Lead Opinion
OPINION
I. INTRODUCTION
In January 2011 the Department of Health and Social Services, Office of Children's Services (OCS) took emergency custody of three
On August 18, 2012, the. day the trial to terminate the mother's parental rights was to begin,
The grandmother moved for reconsideration and argued that her due process rights were violated at the time of the removal. She argued that OCS did not provide her with notice of the right she was entitled to as the children's Indian custodian, including notice of her right to intervene in the proceeding and of her right to be represented by counsel. The trial court rejected this argument, finding that although OCS breached its duty to provide the grandmother with notice required by the Indian Child Welfare Act (ICWA),
We affirm the trial court's decision and hold that any error OCS may have made regarding the notice provisions of ICWA was harmless.
II. FACTS AND PROCEEDINGS
Jessica and Aaron R. have three children, Ashley, Mark, and Lori, who are Indian children for purposes of ICWA.
On January 14, 2011, OCS held a team decision-making meeting (TDM).
Later that day the trial court held an emergency probable cause hearing. At the hearing, which was attended by Jessica and Aaron, but not Molly or Chuck, Aaron's attorney stated that Aaron was concerned about drinking occurring in Molly and Chuek's home. OCS informed the trial court that placement with Molly and Chuck had been decided at a TDM, and that another TDM, to review the placement while avoiding the need for a judicial hearing, had been scheduled for the following week. At the termination trial Malone testified that the second TDM was scheduled because Jessica and Aaron disagreed with OCS's decision to place the children with Molly and Chuck,
The second TDM was attended in person by Jessica and Aaron and their attorneys, and telephonically by the Fredericks. Molly and Chuck did not attend. Jessica and Aaron each expressed concerns about the children's placement with Molly and Chuck. Their concerns included suspicions about Chuck having been a perpetrator of sex abuse, safety issues involving power tools in the home, drinking in the home, and Jessica having blocked details of her childhood from her memory, suggesting that Jessica had suffered abuse by her parents. At a later hearing Malone testified about the second TDM. She stated that at the meeting she had not heard Jessica specifically ask OCS to remove the children from Molly and Chuck, but that Jessica "wanted them moved." Malone stated that "[ulnder no cireumstances was I under any impression that [Jessica] wanted her kids to remain with [Molly and Chuck]."
According to social worker Justin Heming er, who took over the case in spring 2011, another TDM was held in June 2011, shortly after he visited Molly and Chuck's home. The purpose of the TDM was to consider whether to change the children's placement. Heminger was concerned about the condition of the home, including strong odors of cigarette smoke and cat urine, power tools, heavy boxes stacked against the walls, clutter, overloaded dishes and ash trays, and auto parts in the yard. The team decided to continue the placement for two weeks to allow Molly and Chuck to alleviate the concerns. Following the TDM Molly and Chuck remedied
But OCS continued to have concerns about the placement, which the children's guardian ad litem (GAL) had opposed since the beginning. According to Heminger, OCS's ongoing concerns included cleanliness, discipline issues, Lori's continuing yeast infection, discontinuance of Lori's counseling, drinking, and neglect. Another TDM was held in August 2011, at which the team decided to place the children with their paternal relatives, the Fredericks, in North Carolina.
Molly and Chuck requested a review hearing to contest the change of placement. OCS, the GAL, and Aaron opposed the request while Jessica took no position. On September 1, 2011, the trial court held a proceeding to consider the request. On September 8, 2011, the trial court announced its decision that because Molly and Chuck were not parties to the child in need of aid (CINA) proceeding they were without standing to challenge OCS's placement decision. Molly and Chuck did not appeal the ruling.
A trial on OCS's petition to terminate Jessica's parental rights was scheduled to begin on August 13, 2012. That morning, Jessica's attorney filed a motion asking the trial court to allow Molly to join the case as a party, claiming that she was the children's Indian custodian from whose care and custody the children had been removed.
