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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Penn P. Jr. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (1/6/2023) sp-7638

Penn P. Jr. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (1/6/2023) sp-7638

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

          Readers  are r   equested  to  bring  errors to the attention  of  the  Clerk  of  the  Appellate C  ourts,  

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


                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

PENN  P.  JR.,                                             )  

                                                           )   Supreme Court No. S-18220  


                             Appellant,                    )  

                                                           )   Superior  Court  No.  3AN-18-00592  CN  

          v.                                               )  


                                                           )   O P I N I O N  





OF HEALTH  &  SOCIAL SERVICES, )                               No. 7638 - January 6, 2023




                             Appellee.                     )  



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


                   Judicial District, Anchorage, Thomas A. Matthews, Judge.  


                   Appearances:  Renee McFarland, Assistant Public Defender,  


                   and  Samantha  Cherot,  Public  Defender,  Anchorage,  for  


                   Appellant.  Mary Ann Lundquist, Senior Assistant Attorney  


                   General, Fairbanks, and Treg R. Taylor, Attorney General,  


                   Juneau, for Appellee Office of Children's Services.  Laura  


                   Hartz, Assistant Public Advocate, and James Stinson, Public  


                   Advocate, Anchorage, for Appellee Guardian ad Litem.  


                   Before:           Winfree,        Chief      Justice,      Maassen,         Carney,  


                   Borghesan, and Henderson, Justices.  


                   MAASSEN, Justice.  



                   The Office of Children's Services (OCS) took custody of a newborn child  


due to concerns about the parents' drug use and the father's history of sexual abuse. The  

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mother   later   voluntarily   relinquished   her   parental   rights,   and   the   superior   court  

terminated  the  father's  rights  following  a  trial.   The  father  appeals  the  termination  order,  

making  two  primary   arguments.   First,  he   argues that the   order   improperly  relied   on  

drug-treatment   records that   were   not   admitted   at   trial.    Second,   he   proposes   a   new  

process  to   govern   a  parent's   claim   of  ineffective   assistance   of   counsel;   applying  this  

process,  he  argues  that  he  has  established  a  prima  facie  case  of  ineffective  assistance  and  

we  should  remand  the  case  to  the  superior  court  for  an  evidentiary  hearing.   We  are  not  

convinced  by  either  argument.   We  affirm  the  termination  order  because  relying  on  the  

unadmitted  drug-treatment  records  was  harmless  error  and  because  the  father  has  not  

shown   that   he   received   ineffective   assistance   of   counsel.     However,   we   take   this  

opportunity  to  clarify  our  approach  to  ineffective  assistance  claims  in  child  in  need  of  aid  

(CINA)  cases.       


         A.       OCS's  Custody  Of  Ruby  

                  Ruby  was  born  in  November  2018  to  Penn  and  June,1 who had earlier lost  


their parental rights to two other children.  The day after Ruby's birth, OCS received a  


report that June had tested positive for amphetamines.2  

                                                                            An  OCS  caseworker  visited  the  

family  at  the  hospital,  where  June  expressed  concern  that  she  would  not  be  able  to  take  

care  of  Ruby.   June  and Penn both  told  the  caseworker  that J   une  had  gotten  very  sick  

from  methamphetamine  use  in  February  of  that  year,  and  June  reported  to  hospital  staff  

that she was using drugs and having difficulty quitting.  Penn told the  caseworker that  

he  too  had  used  methamphetamine  in  an  effort  to  keep  June  around.    

                  Penn  also  told  the  caseworker  that  he  had  previously  been  charged  with  

         1        Pseudonyms  are  used  for  the  family  members  to  protect  their  privacy.   

         2        This  test  was  apparently  later  determined  to  be  a  false  positive.   

                                                          -2-                                                      7638  

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sexual  abuse  of  a  minor  in  the  first  degree  and  was  a  registered  sex  offender.   But  Penn  

said  he  had   created  what  the   caseworker  referred  to   as  Penn's   own   "safety  plan"   for  

being  around  children:   he  would  not  change  a  diaper  or  bathe  an  infant,  and  if  he  felt  he  

was a   threat  to  his   child  he  would   contact  the   doctor  he  had  worked  with   in  his sex  

offender  treatment.    

                   The  caseworker  had  a  team  decision-making  meeting  with  Penn  and  June  

at   which   both   parents   reported   that   they  were   struggling   with   methamphetamine  

cravings.   OCS  then  took  emergency  custody  of  Ruby  and  filed  an  emergency  petition  

seeking   temporary   custody.     Ruby   was   eventually   placed   with   the   family   who   had  

already  adopted  June  and  Penn's  two  older  children,  and  she  still  lived  with  them  at  the  

time  of  trial.    

         B.        OCS's  Services  To  Penn  And  June  

                   The   OCS   caseworker   scheduled   both   parents   for   urinalysis   (UAs)   and  

discussed  with  them  their  options  for  substance  abuse  treatment.   Between  November  

2018  and  December  2019  Penn  missed  many  of  his  scheduled  UAs.   When  he  did  show  

up  he  always  tested  positive  for  marijuana;  on  three  occasions  he  also  tested  positive  for  

methamphetamine   (in   November   and  December   2018   and   April   2019).4  

                                                                                                             The   first  

caseworker  testified  at  trial  that  both  Penn  and  June  "would  test  and  then  they  would  stop  

testing  for  weeks  at  a  time  sometimes."    

