ALEX H., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children‘s Services, Appellee.
Supreme Court No. S-16206
Supreme Court of Alaska.
February 10, 2017
The Florida Court of Appeals felt the same way.14 The Washington Court of Appeals followed Howton, but it did so in the narrow context of an “intentionally tortious act“: the insurer‘s intentional misrepresentations about when settlement funds would be paid.15 The court affirmed the dismissal of claims for violation of unfair claims settlement practices regulations, breach of the duty of good faith and fair dealing, and breach of contract.16
I conclude that, given the potential for conflicting duties that was at the heart of our decision in O.K. Lumber,17 any “new and independent” duty to the claimant should be based on either (1) conduct or commitments by the insurer after the claims against the insured have been resolved (i.e., after the insurer has fully satisfied its fiduciary duty to the insured) or (2) a truly “new and independent” duty, that is, one not simultaneously owed to the insured by virtue of the insurance contract (i.e., a duty of reasonable care any actor would owe another—when driving, when holding a ladder, when lighting a match near a gas leak). Neither of these conditions exists when the claimant‘s damages, proximately caused by the conduct of the tortfeasor, increase due to insurer inaction while the insurer is acting in the course of its fiduciary duty to its insured. Because the “new and independent” duty the court recognizes today is essentially indistinguishable, either temporally or in substance, from the duty GEICO was pursuing on behalf of its insured, I would affirm the superior court‘s grant of summary judgment to GEICO.
Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and James E. Cantor, Acting Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating.]
OPINION
WINFREE, Justice.
I. INTRODUCTION
A prisoner challenges the superior court‘s denial of his request for transport to attend in person his parental rights termination trial, and, therefore, the ultimate termination of his parental rights. He argues that when denying his transport request the court: (1) abused its discretion by concluding in its statutory analysis that transport was not required; (2) abused its discretion or erred by failing to consider all required factors for the statutory analysis; and (3) separately violated
II. FACTS AND PROCEEDINGS
Alex and Maeve H. were married and the biological parents of daughter Portia, son Roman, and daughter Audra, aged 18, 16, and 14, respectively, at the time of the parental rights termination trial.1 In early October 2013 the Office of Children‘s Services (OCS) received allegations that Portia and Audra were being sexually abused by Roman; OCS filed an emergency petition to adjudicate the two sisters as children in need of aid and obtain temporary custody.
In forensic interviews Portia and Audra reported that Alex frequently had genital, anal, and oral sex with them, and that this abuse started when they were as young as four years old. Both sisters reported that Roman had told them that Alex had penetrated him anally, as well. The sisters both described an incident when Alex forced all three children to have oral and vaginal sex with him and each other. Portia said she had told Maeve about the abuse multiple times, but Maeve had done nothing to intervene. OCS subsequently filed an emergency petition to adjudicate Roman as a child in need of aid and obtain temporary custody.
Alex was arrested and indicted for 27 counts of first degree sexual abuse of a minor. OCS petitioned in September 2014 to terminate Alex‘s and Maeve‘s parental rights. The parties agreed to conduct the termination trial after Alex‘s criminal trial was completed. The children‘s guardian ad litem preferred waiting for the criminal case to conclude before conducting the termination trial because the children might then be exposed to confrontation only once—the children‘s criminal case testimony could be admitted in the termination case so that they would not have to testify a second time.
Alex‘s criminal trial concluded on August 14, 2015, when a jury found him guilty of 13 counts of first degree sexual abuse of a minor. All three children testified at the criminal trial, as did both Maeve and Alex.
At a July pretrial conference—shortly before Alex‘s criminal trial—the parties scheduled the termination trial for early October. On September 28, one week before the scheduled termination trial and only one day prior to the final pretrial conference, Alex sought an order pursuant to
In January 2016 the superior court terminated both Alex‘s and Maeve‘s parental rights to all three children.3 Alex appeals the termination order, arguing that the court abused its discretion and erred by denying the statutory transport request and that his right to due process was violated when the court denied him the right to personally attend the termination trial.4
III. STANDARD OF REVIEW
We generally review decisions regarding prisoner transport under
“We review de novo whether a decision requiring a parent who is a state prisoner to participate telephonically rather than be transported violates his right to due process.”8 “On that question, we will adopt the rule most persuasive in light of precedent, reason, and policy.”9
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Denying Alex‘s Statutory Transport Request.