The trial court appointed counsel to represent Molly and scheduled an evidentiary hearing on the Indian custodian issue. The hearing was held on October 5 and 8, 2012. Molly, Chuck, Jessica, and Doug testified, as did social workers Malone and Heminger. The Native Village of Eagle participated. The bulk of the evidence presented, including testimony by Molly, Chuck, Jessica, and Doug, indicated that the children had been temporarily visiting their parents in early January 2011 rather than having been returned to them permanently.
Following the hearing the trial court denied Molly's request to intervene and Jessica's request to join Molly as a party. The court found that the children had been living with Molly and Chuck on January 12, 2011, when they were taken into OCS's custody. It concluded, based on this fact and on Jessica's temporary grant of physical care, custody, and control of the children to the grandparents, that Molly had been the children's Indian custodian at the time of their removal.
Molly moved for reconsideration, arguing in part that the trial court's decision was erroneous because, having found her to have been the children's Indian custodian at the time of removal, "the court failed to address or recognize that the state had utterly failed to comply with the mandatory requirements for written notice imposed by CINA Rule 7(F) and 25 CFR 23.11(a)," and had thus deprived Molly of her statutory right to counsel, her right to intervene in her grandchildren's CINA proceeding, and her right to due process.
The trial court denied Molly's motion. In doing so the court clarified its findings to specify that Molly's Indian eustodianship ended on January 18, 2011, when Jessica and Aaron notified OCS that they disagreed with the decision to place their children with Molly and Chuck, The court found that OCS breached its duty to provide notice to Molly of her right to intervene in the proceeding and to be represented by counsel, as required by ICWA, but it found that, because Molly's status as an Indian custodian was extinguished six days after OCS took custody, OCS's actions had not deprived Molly of any important rights and the breach had thus been harmless.
Molly appeals, arguing that OCS's failure to provide her with notice due to an Indian custodian at the time the children were removed from her custody deprived her of her right to due process, and that the parents' revocation of Molly's Indian custodianship was ineffective until Molly received notice of the revocation. Molly asks us to reverse the trial court's denial of her request to intervene in the proceeding, to order the children restored to her physical care and custody, and to vacate all orders issued by the trial court since OCS's assumption of the children into its custody in January 2011.
III. STANDARD OF REVIEW
We review a trial court's factual findings for clear error and its conclusions of law de novo.
IV. DISCUSSION
A. The Parents Ended Their Grant Of Temporary Custody To Molly, And Thus Molly's Indian Custodianship, In January 2011.
A parent whose child is in OCS's custody may, with the concurrence of OCS, revoke an Indian custodianship that was in place when OCS took custody of the child.
At the time of the termination trial Jessica wanted Molly to be her children's Indian custodian. But Jessica and Aaron's earlier action in informing OCS of their opposition to the children being placed in Molly's care acted to terminate Molly's Indian custodianship. Despite her wishes at the time of the termination trial, Jessica was without authority to reinstate that relationship.
The trial court found that Jessica and Aaron ended Molly's Indian custodianship on January 18, 2011, by stating at a TDM that they did not want the children placed with Molly and Chuck. On appeal, Molly argues that any such sentiment by the parents was ineffective to end Molly's Indian custodial relationship because the parents' intention was not communicated to Molly. But Molly misses a key point. Under section 1912(a) of ICWA, it is "the party seeking the foster care placement of ... an Indian child" who "shall notify the parent or Indian custodian and the Indian child's tribe" of the pendency of the proceeding and of the parent's, Indian custodian's, or tribe's right of intervention. Here, the party responsible for providing such notice was OCS. By telling OCS on January 18, 2011, that they did not want their children placed with Molly, Jessica and Aaron effectively informed OCS that any grant of physical care, custody, and control they may have earlier given Molly over their children no longer existed. Regardless of Molly's knowledge, or lack thereof, of this communication, OCS was the party charged with notifying the children's Indian eustodi-an, if any, of the pendency of the CINA proceeding. Jessica and Aaron's statements gave OCS actual knowledge that, as of January 18, 2011, Molly was not the children's Indian custodian. OCS thus had no duty, from that time forward, to provide Molly with notice under ICWA.