                   In  January  2019  the  case  was  transferred  to  a  new  caseworker.   She  had  a  

         3         Penn  was  actually  convicted  of  the  offense,  which  occurred  in  2003  against  

a  minor  in  his  own  household.   

         4         The  superior  court's  findings  included  the  statement  that  when  Penn  did  

undergo   urinalysis,   "he   alternated   between   positive   tests   (showing   marijuana)   and  

negative  tests."   As  the  guardian  ad  litem  (GAL)  notes,  this  was  incorrect;   "in  all  of  the  

UA's  Penn  completed  .  .  .  no  UA  was  ever  negative;  he  was  either  positive  for  marijuana  

and  methamphetamine  or  solely  marijuana."    

                                                           -3-                                                    7638

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case transfer meeting with the initial caseworker and identified the areas of concern as  


substance abuse, Penn's history of sexual abuse, and June's mental health struggles.  


June and Penn "admitted [to her] that they used methamphetamine on a pretty regular  




                    The new caseworker met with Penn in early February.  He told her he had  


used  methamphetamine  two  days  before.                           He  initially  declined  a  substance  abuse  


assessment, but later in the meeting he said he would get one through Cook Inlet Tribal  


Council (CITC).  Penn's case plan called for him to participate in a substance abuse  


assessment and follow its recommendations, participate  in the random UA program,  


participate in a sex offender assessment and follow its recommendations, have family  


contact with Ruby, and attend her doctor appointments when possible.  


                    The caseworker made a referral to CITC, where Penn had a substance abuse  


assessment in February.  He was recommended for intensive outpatient treatment but  


could not receive  it through  CITC because  of his criminal history.   The caseworker  


talked to him about other treatment options and offered to help him call programs, but  


he repeatedly declined her assistance and said he would contact the programs himself.  


                    Penn  and  June  both  met  with  the  caseworker  in  May  2019.                                      Penn  


acknowledged that he had used drugs two weeks before and had not engaged in any  


substance abuse treatment.  He said he had missed UAs due to working double shifts,  


and he acknowledged a recent positive UA.  In a June meeting both parents admitted to  


recent methamphetamine use; Penn explained that June became irritable when she had  


a craving and so he would get methamphetamine for her and they would use it together.  


Penn said he was not planning to seek substance abuse treatment and did not want UAs,  


but he was attending sobriety meetings.  The caseworker also raised the possibility of a  


sex offender assessment for Penn, but, according to the caseworker's later testimony, he  


declined to undergo an assessment with anyone other than the doctor who had treated  

                                                               -4-                                                         7638

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him before, and that doctor was no longer performing assessments.  Penn disputed this  


testimony.  He said he agreed to get a sex offender assessment from a different provider,  


but he was not able to make it to his scheduled appointment (around February 2020) due  


to a lack of transportation.  


                    The caseworker met with Penn again in August, when Penn said he would  


contact providers  for the recommended  substance abuse treatment.   He  said he  had  


abstained from drugs for a week and again agreed to attend his UAs, but he still refused  


to undergo an updated sex offender assessment.  


                    By September Penn's initial substance abuse assessment was outdated; at  


his request the caseworker gave him a referral to Akeela, a substance abuse treatment  


facility.  Penn told the caseworker he had not used methamphetamine "in a while."  As  


of November he and June were living in his vehicle and had been denied several housing  


applications because of his criminal history.  Penn encountered complications arranging  


the Akeela assessment, but it was finally completed in December.  


                    Penn received a copy of the assessment in February 2020. It recommended  


residential  treatment, which he  did not want.   He  asked for a third substance  abuse  


assessment, but OCS denied his request because the Akeela assessment was still current,  


he had not followed through with its recommendations, and he was not attending UAs.  


                    Penn spoke with the caseworker at the end of March.  He again expressed  


interest in a new  substance abuse assessment and said he was pursuing  one through  


CITC.  The caseworker told him to let her know once he had spoken with CITC, and  


then she would send over any necessary materials.  


                    At this point, the caseworker's contact with Penn "kind of dropped off."  


They spoke again in August 2020; Penn told her that he and June were still using drugs  


as recently as the night before.  He again expressed interest in another substance abuse  


assessment; the  caseworker  said  she would  help  him with a  referral  once he  spoke  

                                                               -5-                                                         7638

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with CITC.  


                    The  caseworker called Penn  in December  2020 but  his phone  was  not  


working.  She next spoke with him by phone in January 2021.  Penn reported that June  


had  experienced  a  psychotic  episode  and  been  admitted  to  the  Alaska  Psychiatric  


Institute several times over the last few months; at trial he explained that she had run out  


of medication and they were not able to get to her doctor.  The caseworker testified that  


during  this  phone  call  June  was  "yelling  incoherently"  in  the  background.                                          The  


caseworker told Penn that if he wanted custody of Ruby, his current living situation was  


"very unhealthy."  Penn said he had not used drugs over the last few months but June  


"was still using quite frequently."  He also said he was  still trying to get an updated  


substance  abuse  assessment  from  CITC,  was  attending  sobriety  meetings,  and  was  


willing to restart UAs.  But he did not attend the subsequent UA appointments after the  


caseworker made a referral.  


                    June's medical records, which were admitted at trial, showed continued  


mental health struggles, a suicide attempt, and drug use during early 2021. Penn testified  


that by February she was doing much better, was back on her medication, and was seeing  


her doctor every two weeks.  In March Penn told the caseworker that he and June were  


still living together and it had been a few months since he last used drugs.  