Alaska Statute 33.30.081(f) provides that a court may order transport of a prisoner who is a party to a civil action “only if the court determines ... the prisoner‘s personal appearance is essential to the just disposition of the action.... [T]he court shall consider available alternatives to the prisoner‘s personal appearance including deposition and telephone testimony.” In Richard B. v. State, Department of Health & Social Services, Division of Family & Youth Services we identified and adopted factors other states commonly use when considering prisoner transport requests: (1) “costs and inconvenience of transporting a prisoner“; (2) “potential danger or security risk“; (3) “substantiality of the matter“; (4) “need for an early determination of the matter“; (5) “possibility of delaying trial until the prisoner is
Alex argues that the superior court abused its discretion by denying his
1. The superior court‘s decision, based on the factors presented to it, was not an abuse of discretion.
We first address Alex‘s claim that the superior court abused its discretion by “reach[ing] the wrong result based on the information before it,” namely the arguments, authority, and factors presented in Alex‘s transport motion and DPS‘s opposition.
Both Alex and DPS failed to bring to the superior court‘s attention the eight factors we adopted in Richard B. for “deciding whether to grant an incarcerated parent‘s request to be transported to a termination trial” under
Alex concedes that the four factors the superior court relied on were all relevant to its inquiry whether transport was required under
a. First factor: The State was bringing the action
The first factor the superior court considered was “whether the matter is one being prosecuted by the State of Alaska, as opposed to one initiated by the prisoner.” DPS conceded in its opposition, and the court concurred, that factor favored Alex because OCS initiated the termination trial.
DPS imported this factor from the Richard B. due process discussion, and it does not neatly align with any of the eight factors we said courts should consider when determining whether
b. Second factor: The importance of the interest at issue
The second factor the superior court considered was “the importance of the interest at issue.” This was derived from the first Mathews due process factor21 and is analogous to the third Richard B. statutory factor.22 Alex‘s parental rights were at issue; it is undisputed that “[p]arents have a fundamental right to the care and custody of their children and this right does not immediately cease when a parent is incarcerated.”23 In Richard B. we considered the importance of this right as a factor favoring transport under
We briefly note an argument DPS made in its opposition: that this factor “may be slightly diminished ... given that [Alex] has already been convicted in a criminal case of sexually abusing ... his children.” DPS argued the factor merited diminished consideration because Alex already had a legal proceeding with the opportunity “to be present and confront witnesses,” he had been convicted under a higher burden of proof than he faced at the termination trial, and a material factual allegation against him had already been established. OCS endorses this reasoning on appeal, noting further that Alex had not intended to testify at the termination trial. These arguments are misguided. The
c. Third factor: The probable value added by in-person as opposed to telephonic attendance
The third factor the superior court considered was “the probable value added by in[-]person attendance rather than telephonic participation.” This factor was derived from the second Mathews due process factor26 and is analogous to the eighth Richard B. statutory factor.27
In his transport request Alex indicated that he had no intention of testifying at the termination trial, but “asserted that his presence was necessary to ensure his ability to consult with his counsel in a meaningful fashion and in order to protect his interest in confronting and cross-examining the witnesses against him.” Alex argued that telephonic participation “would necessarily dilute” his rights “to confront and cross-examine witnesses and assist counsel during trial“; he also expressed concern that “[t]elephonic participation ... would ... create inefficiencies during trial as [it] may necessitate frequent breaks” to consult with counsel.
