*1 relationships likely to result in harm children are sive injury to her of mental ate a risk superior the We affirm the children we AFFIRM the by the record. supported Marco, Dustin, Wes, finding grounds. court's findings on these court's superior Skyla children in need of aid under AS are Superior Affirm B. Because We 47.10.011(8)(B)(i). Finding The Children That Court's Aid Under AS In Need Of
Were 47.10.011(8)(B)(ii) Not Reach We Do Error. Of Other Claims
Sarah's superior additionally challenges the
Sarah children were that her determination
court's AS of aid under need children (11) 47.10.011(10) and Mar and that Wes (4) under subsections in need of aid co were NETWORK In the Matter of ALASKA (6). statutory only basis is one Because AND ON DOMESTIC VIOLENCE not need finding, we do for a CINA required ASSAULT. SEXUAL CINA superior court's other the to address No. S-13685. findings.12 however, note, puzzled that we are Supreme Court of Alaska. reference superior court's "Journal Dec. 2011. support the court's used to entries" of aid under were in need the children 47.10.011(10). the exhibit Our review of AS First, conclusion. to the same does not lead be Sarah's appear to handwritten entries husband, Wilson, from defending her
letters journal entries. charge rather than assault
Second, contain indica- the entries do not abuse; entry in- only
tion of substance merely going to a mentions
volving alcohol writer's detail the Instead the letters
bar. illness, violent mood struggle with mental adjusting to and ob-
swings, problems A further review
taining proper medication. that 46 additional the record indicates but were pages were offered
handwritten are concerned
ultimately withdrawn. We upon may have relied superior court admitted, that the
evidence that was misnumbered, indicating a
exhibits were record for re- maintaining proper
problem Nonetheless, testimony by Wilson
view. provided ample court and
credited finding that superior court's of aid under AS children were in need abuse). 47.10.011(10) (substance
v. CONCLUSION did not err superior
Because history of abu-
finding that Sarah's extensive Servs., State, Family 47.10.011; & Div. Youth Dep't Health & Soc. Health Jon S. v. 12. AS (Alaska 2003)). 212 P.3d Servs., P.3d Servs., Servs., & Soc. Children's Office of State, (Alaska 2009) Dep't (citing G.C. v.
OPINION CHRISTEN, Justice.
I.
INTRODUCTION
granted
Advocacy's
Office of Public
petition for
question
review on the limited
whether the Alaska Network on Domestic
(ANDVSA)
Violence and Sexual Assault
qualifies
"public agency"
as a
within the
meaning
of Flores
v. Flores
and AS
44.21.410(a)(4), such that the Office of Public
Advocacy
required
provide representa-
is
to
indigent party
tion to an
custody
in a child
dispute in which
party
represent-
the other
is
ed
ANDVSA. Because we maintain our
holding from Flores that it would be funda-
mentally unfair,
specific
in the
context of
custody disputes,
child
to allow
fund-
ing
party
one
party's
but not that
indigent opponent, we hold that ANDVSA
qualify
public agency
does
as a
purposes
for
44.21.410(a)(4).
of AS
II.
AND
FACTS
PROCEEDINGS
grew
This case
out of a child
dis
pute in
Superior
the Juneau
Court. The
represented by
mother was
the Alaska Net
work on Domestic Violence and Sexual As
(ANDVSA),
sault
a nonprofit corporation.
The father
indigent,
the superior
sug
determined,
sponte,
it was
44.21.410(a)(4)
obligated under AS
appoint
for
through
him
the Office of Public
(OPA).
After the court appointed
counsel,
intervene,
OPA moved to
withdraw
from representation,
repre
and convert
Trimmer,
Beth Lewis
Assistant Public Ad-
sentation
declaratory
issue to a
judgment
vocate,
Levitt,
Advocate,
and Rachel
Public
argued
action. OPA
appointment
its
Anchorage, for Petitioner.
improper
under Flores v. Flores1 and AS
44.21,410(a)(4) because ANDVSA is not a
Pate,
Christine
Supervising
McLeod
Attor-
"public ageney"
purposes
for
require
ney,
Legal Advocacy Project,
Sit-
ka, Respondent.
ment that OPA
legal representation
indigent
child
cases
Davis, Jr.,
James J.