Onee an Indian custodian's status has been revoked, that person has no role in ongoing child protection proceedings. By way of illustration, in In re G.L.,
The trial court's factual finding that Jessica objected to the children's placement with Molly and Chuck on January 18, 2011, is supported by the record and thus not clearly erroneous. The trial court's conclusion from this finding that Jessica's desire to remove the children from Molly and Chuck acted to terminate Molly's Indian custodianship is not erroneous. And the court's determination that OCS's failure to provide notice of the rights of an Indian custodian to Molly was harmless given that Molly's Indian custodianship was terminated six days after OCS took custody is also not erroneous.
B. Molly's Other Arguments Are Without Merit.
Molly argues that Jessica created an Indian custodianship in her by executing powers of attorney for the children, and that because Jessica did not revoke the powers of attorney Molly's status as the children's custodian was never revoked. She argues that because she was not informed that the powers of attorney had been revoked OCS was required to treat her as the children's custodian, even though Jessica directly told OCS that she opposed Molly's custodianship. But, by informing OCS that she opposed Molly's exercise of custody over the children, Jessica revoked, at least as far as OCS's relationship with Molly was concerned, any indicia of custody that Molly had acquired through the powers of attorney. By their terms, the powers of attorney were "revocable by [Jes-sical at any time." Molly's argument thus has no merit.
Finally, Molly argues that because OCS violated its duty under section 1912 of ICWA
v. CONCLUSION
For the foregoing reasons the trial court's denial of Molly's request to intervene in the children's CINA proceeding is AFFIRMED.
. The children's father relinquished his parental rights.
. 25 U.S.C. §§ 1901-1963 (2006).
. We use pseudonyms to protect the privacy of the family.
. Again, the evidence differs as to whether their return was intended as a visit or as a continuation of an indefinite placement with the grandparents.
. Stevie's Place is a facility-based program that provides forensic interviews and medical exams in a child-friendly setting when there is reason to believe a child has been sexually abused. Resource Center ror Parents anp Cmitoren: Stevie's Prace, http://www.repcfairbanks.org/stevies_place. php (last visited Feb. 10, 2014).
. According to OCS social worker Natosha Malone a TDM provides "an arena where we can invite the family along with any supports to openly discuss the concerns that [OCS] has and to develop a plan for placement.... We document the strengths, the concerns, the ideas, and then hopefully bring the group to consensus by the end of the meeting." If the team is unable to reach consensus on placement, OCS's recommendation is implemented, but the participants are informed that they may contest the decision in court.
. The children would eventually be placed with the Fredericks in North Carolina in October 2011, where they remain.
. Malone testified that she felt that Jessica appeared more comfortable speaking openly outside her parents' presence. Malone testified that Jessica told the group that her childhood "must have been really bad if I've blocked it out," and that Malone found Jessica's statements to be "bone chilling."
. Attending this meeting were Jessica, Aaron, Chuck, representatives of Eagle and Tanana Chiefs Conference, and the GAL. Molly did not attend. According to Malone all of the participants supported the change in placement.
. See 25 U.S.C. § 1912(a).
. See 25 U.S.C. § 1912.
. 25 U.S.C. § 1903(6) defines "Indian custodian" to mean "any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child."
. The trial court was referring to the children's removal from Molly and Chuck's home on August 18, 2011.
. Molly argued that OCS erred by not providing her with notice of her rights as an Indian custodian under 25 C.FR. § 23.11(a) and Alaska Child in Need of Aid Rule 7(F). Under the regulation and rule when OCS petitions to adjudicate an Indian child as a child in need of aid it must notify the child's parents, Indian custodians, and tribe of their rights under ICWA. Those rights include the right to intervene in the proceeding, the right to be represented by counsel, and the right to obtain a continuance to prepare for the proceeding. Additionally, the notice must include a statement of potential legal consequences of the proceeding on the future custodial or parental rights of the parents or Indian custodians.
. Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 291 P.3d 957, 961 (Alaska 2013) (citing Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010).
. Id. at 961-62 (quoting Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
. Ted W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 333, 339 (Alaska 2009).
. AS 47.10.084(a) see also In re JJ., 454 N.W.2d 317, 327 (S.D.1990).
. 25 U.S.C. § 1903(6) specifies that an Indian custodian relationship is created when "the parent of such child" has temporarily transferred physical care, custody, and control of the child to an Indian person. (Emphasis added).
. Molly argues that OCS breached not only a duty to provide her with notice of her rights as the children's Indian custodian, but also a preliminary duty to inquire into her status as such. OCS responds that the facts available at the time gave it no reason to suspect that an Indian custodianship may have existed in this case, and thus it had no duty to inquire into Molly's status. We note the statement of the Michigan Supreme Court:
While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice ... the standard for triggering the notice requirement of 25 U.S.C.A.1912(a) must be a cautionary one....
In re Morris, 491 Mich. 81, 815 N.W.2d 62, 64-65 (2012). Here, the trial court correctly concluded that the short period of time between the children's removal and the parents' revocation of Molly's Indian custodian status rendered any error OCS may have made in not providing Molly with notice of her rights under ICWA harmless. The same analysis compels a conclusion that any error OCS may have made by not inquiring into Molly's status was also harmless. Thus, we need not and do not decide whether, given the facts available at the time, OCS had a duty to inquire into Molly's status, and, if so, whether it violated that duty.
. 177 Cal.App.4th 683, 99 Cal.Rptr.3d 356 (2009).
. Id. at 360.
. Id. at 365-66.
. Id. at 362, 366.
. Id. at 366.
. Id. at 366-67.
. Id. at 367 (quoting In re E.W., 170 Cal.App.4th 396, 88 Cal.Rptr.3d 338, 343 (2009)).
. 25 U.S.C. § 1912 (2006).
. 25 U.S.C. § 1914 (2006).
Dissenting Opinion
dissenting.
The Indian Child Welfare Act creates important procedural rights for Indian eustodi-ans.
Here, the superior court ultimately concluded that Molly was an Indian custodian for ICWA purposes at the time OCS filed its initial petition. In my view, Molly's Indian custodian status should have been apparent after minimal inquiry because (1) the children had been living with her for months, (2) Molly brought the children to the attention of OCS, and (3) OCS immediately returned the children to her care. The superior court should have appointed counsel to represent Molly at the very first hearing and provided notice to all parties of Molly's status as an Indian custodian.
However, this court's decision reasons that the superior court's failure to provide notice and counsel to Molly was harmless because Aaron and Jessica objected to Molly's custodianship at a meeting with OCS a few days later. I respectfully disagree with this conclusion.
If the court had properly recognized Molly's status and appointed counsel for her, then the course of the following proceedings may well have been much different. Aaron and Jessica may have realized the benefits of continuing Molly's status as an Indian eusto-dian. Molly may have chosen to participate in the team decision meetings where the parties discussed the children's placement. And with competent representation, Molly would have recognized her statutory right to judicial review of OCS's later decision to remove the children from her care.
In a criminal case, interference with a defendant's right to counsel is often considered to be a structural error that requires reversal because the consequences of such an error "are necessarily unquantifiable and indeterminate."
. See 25 U.S.C. § 1912 (2013).
. § 1912(a).
. § 1912(b).
. See AS 47.14.100(m); Irma E. v. State, Dep't of Health & Soc. Servs., 312 P.3d 850, 853-54 (Alaska 2013).
. Cook v. State, 312 P.3d 1072, 1088 (Alaska 2013) (Maassen, J., dissenting) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)); see also McKinnon v. State, 526 P.2d 18, 24 (Alaska 1974).