But we have regularly found that in-person attendance at a termination hearing is not necessary to ensure a just disposition in general, or to safeguard the rights Alex cites in particular. We have recognized the particular importance of in-person attendance under the
In E.J.S. v. State, Department of Health & Social Services we held that a father was not denied his rights to effective assistance of counsel or to confront and cross-examine witnesses against him in a termination trial he attended telephonically, even though he alleged he could not hear the proceedings.30 We noted that the father‘s attorney was present and effectively cross-examined the witnesses, that the father could hear the proceedings well enough to promptly respond to questions posed to him, and that telephonic participation was authorized by court rule.31 Similarly, Alex‘s attorney was present and conducted effective cross-examination, and as OCS noted she “objected to the admission of certain evidence and otherwise participated” in the trial. The superior court regularly ensured that Alex could hear the proceedings, and his attorney consulted with him in private throughout the trial. And here the superior court not only was authorized to consider the viability of telephonic participation, it was required by statute to do so.32
d. Fourth factor: The State‘s interest against transport
The fourth factor the superior court considered was “the [S]tate‘s interest in avoiding the costs, administrative burdens, and diversion of its limited resources to transport of the prisoner.” This was derived from the third Mathews due process factor33 and is analogous to the first Richard B. statutory factor.34
In Seth D. v. State, Department of Health & Social Services, Office of Children‘s Services we advised that when opposing transport requests the State “must provide a specific showing” detailing what expenses and burdens it expected to incur if the transport were ordered.35 The showing might address issues such as how the transport would “affect[] personnel assignments, security, and expense” and any security risks the prisoner posed.36
DPS made a specific showing when it opposed Alex‘s transport request. DPS detailed the costs and burdens that transport would impose, including not only the resource expenditure associated with transporting Alex from the Fairbanks jail to the Fairbanks courthouse, but also the burden of flying in an additional judicial service officer from Anchorage and stationing that officer in Fairbanks for the week of the trial. Alex argues that: those latter burdens are not properly attributable to him and should therefore not factor into the inquiry; under a proper accounting this factor favors him; and the superior court thus abused its discretion by denying his transport request in reliance on DPS‘s accounting.
Central to the argument that the burdens are attributable to Alex is the fact that he submitted his transport request only one week before the trial was scheduled to commence. The superior court found it “problematic that [Alex] wait[ed] until the eleventh hour to seek relief for an issue he contends is a fundamental due process consideration” when he had known the date of the trial for more than two months and had been in custody for most of that time. DPS was facing significant logistical challenges in Fairbanks during the week of Alex‘s trial due to a lengthy ongoing multi-litigant trial; judicial service officers were already being flown in to accommodate staffing shortages. DPS asserted a substantial burden if the transport request were granted because “other court orders already in place or expected” limited its available resources, and the “last minute nature of [the] request does not provide sufficient time to re-arrange work schedules for judicial service officers in Fairbanks ..., much less rearrange scheduled leave or training.”
Alex argues that DPS should not “assign[] its staffing shortages and consequent reshuffling of resources to [him] as costs of transport. DPS should not be permitted to use creative cost-accounting strategies to deny a parent‘s transport motion.” He further asserts that “if this tactic is permitted, it is unlikely that any prisoner will ever prevail on a transport motion because DPS will always be able to identify the proximate costs of a prisoner‘s transport in the manner it did here.”
Alex‘s arguments might have had merit had he more promptly submitted his trans-
e. Weighing the factors
Alex alleges that the superior court abused its discretion by “reach[ing] the wrong result based on the information before it” when denying his
2. Alex waived his right to argue that the superior court failed to consider other necessary factors.
We next address Alex‘s argument that the superior court erred or abused its discretion because it “adopted DPS‘s improper analysis of the issues,” considering only the four factors discussed above that were raised in DPS‘s opposition. As Alex notes, OCS “acknowledges that the court abuses its discretion when it ... fails to consider required factors in reaching a decision,” and “concedes that Richard B. sets forth eight factors courts should consider in deciding whether to grant an incarcerated parent‘s transport request.”