Alaska
Services where the opposing party
is
Corporation, Anchorage,
for Amicus Curiae
public agency. OPA contended that ANDV-
Alaska
Corporation.
"public
because,
SA is not
agency"
among
things,
other
through
it is funded
discretion
CARPENETI,
Justice,
Before:
ary grants
Chief
rather
than state or federal bud
FABE, WINFREE, CHRISTEN,
get designations,
it is not a creature of the
STOWERS, Justices.
Legislature
or United States Con-
(Alaska 1979)
(requiring
"make [Alas- between applying the Flores of Of v. And A. Overview Flores Flores AS Corporation, which was Legal Services ka 44.21.410(a)(4). [ANDV- in Flores and "public agency" ]} the "they private non- given that are both proceeding v. Flores was a divorce Flores funded, subject to a profits, largely publicly divorcing couple's of the in which entangle- strings of and number only the contested Both child was issue.4 funding, public [and] by virtue of their ments parties indigent, were but the father obtained of state and federal subject to a number representation the of the Alaska Ser also observed that "the The court laws." (ALSC).5 vices The mother give explana- a lot of holding doesn't Agency asked the Public Defender be that Supreme why Court] [the tion as to represent her in the divorce appointed Cor- that [Alaska concluded but trial proceeding,6 the court ruled days agency." Two poration] public is a appointed would not be for the moth counsel later, entered an order in superior court the ageney funding. due to lack of The court (1) er OPA's motion to inter- granted which it: filing proceed of a motion to that the with mother purpose for the ordered case the vene (2) father; represented.7 un the de- as counsel for withdraw counsel; withdraw as nied OPA's motion to that, appeal, On we held interest at "[t]he (3) motion to convert the denied OPA's stake in this case is one of the most basic of declaratory judgment action. to a action liberties, right up all civil the to direct the original application with this OPA filed an bringing of one's child."8 Given the nature or Appellate under Rule 404.2 We right, of that we concluded that the "decided original application the be con dered that disadvantage" frequently decisive to a petition for review to be consid verted into a represented by parent not counsel is "consti granted Appellate Rule ered under par tutionally impermissible where the other question limited whether petition on the attorney public supplied has an a ent qualifies "public ageney" a with as 9 emphasized agency." We constitu meaning v. AS in the of Flores Flores and right to counsel in cases was tional 410(a)(d). 44.21 We also ordered that OPA indigent par ... "limited to cases where an represent the father in the un continue pro ty's opponent is custody dispute. In inter derlying child 10 by public agency." vided went on to filing original applica im between the of order, that, parents stipulated reached a tion and our hold because it had been custody agreement without the need for trial. represent ALSC could not both original response 5. Id. 2. ANDVSA filed a to OPA's procedural objec- application in which it made acknowledged "[the tions but 6. Id. public agency should be whether ANDVSA is recurring." keeps ... since the issue addressed 7. Id. State, See, Dep't eg., Health & Soc. 3. Jacob v. 2008) Servs., (Alaska (citing 177 P.3d 1184 8. Id. at 895. (Alaska n. 6 Ha, 591 P.2d 1284 Guin ("We 1979)) independent judgment apply our 9. Id. at 896. law, questions adopting of law most 'the rule reason, light precedent, poli- persuasive added). (emphasis Id. at 896 n. "). cy. P.2d at 894. 4. 598 Agency's the Public Defender divorcee and attorney ent has an supplied cases, ageney." not extend to such
responsibility did
pri
from
"counsel should be
emphasis
equal
This
on fairness and
bar,"
compensation provided
vate
under
advantage
right
indicates that the
to counsel
Rule 15.1.12
Alaska Administrative
where the
44.21.410(a)(d) was
Alaska Statute
enacted
arises,
part,
at least in
establishing
law
part
in 1984 as
government's
sup
otherwise one-sided
Advocacy.
pro
Office of Public
The statute
port
attorney supplied
for the
with an
public advocacy
part:
vides in
"The office of
public ageney.
Such
need not
provide legal representation
...