                    Throughout the case Penn engaged in regular visitation with Ruby. He had  


in-person, supervised visits at OCS for most of the case and only missed a few.  When  


the pandemic began, the visits shifted to 15-minute virtual visits, which also went well.  


His interactions with Ruby's foster family were consistently appropriate.  


          C.        Termination Trial  


                    A termination trial was held in April and May 2021.  OCS designated 29  

trial exhibits.  On the trial's first day June agreed to relinquish her parental rights, and  


Penn's attorney requested a continuance, in part to review OCS's exhibits.  The court  

                                                               -6-                                                         7638

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

took  the  testimony of  the  OCS  caseworker  who  had  first m                    ade  contact  with  Penn  and  

June,  then  continued  the  trial  to  the  next  month.    

                   When  the  trial r  esumed,  OCS  moved  to  admit   19  exhibits into  evidence,  

explaining  that June's  relinquishment  of her  parental  rights  made  the  others  unnecessary.  

The  exhibits  were  admitted  without  objection.   The  court  then  heard  testimony  from  the  

second  OCS  caseworker,  Ruby's  foster  mother,  and  Penn.   In  October  the  court  issued  

an  order terminating Penn's parental rights.  After  he appealed, we remanded the case  

for  more  specific  findings.    

                   The superior  court's amended termination order,  issued in January 2022,  

contained more detailed findings of fact and conclusions of  law.  The court found that  

Ruby  was  a  child  in  need  of  aid  due  to  Penn's  substance  abuse5  and a substantial risk of  


substantial physical harm due to Penn's ongoing relationship with June and his history  


of sexual abuse.6        It found that Penn had failed to remedy the conduct that caused Ruby  


to be a child in need of aid, that OCS had made reasonable efforts to reunite the family,  


and that termination of Penn's parental rights was in Ruby's best interests.  


         Penn again appeals the termination order.  




                   "[W]e review  a trial  court's factual findings for clear error."7  


findings  are  clearly  erroneous  if  review  of  the  entire  record  leaves  us  with  'a  definite  and  

         5         See  AS  47.10.011(10).  

         6         See  AS  47.10.011(6).  

         7         Chloe  W.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Off.  of  Child.'s  Servs.,  336  

P.3d   1258,   1264  (Alaska  2014).   

                                                           -7-                                                     7638

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                                                                      8                                                       9  

firm  conviction  that  a  mistake  has  been  made.'  "   We  review  questions  of  law  de  novo.   

"Whether   a  parent's   due  process  right  to  receive   effective   assistance   of   counsel was  

violated  is  a  question  of  law."10  


          A.	       The Superior Court's Reliance On Unadmitted Exhibits Was Harmless  


                    Penn   first  challenges  the   superior  court's  reliance  on  Exhibit   12,  June's  


urinalysis  records.           The  parties  agree  that  this  exhibit  was  neither  offered  into  evidence  

nor  admitted.   The  court  discussed  June's  2018  and  2019  urinalysis  results  in  a  general  

background   section  of  the  amended  termination  order  called  "Findings  in   Support  of  

Termination."    It   noted   that   she   often   missed   scheduled   tests   and   that   when   she   did  

attend,  "she  alternated  between  positive  tests  (showing  marijuana)  and  negative  tests."  

The   court   cited   one   "positive-dilute"   test   for  methamphetamine,   from   December   26,  

2019.   And  it  tied  this  information  to  Penn's  parental  rights,  writing  that  June's  "pattern  

of  usage  is  relevant  to  the  allegations  against  [Penn]  because  the  parents  remained  living  

together   in   the   same   household.    In   addition,   [Penn]   acknowledged   to   OCS   that he  

          8        Id.   (quoting  Sherman  B.  v.  State,  Dep't   of  Health   &  Soc.  Servs.,   Off.   of  

Child.'s  Servs.,  290  P.3d  421,  427-28  (Alaska  2012)).   

          9	       Id.  


          10        Chloe  O.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Off.  of  Child.'s  Servs.,  309  

P.3d  850,  856  (Alaska  2013).   

          11        Penn notes that the termination order also mentioned Exhibit 9, OCS's case  


plan for June, which was also not admitted.  Although he argues that this "undermined  


the  fairness of the process," he  also acknowledges that the  superior court "does not  


substantively discuss [the case plan] or otherwise rely on it in its amended order."  Penn  


does not  show that  the  court's possible  reliance  on this document  could have  been  




                                                             -8-	                                                       7638

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

continued   to   supply   [June]   with   drugs   during   their relationship   in   order   to   keep   her  



                    The  superior  court  also  discussed  June's u               rinalysis  records  in  its  finding  

that  Ruby  was  a  child  in  need  of  aid  under  AS  47.10.011(6)  due  to  a  substantial  risk  of  

substantial  physical   harm.    The   court  based   this   finding   in  part   on   Penn's   "ongoing  

substance  abuse  issues,"  but  it  wrote,  "[I]t  is  equally  important  that  [Penn]  is  continuing  

his  relationship  with  [June]  whose  substance  abuse, mental  health[,]  and  related  issues  

very  clearly  place  her  children  at  risk."    

                    When  the   superior   court  must   "make   specific   factual   findings   and   legal  

conclusions  [in  a  CINA  case,]  .  .  .  the  court's  decision  must  be  based  only  upon  evidence  

admitted  pursuant  to  legal  rules."13  Because June's urinalysis records were not admitted,  


it was error for the superior court to rely on them.  