OCS maintains that Alex‘s argument cannot serve as a basis for finding an abuse of discretion because the argument is new on appeal. OCS correctly notes that “Alex did not present to the [superior] court the eight factors” listed in Richard B. Although Alex cited
Notes
A court may order a prisoner who is a party or witness to a civil action or a witness to a criminal action to appear at a place other than within a correctional facility only if the court determines, after providing a reasonable opportunity for [DPS] to comment, that the prisoner‘s personal appearance is essential to the just disposition of the action. In making its determination, the court shall consider available alternatives to the prisoner‘s personal appearance including deposition and telephone testimony.
- by clear and convincing evidence that
- the child has been subjected to conduct or conditions described in
AS 47.10.011 and- the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
- the parent has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child at substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; [and]
- the child has been subjected to conduct or conditions described in
- by clear and convincing evidence that
- the Department has complied with the provisions of
AS 47.10.086 concerning reasonable efforts; [and]
- the Department has complied with the provisions of
- by a preponderance of the evidence that termination of parental rights is in the best interests of the child.
Alex is correct that the superior court failed to consider all of the prescribed Richard B. factors.43 But he failed to bring those factors to the court‘s attention, both in his original transport request and on the first day of trial when the court asked if the parties had anything to add to the DPS opposition before it ruled on the motion. Where a party has failed to sufficiently raise
3. The superior court‘s failure to address all the Richard B. factors was not plain error.
Although Alex waived his right to argue that the superior court should have considered all eight Richard B. factors, we may nonetheless review the issue for plain error.45 “[P]lain error exists in a CINA case where an obvious mistake has been made which creates a high likelihood that injustice has resulted.”46 There is no such high likelihood of injustice here because considering all eight factors would not have benefitted Alex.
Alex concedes the four factors the superior court relied upon were relevant to its
Most significantly Alex fails to acknowledge that the sixth Richard B. factor, “the probability of success on the merits,”47 is not in his favor. Alex‘s criminal conviction is relevant to that inquiry. As the superior court ruled, “the doctrines of res judicata and collateral estoppel apply in this case with respect to [Alex‘s] criminal convictions, and ... [Alex] did sexually abuse the three children.” This virtually foreclosed the possibility that Alex‘s children would not be found in need of aid,48 diminishing Alex‘s probability of success on the merits in his parental rights termination trial. In spite of that low probability Alex argues that his criminal conviction should have allowed him “enhanced protections” because he was “facing the destruction of [his] family.” He quotes Santosky v. Kramer for the proposition that the fundamental right to parent “does not evaporate simply because [the parents] have not been model parents or have lost temporary custody of their child to the State.”49 But that case, involving federal due process rights, is not relevant to this independent statutory inquiry.50 And because “probability of success
Alex makes no substantial argument that any Richard B. factor the superior court failed to consider would favor him, and he fails to recognize that at least one factor, the “probability of success on the merits,” would militate strongly against him.51 Because it is unlikely that consideration of the other Richard B. factors would have resulted in a different outcome, there is no “high likelihood that injustice has resulted” from the court‘s failure to sua sponte address those factors, and so there is no plain error.52
4. The superior court did not exact a penalty for Alex‘s assertion of his right against self-incrimination.
Alex argues that his decision not to testify should not weigh against him in an
We conclude that no penalty has been exacted on Alex‘s assertion of the right against self-incrimination. The inquiry under
B. The Superior Court Did Not Violate Alex‘s Due Process Rights By Denying His Transport Request.
We next consider Alex‘s constitutional due process claim.57 The “right to the care and custody of one‘s own child is a fundamental right recognized by both the federal and state constitutions,”58 and therefore “falls within the protections of the due process clause.”59 However, “case law has not established a procedural due process right of incarcerated parents to be transport-
“Although transportation of an incarcerated parent to attend a termination trial is not required by due process,” we nonetheless in each case apply “the balancing test of Mathews v. Eldridge to determine whether a parent was deprived due process.”62 That balancing test requires consideration of three factors:
First, the private interest that will be affected ...; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.63
When applying this test we have noted that “[t]he crux of due process is opportunity to be heard and the right to adequately represent one‘s interests,”64 but that the precise process due varies with the “particular set of circumstances” of the case.65 In cases involving a prisoner petitioning for transport to a parental termination proceeding, courts must “consider all relevant factors, including the disputed issues, whether a parent plans to testify, the relevance of a parent‘s testimony to the disputed issues, the costs to the state ... and any threat to public safety.”66
