                                                                                                   



Dena's and Dustin's parental rights.  

                                                                                                       



                       24                     7  P.3d  946,  953-54  (Alaska  2000)  (quoting  AS  47.10.088(a)).  



                       25                     See  AS  47.10.088(a).  



                       26                     See  Barbara  P.  v.  State,  Dep't  of  Health   &  Soc.  Servs., 234 P.3d 1245,  



 1253   (Alaska  2010)   (stating  we  review   fact   findings   in   light  most   favorable  to party  

prevailing  below).  



                                                                                                                                              -16-                                                                                                                                       7376
  

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