                    Our next step, however, is to determine whether that error was prejudicial.14  


"In  making  our  determination  we  'disregard  any  error  or  defect  in  the  proceeding  which  

does   not   affect   the   substantial   rights   of   the   parties'   and act only   when   the   result   is  

          12        Penn  disputes  the  superior  court's  statement  that  he  had  "acknowledged  to  

OCS  that  he  continued  to  supply  [June]  with  drugs  during  their  relationship  in  order  to  

keep  her  around,"  arguing  that  this  "misunderstands  the  evidence  admitted  at  trial."   As  

Penn  notes,  however,  the  caseworker  testified  that  he  told  her  in  June  2019  that  he  would  

get   methamphetamine   for   June   when   she   was   irritable   and   having cravings,   and   the  

initial  OCS  caseworker  testified  that  Penn  said  he  had  used  methamphetamine  in  2016  

"to  keep   [June]  around."   Given  this  evidence,  we  cannot  say  that  the  superior  court's  

factual  finding  is  clearly  erroneous.  

          13       Diego K. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 411  


P.3d 622, 629 (Alaska 2018).  


          14       In re Rabi R., 468 P.3d 721, 732 (Alaska 2020); Alaska R. Civ. P. 61.  


                                                             -9-                                                        7638

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


otherwise   'inconsistent   with   substantial  justice.'   "                    "The   inquiry   cannot   be   merely  

whether  there  was  enough  [evidence]  to  support  the  result,  apart  from  the  phase  affected  


by the  error.   It is rather, even  so,  whether  the error  itself  had substantial  influence."                               

The  burden  is  on  the  party  alleging  error.17  

                    Penn  argues  that  the  court's  consideration  of  June's  urinalysis  records  was  

not  harmless  because  "[a]bsent  the  unadmitted  urinalyses  records,  which  spanned  from  

November  2018  to  February  2020  .  .  .  ,  there  was  little  information  presented  to  the  court  

regarding   June's   substance  use   throughout   that   time  period."    He   contends   that   "the  

admitted  evidence  at  trial  demonstrated  only  one  instance  of  use  during  2019,"  and  that  

"because  the  trial  court  concluded  that  June's  drug  use  was  relevant  to  Penn's  fitness  as  

a  parent,  the  trial  court's  reliance  on  this  unadmitted  evidence  was  not  harmless."   

                    We  disagree.   Considerable  evidence  in  the  record  supported  the  court's  

finding  that  June  continued  to  use  drugs  throughout  the  case,  including  testimony  from  

                          18  and June's Southcentral Foundation medical records, which were  

the   OCS  workers                                                                                                      

          15        Rabi  R.,  468  P.3d  at  732  (quoting  Alaska  R.  Civ.  P.  61)).   

          16       Martinez   v.   Bullock,   535   P.2d    1200,    1206   (Alaska    1975)   (quoting  

Kotteakos   v.   United   States,  328   U.S.   750,   765   (1946))   (adopting   that   principle   "in  

evaluating  the  importance  of  errors  in  civil  cases").   

          17       Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000).  


          18        The first caseworker testified that June said she was struggling with drug  


addiction when Ruby was born in November 2018.  The next caseworker testified that  


Penn and June told her in June 2019 that they had recently used methamphetamine, that  


Penn told her in August 2020 that he and June were "still using drugs here and there" and  


had used the night before, and that Penn told her in January 2021 that June "was still  


using  [drugs]  quite  frequently."                Penn  acknowledges  the  relevant  testimony  in  his  




                                                             -10-                                                       7638

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


properly  admitted.            Although  Penn  is  correct  that  there  is  less  evidence  of  June's  drug  

use  in  the  time  period  covered  by  the  urinalysis  records,  there  is  some  testimony  about  

that  time,  considerable  testimony  about  before  and  after,  and  no  evidence  that  June  ever  

stopped.   Additionally,  as  the  superior  court  observed,  the  urinalysis  records  themselves  

showed   only   one  positive  test   for  methamphetamine   and  therefore   added   little  to  the  

court's   finding  about   June's   continuing   drug   use.     We   conclude   that   the   court's  

consideration  of  June's  urinalysis  records  was  harmless.20  

          B.	       Penn   Has   Not   Shown   That   His   Attorney's   Failure   To   Object   To   

                    Certain   Evidence   At   Trial   Constituted   Ineffective   Assistance   Of   


                    Penn  contends  that  of  the  19  OCS  exhibits  admitted  at  trial,  some  "included  

documents  that  contained  inadmissible  hearsay[,]  [a]nd  others  contained  expert  reports  

          19        Penn also argues that the presence of other admissible evidence showing  

June's  drug  use  should  not  render  this  error  harmless,  because  the  trial  court  did  not  rely  

on  this  admissible  evidence  in  its  decision.   We  reject  this  contention.   See  In  re  Rabi  R.,  

468   P.3d   at   733   (holding   that   where   "other   evidence   in   the   record   provides   ample  

support  for  the  [trial]  court's  conclusion,"  "[a]lthough  it  was  error  to  rely  to  any  extent  

upon   the   .   .   .   allegations   contained   only   in   the   [unadmitted   evidence],   the   error   was  


          20        We also note that there were other separate and sufficient bases - beyond  


June's drug use - supporting the finding that Ruby would be subject to a substantial risk  


of substantial physical harm if Penn received custody:  "the ongoing substance abuse  


issues of [Penn]" and "[Penn's] sexual abuse history and unwillingness to follow through  


on the request to obtain a further assessment."  Penn does not challenge these findings.  