1. First factor: The private interest affected weighs in Alex‘s favor.
The first Mathews factor, “the private interest that will be affected,” clearly weighs in Alex‘s favor, and OCS concedes as much.67 It is well established that “[t]he right to custody of one‘s own child ‘clearly falls within the protections of the due process clause and should be accorded significant weight.’ ”68
Although this first factor already weighs in Alex‘s favor, he attempts to gain further balancing weight by arguing that his parental rights are “not the only interest implicated in the court‘s decision” and that his right to counsel and right to present a defense were also affected and should receive consideration. Alex argues that “[b]oth of these fair trial rights are critical to the protection of the right to parent; thus, they deserve distinct consideration and weigh heavily in the due process balancing.”
Alex‘s argument that these fair trial rights deserve independent consideration and balancing weight under the first factor of the Mathews test is unsound. The Mathews test‘s purpose is determining precisely what process is due in varying circumstances
Rather than giving separate weight to the various procedural rights independently established under the due process clause, inquiry under the first Mathews factor into “the private interest that will be affected”71 is properly limited to the significance of the underlying substantive right requiring protection.72 Whether attendant procedural rights were inadequate or unduly infringed is relevant in this context under the second Mathews factor, below—but only to the extent Alex demonstrates that additional safeguards would have “reduc[ed] the risk that [his] parental rights might be erroneously terminated.”73
2. Second factor: The risk of erroneous deprivation and the probable value of additional procedural safeguards weigh against Alex.
Under the second Mathews factor “a theoretical possibility of prejudice is not enough; ... a court must assess ‘the probable value’ of [the requested procedure] in reducing the risk that parental rights might be erroneously terminated. Thus, a court must consider the likelihood that [the requested procedure] might alter the outcome.”74 To answer that question we “assess the ways which [the parent] claims she might have been prejudiced. This is not the same as determining whether any constitutional error was harmless, but more fundamentally considers whether” failure to provide the requested procedure deprives the parent of a sufficient opportunity to present a case.75 “In deciding whether it might, we consider the issues presented in a termination proceeding, and a parent‘s ability to protect her interests at the ... proceedings.”76
Alex asserts that his inability to attend in person his parental rights termination trial risked impairing his right to counsel and his right to present a defense. An analysis of the issues that were to be presented at Alex‘s termination trial demonstrates that granting the transport request was unlikely to have altered the proceedings’ outcome. A review of the record and Alex‘s single claim of actual prejudice confirms this “theoretical analysis.”77
Alex makes a number of assertions about the generic benefits of close attorney-client communication and in-person attendance and suggests that those benefits should weight the second Mathews factor in his favor because they “would have ensured Alex received a fundamentally fair trial.” But we have previously held that the generic benefits of in-person attendance do not suffice to establish a per se due process right for a prisoner to be transported to a termination trial.78 To establish a due process right to transport a prisoner must address the particular issues being determined at the termination trial and identify how in-person attendance would reduce the risk of an erroneous ruling on those issues.79
The issues to be decided at Alex‘s termination trial were circumscribed as a consequence of his criminal conviction. As discussed earlier Alex‘s conviction virtually foreclosed the possibility that his children would not be found in need of aid under
case against him; he ultimately argued only that there was no continuing danger to the children due to his incarceration and that Maeve‘s parental rights should not be terminated because she had not abused the children. Maeve was represented by counsel and present at the trial to independently defend against allegations that she had caused the children to be in need of aid. There is no reason to believe Alex‘s presence at the proceedings would have affected the court‘s ruling on that issue.