...
shall
*4
provided exclusively through
be
funding or
indigent parties
involving
in cases
child cus
provision
resources;
the
government
direct
tody
repre
in which the
undoubtedly
but fairness considerations
do
by
provided by
public agen
sented
counsel
party
arise where one
gov
benefits from the
cy."
language appears
This
to have been
funding
"public agency."
ernment's
of a
As
directly
drawn
from Flores13 Because nei
it,
puts
ANDVSA
this court was concerned in
party argues
legislative
ther
that the limited
Flores with "the fundamental
imbalance of
44.21.410(a)(4)
history
provides
of AS
an in
power
that occurs when one side has an
statute,
dependent
interpreting
basis for
the
attorney being paid
part by public
in
funding
entirely
holding
we base our
on Flores.
indigent
and the other side is
and is without
any counsel."
Flores,
B.
Is A Public
Under
Agency.
government
The notion that
"public agency" largely
1.
defined
Flores
among
sources are
the characteristics
re
by
organization's
an
reference to
quired
organization
for an
to be classified as
public funding sources.
is underscored
the rem
edy
provided
we
in
Flores: after
In
right
that there was a
to coun
ALSC and the Public
Agency
Defender
Flores,
that,
could
although
sel
we noted
provide representation
not
under the cireum-
custody proceedings
had
below
been initiated
individual,"
case,
"private
that individual
stances of the
we concluded that coun
bar,
sel should be
"was
provided by
attorney compensation
public agency"
provided by
alone
"[flairness
dictates
pursuant
State
petitioner
should be
Administrative Rule 15.1.17
entitled to a
advantage."
words,
similar
Later in
opinion,
In other
potential
solution to the
public
agency representation
we reiterated that a
unfairness of
in a
case
"who
is without the aid of counsel ...
will be
party
for one
pay
representation
was to
frequently
funds,
at a decided and
through public
decisive disad
other
thus
vantage"
disadvantage
equalizing
public
"[t}his
is constitu
financial
on
dispute.18
tionally impermissible
both sides of the
par
where the other
Flores,
11.
Id. at 894.
15.
12.
Id. at 897.
16.
Id. at 896.
Ct.,
Super.
13. See
Pub.
Sec
17.
Id. at 897.
Office
Dist.,
(Alaska App.
ond Jud.
779 P.2d
1989) ("OPA has
...
demonstrated
that the lan
placed
emphasis
18. Commentators have
similar
44.21.410(a)(4)]
guage of [AS
was derived from
e.g.,
on ALSC's
See,
sources.
Clare Pas
Flores.").
tore,
Right
Reality?,
A Civil
to Counsel: Closer to
L.Rev, 1065,
(2009) (de
42 Lov. L.A.
1070-71
prior
scribing
"holding
This was in contrast
indigent
cases-cited
Flores as
that an
in a
custody-related
proceedings
Flores-in which
dispute is entitled to counsel when fac
prosecuted by
ing
opponent
the State were found to
publicly
lawyer")
entitle an
an
with a
funded
indigent
added).
court-appointed
(emphasis
defendant
counsel.
Our own characterization of
See,
Wilcox,
(9th
e.g.,
noted,
unpublished
Cleaver v.
In its
have defined
determined that ALSC was
jurisdictions
but nonetheless
in other
how courts
(i.e., "during
pre-1980
agency.
agency,"
public
both
"public
ex-
post-1980. OPA
period") and
the Flores
the characteris
suggests
thus
give
history is "set forth
this
plains that
Connor-namely,
by Justice
tics identified
range
sources
a broad
this Court
being
private non-profit corporation with
not ANDVSA
whether or
which to review
agen
government
a formal
no connection to
agency' definition." We
any 'public
meets
organization from
cy-do
preclude
approach overbroad.
find this
agency.
designation
public
as a
Several
meets
not whether ANDVSA
before us is
cited
"public agency" definitions
definition,
ANDV-
but whether
public agency
organization
be a
require that an
and the
agency under Flores
is a
SA
government-created agency in or
agency or
"public agen-
Definitions of
related statute.