Furthermore, the superior court's finding that Ruby was a child in need of aid relied not  


just  on substantial risk  of substantial physical harm under AS 47.10.011(6) but  also  


parental substance abuse under AS 47.10.011(10), based on Penn's drug use. See Alyssa  


B. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth Servs., 165 P.3d 605,  


618 (Alaska 2007) (holding that because court may find that child is in need of aid based  


on one ground, appeal of only one of multiple grounds for CINA status cannot change  




                                                             -11-	                                                      7638

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

that  might  have  been  admissible,  in  whole  or  in  part,  had  the  report's  writer  testified  but  

were  admitted  without  any  testimony  from  the  expert."   Penn's  lawyer  did  not  object  to  

any  of  these  exhibits  when  they  were  offered,  and  Penn  argues  that  this  demonstrates  a  

prima  facie  case  of  ineffective  assistance  of  counsel.   Penn  focuses  on  June's  domestic  

violence   allegations   against   him   in   a   petition   for   a   protective   order; the   underlying  

complaint   from   Penn's   conviction   for   sexual   abuse   of   a  minor;   June's   allegations   of  

abuse   by   Penn   contained   in   records   from   a   domestic   violence   shelter;   unsupported  

hearsay   regarding  Penn's   history   of   sexual   abuse   and   misbehavior   in   a   2008   risk  

assessment  by  Dr.  Anthony  Mander;  and  similar  unsupported  hearsay  in  a  more  recent  

evaluation  by  Dr.  David  Truhn.   Regarding  the  latter  two  exhibits,  Penn  acknowledges  

that  the  two  psychologists  could  have  testified  to  some  hearsay  contained  in  their  reports,  

as  experts  may  rely  on  facts  not  admissible  as  evidence  where  those  facts  are  "of  a  type  

reasonably  relied  upon  by  experts  in  the  particular  field in forming  opinions or  inferences  

                           21  But neither psychologist testified.  Penn argues that he has shown  

upon  the  subject."                                                                                                  

a prima  facie case of ineffective assistance of counsel and asks us  to remand to the  


superior court for an evidentiary hearing on the issue.  


                    As Penn points out, a parent in a CINA case, "[l]ike an individual being  


prosecuted for a crime, . . . has a constitutional right to the effective assistance of counsel  


in a proceeding to terminate parental rights."22   To decide such claims we use the two- 



pronged Risher test adapted from criminal cases:  


                    Before reversal will result, there must first be a finding that  


                    counsel's conduct either generally throughout the trial or in  

                    one   or   more   specific   instances   did   not   conform   to   the  

                    standard       of    competence          which       we      have      enunciated.   

          21        Alaska  R.  Evid.  703.   

          22        See   V.F.  v.  State,  666  P.2d  42,  44-45  (Alaska   1983).   

                                                             -12-                                                          7638  

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

                    Secondly,   there    must    be    a    showing    that    the    lack    of  

                    competency  contributed  to  the  [termination].[23]  

It is the parent's  burden to  prove both  Risher  prongs;  the parent's failure  to prove one  

of  the  two  is  sufficient  reason  to  reject  the  claim.24  

                   We   "apply   a   strong   presumption   of   competence"   to   an   attorney's  

performance,   including   "the   further   presumption   that  trial   counsel's   actions   were  

motivated   by   sound   tactical   considerations."25  

                                                                          "An   'attorney's   reasonable   tactical  

decisions are virtually immune from subsequent challenge even if, in hindsight, better  

                                                         26   And  we  view  the  disputed  actions  "in  the  

approaches   could   have   been   taken.'   "                                                                            

framework of trial pressures."27  


                   Penn argues that his attorney's failure to object to the disputed evidence  


was  "inconsistent  with  [the  conduct]  of  a  lawyer  of  ordinary  training  and  skill  in  


defending  child welfare  cases."   He  contends that  the  "exhibits  depicted  Penn  as  a  


dangerous sex offender who presented a risk to pre-pubescent children like Ruby, and  


the  hearsay  objection  to  those  records  was  obvious,"  and he  cites  a  series  of  cases  


          23       Id.  at  46  (quoting  Risher  v.  State,  523  P.2d  421,  425  (Alaska   1974)).  

          24       See  Chloe  W.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Off.  of  Child.'s  Servs.,  

336  P.3d   1258,   1265  (Alaska  2014)  (placing  the  burden  for  both  prongs  on  the  litigant  

bringing  the  ineffective  assistance  of  counsel  claim).  

          25       David  S.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Off.  of  Child.'s  Servs.,  270  

P.3d   767,   784   (Alaska   2012)   (quoting   State   v.  Jones,   759   P.2d   558,   569   (Alaska  


          26        Chloe O.v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 309  


P.3d 850, 858-59 (Alaska 2013) (quoting Alexander v. State, 838 P.2d 269, 273 (Alaska  


App.  1992)).  


          27       P.M. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth Servs.,  


42 P.3d 1127, 1131 (Alaska 2002).  


                                                            -13-                                                       7638

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

showing   that  parents'   lawyers   in   termination   proceedings   "routinely   object   to   the  

admission  of  hearsay."   Penn  argues  that  "there  was  no  strategic  advantage  to  be  gained  

by  allowing the state to  characterize Penn as an antisocial sex offender who presented  

a  danger to  pre-pubescent m              inors  and  who  had  a  history  of  sexually  abusing  multiple  

family  members"  and  that  the  attorney's  failure  to  object  was  "objectively  unreasonable,  

satisfying  the  first  prong  of  the  ineffective  assistance  of  counsel  standard."   