When addressing in his Proposed Findings of Fact and Conclusions of Law whether OCS made sufficient reasonable efforts to help the parents remedy their behavior that rendered the children in need of aid,82 Alex deferred entirely to Maeve‘s arguments. It is unlikely Alex could have better assisted his attorney in arguing this issue during the trial had he attended in-person, as the record is clear that Alex had no personal knowledge of OCS‘s efforts because he had refused to engage with the caseworkers. Finally, it is unlikely Alex‘s in-person attendance would have assisted his attorney in litigating the best interests of the children.83 He had not been allowed visitation or contact with the children in two years, the children were themselves represented by a guardian ad litem, and the only argument he made on that issue in his Proposed Findings was to note the children had “never reported any abuse at the hands of their mother,” a position Alex‘s counsel could assert at trial without Alex‘s presence.
b. A review of the record confirms that Alex‘s interests were sufficiently protected without transport.
Similar to D.M. v. State, Division of Family & Youth Services, “[o]ur theoretical analysis of the second Mathews prong is confirmed by our review of the record, and by [Alex‘s] failure to identify any plausible way that [he] was prejudiced in the termination proceedings.”84 Alex argues that “in-person attendance promotes fulfillment of the right to counsel.” He notes that “the right to counsel is ... illusory absent effective communication between the attorney and the parent,” and that the “need for close communication is particularly compelling in termination trials, where the proceedings typically address many events over the course of several years” making “the client‘s recall and ability to consult with the attorney ... critical.” But Alex does not assert that he and his attorney were unable to effectively communicate. The superior court regularly ensured that Alex could hear the proceedings, and Alex consulted with his attorney in private throughout the trial.
Alex next argues that “a parent‘s personal presence protects the parent‘s right to present a defense,” and notes that this is broader than merely the right to provide testimony. It includes, for instance, “the right to introduce evidence that might otherwise be barred by evidentiary rules” and the right “to confront and cross-examine witnesses and assist counsel during trial.” Alex maintains that had he been present, he “could have proposed lines of questioning and assisted his attorney in deciding the best strategy for defending his parental rights. He could have filled in gaps in the facts and aided his attorney in reviewing exhibits for accuracy.” But Alex fails to point to any evidence he would have introduced or lines of questioning he would have proposed had he attended the trial in person. He points to no factual gaps, and he fails to note that virtually all of the termination trial testimony was provided by two OCS caseworkers with whom he had refused to engage. There was no actual prejudice to his right to present a defense or indication that in-person attendance would have altered the outcome.
c. The single instance of possible judicial interference does not demonstrate that Alex‘s presence would have reduced the risk of erroneous deprivation.
Alex asserts that a “colloquy” between his lawyer and the superior court regarding Alex‘s request to call his children as witnesses “impermissibly interfered with [his] attorney-client relationship and thus his defense,” and that he has thereby established “more than a theoretical possibility that his rights to counsel and to present a defense were prejudiced by the court‘s decision to deny his transport motion.” But the court‘s actions ultimately did not infringe on his attorney-client relationship, and Alex fails to demonstrate how his presence would have caused the court to act differently, prevented any prejudice, or altered the proceedings’ outcome.
The exchange in question resulted from Alex‘s counsel‘s request to call Alex‘s children to testify. The attorney felt that the OCS permanency plans for the children might not be viable and that earlier testimony had called into question whether Alex‘s son wanted to terminate his relationship with his parents. The attorney requested the opportunity to call the children, explaining that she did not wish to revisit issues already litigated in the criminal trial and that she hoped to question them only about the permanency plans and their wishes concerning termination.85
The superior court was very reluctant to permit the children to testify after Alex had the opportunity to confront and cross-examine them in the criminal case. Presumably because of this reluctance, the court “questioned whether this request was coming directly from Alex,” and required the attorney to “consult with [Alex] and represent in court that the father wants the children to testify as to what subjects.” Alex‘s attorney in response “asked whether the court was suggesting that Alex, rather than his attorney, controlled the litigation strategy.”86 The court denied this suggestion, “but ultimately instructed Alex‘s attorney to consult with Alex for the purpose of representing to the court whether the decision to call the minors as witnesses was coming from Alex or his attorney.”