"public agency." To now
qualify
der to
as a
jurisdictions
cy"
in other contexts
used
would,
adopt
those definitions
as ANDVSA
they repre-
only to the extent that
are useful
effectively
approach
argues,
overrule the
we
background that
the Flores
sent
take that
in Flores We decline to
took
when it chose to use
may have had in mind
*5
step.20
But,
given that
the Flores
the term.
jurisdictions or
any other
did not cite to
that the use of the term
We conclude
definitions,
of an inten-
there is no indication
agency" in Flores must be under
"public
"pub-
of
prior interpretations
tion to draw on
referring primarily to the nature of
stood as
the court
unlikely
and it is
that
agency";
lie
sources,
organization's funding
and not to
an
public agencies that
for
considered criteria
government
organization's
status as a
an
came after
only appeared in cases
that
agency.
Flores.
Moreover,
ju
from other
where definitions
funding
2. Based on its
sources
with the
are in direct conflict
risdictions
ALSC,
similarity
should
ANDVSA
public agen
a
holding that ALSC was
Flores
public agency.
a
be considered
clearly irrelevant
cy,
definitions are
those
1979,
approxi
ALSC received
As of
reasonable to
question
appeal.
on
It is
mately
percent
funding
of its
from the
78
assume,
minimum,
the Flores court
at a
(LSC),
Legal Services
national
of ALSC
aware of the characteristics
by Congress
as a
which was created
by
Justice Connor
specifically identified
corporation to distribute
federal
nonprofit
dissent,
that "the
partial
where he noted
his
organiz
grantee legal assistance
funds to local
pri
Corporation is a
Legal Services
Legal Advocacy Pro
ations.21 ANDVSA's
agency
an
of the
corporation
vate
and not
19
(the
government."
organiza
The court
of
ject
legal services arm the
state or federal
tion) currently
percent
99
of its
receives over
aspects of
presumably
considered
these
'public agency'
[ALSC],
entity."
and ...
the case law
essentially
government-funded
ALSC was a
a
in existence at the time of
and definitions
Hamilton,
Mem.
& J. No.
Hamilton
Op.
not,
(Alaska,
*2
March
do
without more informa-
WL
at
Flores decision
1994
1994)
tion,
(contrasting
with those
[of
the facts of Flores
The review
that conclusion.
Hamilton,
requesting
supports
court-
in which the
further
definitions]
of
case law and
government
allege any
labeling
did not
raised
Justice Connor about
concerns
representa-
opposing party's
in the
'public agency'...."
involvement
To the extent that
ALSC a
tion).
arguing
that ALSC was a
OPA is
part
agency (arguably
of the
as much
right
to coun-
J.,
decision as the
Flores,
(Connor,
n.
P.2d at 900
19.
sel)
for at least
concurring
part).
incorrect, OPA seems
to call
dissenting
part,
overruling
partial
of Flores.
proposing to over-
OPA claims that it is not
percent
funding comprised
federal
21. Overall
pro-
premise
Flores "that a due
rule the core
funding
approximately
of ALSC's total 1979
indigent parent
right
[ex-
an
to counsel for
cess
custody proceeding."
But it also
came
An additional
three
ists] in a child
$1,763,286.
percent
percent
from tribal
and one
from state sources
did not
"the Flores Court
contends that
sources.
analysis
the 1978-
for its conclusion
Department
funding
"grant"
of Justice's
[Slometimes a
is issued to ALSC
(OVW),
Against
budgetary
in lieu of a
Office on Violence
Women
allocation and some-
AmeriCorps grant,
federal
and the State.22
budgetary
times this is done because of
argues
funding
political
[Clontrary
OPA
that ANDVSA's
struc
concerns....
and/or
intimation,
application
OPA's
for funds
distinguishable
that of
ture is
ALSC
competitive
from LSC is a
one and other
LSC,
federally-created
agency,
because
nonprofit
[compete]
law firms could
(and
provided
provide)
continues to
direct
against ALSC ...
for those funds.
ALSC,
funding to
while ANDVSA receives
Similarly,
description
funding
its state and federal
OPA's
of LSC as
through discretionary grants rather
than as
"parent" corporation
ALSC's
is called into
addition,
budget
items.