                    OCS   and   the   GAL   counter   that   there   is   a   reasonable  justification   for   a  

tactical   decision   not   to   object.     An   objection   may   have   prompted  OCS   to   call   the  

declarants   and   the   psychologists   as   witnesses   and   present   live   testimony  on   these  

sensitive   issues,   which   could   have   been   more   problematic   for   Penn  than   the   paper  

records.28   Furthermore, hearsay is admissible at termination trials for most purposes -  


including findings regarding a parent's failure to remedy conduct, OCS's reasonable  


efforts, and the child's best interests - as long as it is "probative of a material fact, has  


circumstantial  guarantees  of  trustworthiness,"  and  the  opposing  party  had  a  fair  


                                     29    And  some  of  the  statements  Penn  disputes  from  the  

opportunity  to  respond.                                                                                                  


psychological assessments were likely admissible as his own statements.30  Given all this,  



          28        See,  e.g.,  Mute  v.  State,  No.  A-10130,  2010  WL   1838594, at *4 (Alaska  

App.   May   5,   2010)   (quoting   trial   judge's   finding   that   trial   attorney   might   make  

"conscious  decision  not  to  object"  to  evidence  in  order  to  avoid  opposing  party's  attempt  

to  present  it  in  admissible  and  "more  convincing  form").   

          29        CINA Rule 18(f); see, e.g., S.C. v. State, Dep't of Fam. & Youth Servs., No  


S-7649, 1999 WL 33958766, at *1 (Alaska Feb. 10, 1999) (holding in CINA case that  


where "evidence was admissible on the issue of whether there had been and continued  


to be  an imminent and substantial risk  of harm to  [the child,]  . . . counsel cannot be  


faulted for failing to object to it").  


          30        Alaska  R.  Evid.  801(d)(2)  (regarding hearsay  exclusion  for  statements  


offered against a party opponent); Alaska R. Evid. 803(4) (regarding hearsay exception  



                                                             -14-                                                        7638

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

a  competent  attorney  could  have  decided  against objecting  and  requiring  the  court  to  

focus  on  this  evidence  in  order  to  sift  out  the  admissible  from  the  inadmissible.   In  sum,  

we   agree  that   a  reasonable   attorney  may  have  made   a  tactical   decision  not  to   object,  

given the  possible  consequences,  and  Penn's  conclusory  statement t  hat  "there  was no  

strategic  advantage"  is  not  sufficient  to  overcome  the  presumption  of  tactical  decision- 


making.         Because  Penn has  not  shown  that  his  trial  attorney's conduct  "was  below  a  

level  that  any  reasonably  competent  attorney  would  provide"  and  could  not  "have  been  


a  reasonable  tactic,"          we  reject  his  claim  of  ineffective  assistance  of  counsel  and  do  not  


need  to  reach  the  prejudice  prong  of  the  analysis.                  We  therefore  affirm  the  termination  


          30        (...continued)  

for  statements  made  for  purpose  of  medical  treatment).   

          31        See   Steffensen   v.   State,   837   P.2d   1123,   1126-27   (Alaska   App.   1992)  

(rejecting   argument   that   attorney   acted   incompetently   by   failing  to file   suppression  

motion  over  petitioner's  argument  that  "there  was  everything  to  gain  and  nothing  to  lose  

by  filing"   such  motion,  and  holding  that  petitioner  had  not  overcome  presumption  of  


          32        Chloe W. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 336  


P.3d 1258, 1265-66 (Alaska 2014).  


          33        See id. at  1265 ("It is not necessary to address the first prong of the test  


when the litigant has not satisfied the second prong.").  We note the parties' different  


understandings of the applicable standard under the second Risher prong.  Penn argues  


that he must only show "a reasonable doubt that the incompetence contributed to the  


outcome," citing Risher v. State, 523 P.2d 421, 425 (Alaska 1974).  The GAL, on the  


other hand argues that Penn must show that improved performance "would have changed  


the outcome of trial," citing David  S. v. State, Dep't  of Health  & Soc. Servs.,  Off. of  


Child.'s Servs., 270 P.3d 767, 786 (Alaska 2012) (holding that a father had failed to  


show that "an improved . . . performance would have made a difference in the outcome  


of his case").  OCS uses the same language as the GAL.  We do not need to resolve this  


difference here because of our holding that Penn has not met the first Risher prong.  


                                                             -15-                                                        7638

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

          C.	       We    Decline    To    Adopt    Penn's    Proposed    Framework    For    Our  

                    Consideration  Of  Allegations  Of   Ineffective  Assistance  Of  Counsel  In  

                   Parental  Rights  Termination  Cases.   

                   Penn  asks  us  to  establish  a  new  framework  for  our  consideration  of  claims  

of  ineffective  assistance  of  counsel  in  parental  rights termination  cases.  His  proposal,  

modeled after  criminal post-conviction relief actions initiated in the superior  court, would  


"use  the  appellate  process  to  essentially  screen  ineffective  assistance  claims."                          Parents  


would bring such claims "contemporaneously with other appellate claims in an opening  


brief challenging a termination order," as Penn did here.  According to Penn, "When  


[the] opening brief establishes a prima facie case of ineffective assistance of counsel -  


and only then - this court would remand the case to the trial court for litigation on that  


claim (assuming it does not reverse the termination order on other grounds)."  


