Diego K. and Catharine K. v. State, Dept. of Health & Social Services, Office of Children's Services
411 P.3d 622
Alaska2018Background
- Diego and Catharine K. are parents of Mary, a 16‑year‑old Indian child under ICWA; OCS took emergency custody of Mary and her brother in March 2014 after reports of parental intoxication and related neglect.
- Parents stipulated to CINA adjudication for neglect (AS 47.10.011(9)) and the children remained in temporary OCS custody pending disposition.
- OCS sought an order authorizing removal of Mary from parental custody; the court held multiple status hearings (some informal, unsworn) over 2015–2016 and a removal hearing in April 2016.
- At the removal hearing OCS presented sworn expert testimony (Dr. Warren) and other witnesses; the court found by clear and convincing evidence that Mary was harmed by lack of parental supervision and ordered removal.
- On remand the superior court confirmed it had relied on information from prior status hearings — including unsworn statements from OCS caseworkers — to make its ICWA active‑efforts finding. The Supreme Court vacated the removal order and remanded for a new removal hearing.
Issues
| Issue | Plaintiff's Argument (Parents) | Defendant's Argument (OCS) | Held |
|---|---|---|---|
| Whether the court improperly relied on unsworn statements from status hearings to make ICWA removal findings | Trial court erred by using unsworn, inadmissible statements (not under oath) to satisfy active‑efforts and other ICWA requirements | Status hearings are routine, and the parents failed to preserve objections to cumulative unsworn statements; some unsworn reports are permitted by CINA rules | Court held it was reversible error to rely on substantial unsworn statements (not admitted under evidence rules) to support removal; vacated order and remanded for a new removal hearing |
| Whether active efforts under 25 U.S.C. § 1912(d) were proven by clear and convincing evidence | Active‑efforts finding was unsupported because the court relied on unsworn status updates rather than admissible evidence | OCS pointed to caseworker actions and prior testimony as demonstrating active efforts | Court required that active efforts be proven with evidence admitted pursuant to rules; reliance on unsworn statements was insufficient |
| Whether procedural due process was satisfied when unsworn reports were considered | Parents lacked notice and opportunity to rebut unsworn statements used for removal findings | OCS relied on ongoing case communications and argued procedural facets of status hearings | Court emphasized due process requires notice and opportunity when unsworn information will be used for dispositive findings; status hearings cannot substitute for admissible evidence when making removal decisions |
| Whether objections had to be raised contemporaneously at each status hearing to preserve review | Parents argued they could not reasonably anticipate the court would later rely on unsworn statements and thus were not required to object at each status hearing | OCS argued lack of contemporaneous objections waived the issue | Court held contemporaneous objections were not required because parents could not know the court would later base dispositive findings on those unsworn remarks; issue preserved and reversible error found |
Key Cases Cited
- Pravat P. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 249 P.3d 264 (Alaska 2011) (standard of review for CINA/ICWA findings and evidentiary sufficiency)
- Dale H. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 235 P.3d 203 (Alaska 2010) (review principles for CINA proceedings)
- Christina J. v. State, Dep’t of Health & Social Servs., Office of Children’s Servs., 254 P.3d 1095 (Alaska 2011) (active‑efforts under ICWA must be proven by clear and convincing evidence)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (heightened procedural protections required when parental rights are at stake)
- Debra P. v. Laurence S., 309 P.3d 1258 (Alaska 2013) (due process requires adequate notice and opportunity to be heard in custody proceedings)
- Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562 (Alaska 2015) (trial court’s duty to control proceedings and exclude irrelevant or prejudicial matters)
- Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996) (affirming court’s authority to exclude inadmissible evidence sua sponte)
- Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998) (procedural due process standard for notice and hearing)