In
OPA
distin
the affidavit of ALSC's executive
guishes
sources,
Andy
organizations'
Harrington,
director
who stated that
regulations
review of
noting
although
"[a]
reflects that
LSC-which
it de-
LSC does not
pro-
refer
to the individual
'parent' corpo
seribes as "ALSC's somewhat
grams
offices,
as LSC entities or LSC branch
appointed by
ration"-has
a board
the Presi
nor does it refer
to itself as the
Senate,
dent and confirmed
programs....
individual
The most common
equivalent "parent" organization.
has no
regulations
term the
use to refer
to the
doWe
not find these distinctions to be
programs
'recipients'...."
individual
meaningful,
provides
explanation
no
LSC-ALSC relationship does not seem to
why funding
for
govern-
received from the
beyond
extend far
funding; Harrington's
as
through discretionary grants
ment
is less
clear,
places
affidavit makes
LSC
restrictions
significant
purposes
designating
used,
on how its
can be
but it does
*6
funding
than
received legal
programs,
create individual
services
through the normal
budget
state or federal
directors,
programs'
hire or fire those
process.
importantly,
More
it is not clear
appoint
Indeed,
board members.
ANDVSA
that ALSC
guar-
receives or ever did receive
compelling parallel
draws a
between ALSC's
budget
funding
anteed
grants:
relationship
rather
than
with LSC and its own relation-
OVW,
though
ship
agency
the record does
with the
a
not include detailed
federal
that
budget
supplies
funding.
most of
information about the status of
ANDVSA's
Like
ALSC
LSC,
1978-79,
requires
comply
in
OVW
accounting
its 2009
ANDVSA
records label
regulations
majority
imposes
federal
funding
other
its
from LSC as a
special conditions-including
Grant,"
regular prog-
"Basic Field
designate
other
reports
ress
that are made available
government
as,
to the
funding
example, "Family
for
public-for ANDVSA
funding
to maintain its
Caregiver Grants" and "Domestic Violence
eligibility.
Grants"; and
accounting
ALSC's 1978-79
statements
include a
category
broad
conclude
grounds
pro
We
OPA
"grants and contracts" from LSC and a num-
poses
distinguishing
for
between ALSC's and
ber of other
implies
sources. OPA
that these
funding
ANDVSA's
structures and sources
Indeed,
non-discretionary
contributions are
persuasive.23
are not
or other-
purely
based
wise
grants
different
fund
government
on the
funding,
extent of
ANDV-
ANDVSA. But
explains
as ALSC
in
ami-
its
might
SA
be considered to have more in
brief;
cus
common with the 1978-79 ALSC than the
appear
22. The record does not
to include infor-
United States
case,
Court
United States
Supreme
regarding
mation
Orleans,
807,
1971,
breakdown of ANDVSA's
v.
425 U.S.
96 S.Ct.
budget.
total
(1976).
L.Ed.2d 390
But like several of the cases
cites,
context-specific
Orleans turned on a
argues, alternatively,
23. OPA
that even if the
statutory
agency'-the
definition of "federal
grants
by
received
ANDVSA were considered
phrase "public agency"
actually
was not
used in
government funding
public agency purposes,
for
the statute or the decision-within
the Federal
money
entity
"the amount of
an
receives from
Act, very
Tort Claims
a
different context than the
government
solely
is not
determinative of wheth-
right to counsel that is at issue here.