                   To establish a prima facie case under Penn's model, the parent would have  


to  show  both  "an  act  or  omission  by  the  lawyer  at  trial  that  could  be  considered  


unreasonable" and causation - i.e., "that the unreasonable act or omission contributed  


                                                                                      The  presumption  of  attorney  

to the decision to terminate [the parent's] parental rights." 

competence   and   tactical decision-making   would   not   apply   at   this   stage   of   appellate  

review,  thus  "obviat[ing]  the  need  for  this  court  to   speculate  why  a  lawyer  acted  and  

whether  that   speculative  tactical   decision  was  reasonable."    Our   consideration   of  the  

claim  would  be  limited  to  determining  "whether  the  parent  has  pointed  to  'facts  which,  

if  true,  would  entitle  the  applicant  to  the  relief  claimed'  ";  if  so,  we  would  remand  the  

          34       See   AS   12.72.010-.040   (outlining   post-conviction   relief   procedures   in  

criminal  cases);  Alaska  R.  Crim.  P.  35.1  (same).  

          35       Penn   limits  his   argument   "to   claims   of   ineffective   assistance   of   counsel  

relating  to the lawyer's actions or failure to act at trial," noting that "claims relating to  

a  lawyer's  representation  outside  of  what  occurred  at  trial  would  not  appear  in  the  record  

on  appeal"  and  would  have  to  be  factually  developed.   

                                                            -16-	                                                      7638

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

case  to  the  superior  court  for  evidentiary  proceedings.   If,  on  the  other  hand,  the  parent  

failed  to  make  out  a  prima  facie  case,  we  would  "resolve  the  claim  in  the  direct  appeal,  


minimizing  delay  and  the  risks  that  follow."                     

                    Applying  this  framework  to  his  own  case,  Penn  argues  that  he  has  set  out  

a prima facie case for ineffective  assistance.  He contends that his  attorney's failure to  

object  to  the  hearsay  evidence  was  objectively  unreasonable;  that  the  record  does  not  

clearly  show  a  tactical  reason  for  the  failure,  and  we  cannot  speculate  that  there  was  one;  

and   that   we   should  therefore   remand   his   claim   to   the   superior   court   for   factual  

development.   We reject Penn's ineffective assistance claim for the reasons given above,  

but  we  again  set  out  the  ways  in  which  we  consider  claims  like  his.   

                    We  have  said  that  we  resolve  ineffective  assistance  claims  "as  presented  to  

      37  This has included deciding claims on direct appeal even though they were not  


raised in the trial court.38   We have also considered an appeal of a superior court's denial  



                                                                                                                      39  Our  

of an Alaska Civil Rule 60(b)(6) motion alleging ineffective assistance at trial.                                          


cases allow - and will continue to allow - parents the flexibility to decide whether to  


          36        Penn   concedes   that   "[t]he   record   on   direct   appeal   .   .   .   will   rarely   be  

sufficient for this court to conclude that  the lawyer's representation was  not  effective"  

(emphasis  added).    

          37        Chloe W., 336 P.3d at 1266.  


          38        See, e.g., V.F. v. State, 666 P.2d 42, 45-47 (Alaska 1983); Chloe O. v. State,  


Dep't  of Health  & Soc. Servs.,  Off. of Child.'s Servs., 309 P.3d  850, 858-59 (Alaska  


2013) (deciding claim on direct appeal despite mother's request for remand to trial court  


for evidentiary hearing); cf. Geisinger v. State, 498 P.3d 92,  112 (Alaska App. 2021)  


(recognizing that  direct appeal is appropriate only in those  "rare instances where  an  


attorney's incompetence is plain from the record of the underlying trial").  


          39        David S. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 270  


P.3d 767, 784 (Alaska 2012).  


                                                             -17-                                                        7638

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

bring a   claim   of   ineffective   assistance  to  us   on   direct   appeal   or  to  the   superior   court  


through  a  Rule  60(b)(6)  motion.                 We  will  continue  to  resolve  these  claims  as  they  are  

presented  to  us, which means that we will apply the  presumption of  competence  when  

considering  the  first  Risher  prong  on  direct  appeal.   

                    We  acknowledge  that  in  other  circumstances  we  have  refused  to  entertain  

ineffective  assistance  claims  brought  on  direct  appeal.41  

                                                                                    Penn  criticizes  our  decision  to  

reject  such  claims  on  the  merits  in  CINA  cases,  noting  that  "[t]he  record  on  direct  appeal  

may  be  sufficient  for  this  court  to  conclude  that  a  lawyer's  representation  was  effective,  

but  it  will  rarely  be  sufficient  for  this  court  to  conclude  that  the  lawyer's  representation  

was   not   effective."     Quoting   V.F.   v.   State,   he   argues   that   the   record   "will   seldom  

          40        We  have  acknowledged  the  rare  case  in  which  we  may  conclude  that  an  

ineffective  assistance  claim  raised  on  direct  appeal  is  not  proven  but  still  requires  further  

factual  exploration on remand  to  the  superior  court.   See   Chloe   W.,  336  P.3d  at   1266  

(noting   our   prior   "implicit[]   recogni[tion]   that   we   would   remand   for   an   evidentiary  

hearing  if  it  were  appropriate");  Risher  v.  State,  523  P.2d  421,  425  n.20  (Alaska   1974)  

("At   times   it  may  be  necessary   to  remand   for   an   evidentiary  hearing   on   [the   second  

prong].     For   example,   if   [an   appellant]   contend[s]   that   trial   counsel   could   have  

discovered  helpful  evidence,  we  might  remand  for  a  hearing  on  that  issue.").   