Alex correctly finds some fault with the superior court‘s initial statement that the attorney was required to consult with her client and then “represent that‘s what the father wants to do.” Quoting Downie v. Superior Court, Alex notes that the attorney-client privilege and Alaska Rule of Professional Conduct 1.6 “prohibit an attorney from disclosing the confidential communications between a lawyer and her client” and that “[t]his protection extends to ‘confidences between attorney and client imparted for the purpose of securing legal advice or representation.’ ”87 Nonetheless OCS correctly observes that no attorney-client communications ultimately were revealed—after a recess the court confirmed that Alex‘s attorney had conferred with her client on the matter but did not require elaboration when the attorney simply stated that “[w]e don‘t intend to call any witnesses at this time.”
More broadly, Alex argues that by even asking the question the court “put Alex and his attorney in an untenable position.” Because the court had “telegraphed its displeasure” about the attorney‘s desire to call the children to testify and then required the attorney to consult with her client, “Alex could reasonably expect the court to hold” it against him if he chose to support the attorney‘s request to call the children. Alex maintains that “when a client stands to bear the consequences of an attorney‘s strategic decisions, the attorney is faced with an unfair choice: proceed with the best defense strategy or acquiesce to the court. The [superior] court should not have placed Alex‘s attorney in the position of making this choice.”
But regardless of the propriety of the superior court‘s conduct, Alex fails to demonstrate how his presence in the courtroom would have substantively altered the events or prevented any negative consequences he believes resulted. Alex asserts that “[t]he court would have recognized the impropriety of directly confronting Alex, as opposed to his attorney, in court. The court may have questioned Alex‘s attorney regarding the request ..., but the court would not have taken the unusual step of instructing the lawyer to report her client‘s perspective....” We conclude that to the extent Alex has identified impermissible judicial interference, he has failed to demonstrate the value his in-person presence would have had in reducing that interference and thereby decreasing the likelihood that his parental rights would be erroneously terminated. His judicial interference allegations are therefore unmoored from the relevant inquiry under the second Mathews factor: ” ‘the probable value’ of [the requested procedure] in reducing the risk that parental rights might be erroneously terminated.”88
3. Third factor: The cost and administrative burden of transporting Alex weigh against him because they would have resulted from his last-minute request.
The primary competing governmental interest that OCS asserts under the third
Alex asserts, citing In re K.L.J., that the government‘s interest in avoiding the burdens of transport should be given less weight “given the fact that OCS shares an interest in obtaining just and accurate results in termination trials and in protecting the rights of indigent parents.”90 But In re K.L.J. dealt with whether a parent was entitled to appointed counsel,91 and we decline to extend that reasoning to the prisoner transport context. To assume the State has an interest in Alex‘s in-person presence at the termination trial to ensure an adequate and just result presupposes the outcome of the inquiry under the second Mathews factor, above. Alex asserts no new arguments here that affect our determination that his presence was not essential to a just disposition, and so we elect not to discount OCS‘s asserted government interest as he suggests. This factor weighs slightly against Alex.
4. Weighing the factors: The superior court did not violate Alex‘s right to due process by declining to order his transport.
The first Mathews factor, “the private interest that will be affected by the official action,”92 indisputably weighs in Alex‘s favor. The second Mathews factor, “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,”93 weighs against Alex. Alex fails to demonstrate how his in-person attendance could have altered the outcome of the proceedings or why his telephonic attendance increased the risk that the superior court would reach an erroneous result. Finally, the third Mathews factor, “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail,”94 weighs slightly against Alex. In balance we conclude that Alex was not deprived of due process by the superior court‘s refusal to order his transport to his parental rights termination trial.
V. CONCLUSION
We AFFIRM the superior court‘s decision terminating Alex‘s parental rights.
CENTRAL RECYCLING SERVICES, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Supreme Court No. S-16036
Supreme Court of Alaska.
February 10, 2017