Id. at
entity
equivalent
er the
is the functional
of a
841] the ma- ALSC received appointees on ALSC's board is not ALSC does. current ation State; the fact that percent-from mandated ANDV- funding-about jority of its 2009; adopt percent presumably choose to a simi compared to SA could LSC in Advocacy Project by amending bylaws sug current- composition lar its ANDVSA's its percent defining not a characteristic ly gests over 99 that this is receives sources. government place organization federal and state sufficient to it a of the for a threshold category not intend to establish We do different from ALSC. funding an or- government proportion public qualify as ganization must receive CONCLUSION however, it is funded agency; given superior AFFIRM the court's sources, entirely by government almost public ageney under that ANDVSA is agency based qualifies as 44.21.410(a)(4). purposes of AS that this emphasize funding. its We also on does only to ANDVSA and
holding extends Justice, STOWERS, dissenting. any other question whether not reach the purposes public agency for organization is a STOWERS, Justice, dissenting. 44.21.410(a)(4). of AS dissenting agree I with Justice Connor's (1) meaningfully opinion is not in Flores v. Flores1: the Alaska 3. ANDVSA distinguishable from ALSC non is grounds. agency other profit corporation
on and not an of the (2) therefore, government; or federal state has been inception in ALSC From its being "public agency" in the sense of directors; of fifteen governed a board agency did not attorneys the Alaska selected nine are counsel; (8) there is Mr. Flores with no non-attorneys and six are Bar Association federal, precedent, authoritative state or organizations specified in by other nominated process firmly support an extension of due bylaws. power has no over ALSC's LSC rights indigent parent proceeding pro to an membership of its staffing or board director case where the other se provides it grantees, although the *7 provided by the Alaska has counsel In addition to subject on use. to restrictions (ALSC). course, Of Services above, discussed distinctions precedent respect with Flores is differs from argues that ANDVSA represented one cases where of directors includes ALSC because its board ALSC, I to follow it. and am bound Association, appointees from the Alaska Bar Alaska," instrumentality State of "an given complete analysis lack of But all consists of whereas ANDVSA's board why and the Flores court explanation how corporation and is members of the ANDVSA "public agency," determined that ALSC is a government "direction subject to similar my court's use of sense that the Flores or control." agency" justification phrase "public cloth, whole I organizational unconsidered and derived from responds that the join opinion in the ANDVSA by OPA are minor and un am loath differences cited merely expand Flores to include ANDVSA to whether ANDVSA is related organiza- empha shares certain agency. agree. Although OPA because ANDVSA similarities with direction" tional and source "control and sizes board, compels composi ALSC. I don't think stare decisis us ALSC's board exercised on conclusory opinion resting on to extend one ALSC and ANDVSA is deter tion for both premises case involv- self-imposed questionable to another organization's each mined private, non-profit corpora- "gov ing a different bylaws.24 The somewhat attenuated process tion. I don't see that the due clause presence in the form of Bar Associ ernment" (Alaska Corporation Bylaws P.2d and 900 n. 8 1. 598 897-900 Alaska See IV, Justice, 1979) (Connor, http://www.alsc-law.org/ dissenting part). in art. available at public-corp/bylaws/Bylaws_May._3..2008.pdf. requires spectfully today's opinion Constitution us to do dissent from contrary. decides to the policy matter of Flores should be so. If as a facts, legisla- beyond its that is the extended prerogative.
ture's in arguments
One of the Flores was that Agency
the Public Defender should be re
quired represent indigent parent. such an
(The yet Office of Public had not decided.)
been created at the time Flores was rejected argument, sug The court but J., Appellant, PHILIP gested probably provide that ALSC could legal representation ap if both propriate regulations developed were such Alaska, STATE DEPARTMENT OF attorneys employed by that "two ALSC could SERVICES, HEALTH & SOCIAL OF- conflicting positions represent litigation, in SERVICES, FICE OF CHILDREN'S having loyalty each undivided to his client Appellee. fully independent able to exercise that professional judgment required by which is No. S-14193. Responsibility." the Code of Professional "encouraged The court such an effort."3 Supreme Court of Alaska. regulations place, But without such Dec. 2011. rejected having argument that the Public Agency required Defender
counsel, the court determined in Flores that indigent parent
counsel for the should be bar.4 agree
I appears with the court it
likely legislature that the considered the de
cision Flores when it enacted AS
44.21410(a)(4) part in 1984 as of the law
establishing Advocacy. the Office of Public 44.21.410(a)(4) provides
Alaska Statute
part public advocacy office of "[the shall
... provide legal representation ... to indi
gent parties in involving cases child represented which the is provided by public agency." counsel agree
I therefore with the Office of Public public agen- that ANDVSA is not a
cy appointment and that improper its 44.21.410(a)(4d).
under Flores and AS I re- agency." 2. Id. at 897. noteworthy Id. n. 12. at 896 It is only this reference to a is Id. at 897 n. 14. second instance where that term is used in majority's opinion. The first instance is the con- 4 4. Id. at 897. clusory unsupported finding: "Although below, proceeding individual initiated the language cautionary 5 . This mirrors the court's provided by he was emphasize counsel note in Flores: "We that our opinion involving public agency." in this is limited to cases child Id. at 895. The court made this indigent party's opponent analysis where an explanation. with no provided by