          41        See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 383-84 (Alaska  


2007) (holding in context of appeal of commitment and involuntary medication hearing  


that ineffective assistance claim "cannot be effectively reviewed for the first time on  


appeal"  and  therefore  declining  to  address  merits  of  patient's  argument,  instead  


instructing her to bring motion for relief under Civil Rule 60(b) or habeas corpus petition  


under Alaska Civil Rule 86), overruled on other grounds by In  re Hospitalization  of  


Naomi B., 435 P.3d 918 (Alaska 2019)); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska  


App. 1984) (holding that in the criminal context, absentplain error, ineffective assistance  


of counsel claims must first be brought to the trial judge as a motion for a new trial or an  


application for post-conviction relief ).  In Wetherhorn we expressed sentiments similar  


to Penn's here, writing:  "In this case, we cannot review a claim for ineffective assistance  


of counsel without  an  explanation in the record  for counsel's  actions; otherwise we  


become  engaged  'in the  perilous  process  of  second-guessing.'  "                                  156 P.3d  at  384  


(quoting Barry, 675 P.2d at 1295).  


                                                             -18-                                                        7638

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

establish   'the range of  reasonable  actions  which might have been taken by an attorney  


skilled   in   the   law,'   "         or   that   the   "attorney   did   not   engage   in   the   complained-of  

representation  for  a  tactical  reason."   He  argues  that  in  rejecting  past  claims  brought  on  

direct  appeal,  we  have  had  to  resort  to  speculation  about  the  tactical  nature  of  a  counsel's  

decision  or  the  impact  of  an  error  on  the  trial's  outcome.    

                     Justice   Bolger  raised   similar   concerns in   a   concurrence   in   Chloe   W.,   in  

which   he   disagreed   with   our   decision   to   review   the   mother's   ineffective   assistance  


claim.        He  observed  that  because   she  had  not  raised  the  claim  in  the   superior  court,  

there   was   no   order   for   us   to   review   and   the   record   contained   no   explanation   of   her  


attorney's   decision.               Therefore,   Justice   Bolger   concluded,   "the   record   is   simply  

inadequate  to  make  out  a  case  of  ineffective  assistance  of  counsel"  and  we  should  have  

                                                      45   He  suggested  instead  that  a  litigant  should be  

"simply   decline[d]   direct   review."                                                                                         

required to "establish a record concerning counsel's challenged acts or omissions by  



applying to the trial court to seek a new . . . hearing."                             


                     The court in  Chloe  W. responded by observing that it was the mother's  


choice to raise her ineffective assistance claim for the first time on appeal.47                                     We wrote:  



"She has new  counsel on appeal who had  an opportunity to evaluate the ineffective  


          42         666  P.2d  at  46.  

          43         Chloe   W.,  336  P.3d  at   1271-73  (Bolger,  J.,  concurring).  

          44        Id.  at   1271-72.   

          45        Id.  at   1273.   

          46        Id.  at   1272.   

          47        Id.   at   1267   (majority   opinion).    Penn's case   is   arguably   different   from  

Chloe   W.   in   that   he   has   not   asked   us   to   decide   the   ultimate   question   of   whether   he  

received  ineffective  assistance;  he  has  asked  instead  for  a  remand.   

                                                               -19-                                                          7638

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

assistance  of  counsel  claim  and  how  it  might  best  be  presented.   She  raised  the  claim  on  

direct  appeal  but  failed  to  substantiate  it  based  on  the  record  before  us."48  

                   Although  we  understand  Justice  Bolger's  stated  concerns  in  Chloe  W.,  we  


reiterate  - in  agreement  with  a  number  of  other  states'  courts                    - that  CINA  cases  merit  

an  exception  to  our  typical  rule  requiring  that  an  issue  must  first  be  raised  and  decided  

in the trial court  before it may be considered on appeal.   Our  position  is  driven largely  

by  expediency;  delayed  resolution  of  CINA  cases  "adversely  affects  the  parties'  rights,  

extends uncertainty   in  the   child's   life   .   .   .   ,   and   increases  the  possibility   of  the   child  


suffering  permanent  harm."                And  the  "language  and  spirit"  of  Alaska's  statutory  CINA  


scheme  instruct  us  to  resolve  these  cases  expeditiously.                    We  will  therefore  continue  our  

practice  in  CINA  cases  of  reviewing  ineffective  assistance  claims  as  they  are  brought  to  

us   on   the   record   we   are   given   and   applying   our   presumption   of   competence   in   that  


V.        CONCLUSION  

                   We AFFIRM the order terminating Penn's parental rights.  


          48       Id.   

          49       See  id.  at   1266  (observing  that  direct  appeal  is  the  majority  approach  and  

"generally  is  faster  and  minimizes  delay").  

          50       Id.  

          51       See  Chloe  O.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Off.  of  Child.'s  Servs.,  

309  P.3d  850,  858  (Alaska  2013)  ("Our  statutes  make  clear  that  children's  proceedings  

are  to  be   expeditiously  resolved.   .   .   .   [For  example,]  AS  47.10.088(k)  requires   a  trial  

court  to  rule  on  a  termination  petition  within  90  days  after  the  last  day  of  the  termination  

trial.   AS  47.10.080(i)  imposes  a  similar  90-day  limit  for  an  appeal  to  be  decided.").  

                                                            -20-                                                       7638

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