*1 however, what we cannot, overemphasize separa geographic I: "Where in Hunter
said im in-person visitation frequent
tion makes crucial."2 visitation is telephonic possible, visitation telephonic that the feels If Hunter court, by the occurring as ordered not to revisit superior court may ask the
issue. CONCLUSION
v. order superior court's AFFIRM We modify custody. motion to
denying Hunter's Justice,
CHRISTEN, participating. E., Appellant,
PAULA
v. Alaska, OF DEPARTMENT
STATE SERVICES, OF & HEALTH SOCIAL SERVICES, FICE OF CHILDREN'S
Appellee.
No. S-14247. of Alaska.
Supreme Court
8,May (Alaska 2005)). 117, 121 (citing Alcina, v. Id. at 198 Silvan
dren who were parents' removed from their care due to substance abuse and domestic violence. The children placed their grandmother, maternal who claims that (OCS) the Office of per- Children's Services manently removed the children and them with a non-Native family foster while away she was caring Montana for her elderly responds mother. OCS grandmother requested that the children be *4 removed from her care. There were also reports substantiated relating of harm to the grandmother's care, and the tribe expressed dissatisfaction with the children's grandmother. with their grand- After the Alaska, mother returned from Montana to stayed the children with the family foster grandmother while the provided afternoon care. But grandmoth- OCS terminated the er's visitation when the tribe and the foster family complained that the children were be- having poorly after the visits. After remov- ing the grandmother's children from the care, provide OCS did not grandmother with notice of scheduled permanency placement hearings for the children. year Over returning Montana, after grandmother formally requested that the placed children be with her. OCS denied request grandmother and appealed, arguing that the children should be with her and that the failure her Melanie Baca Osborne and Kirsten M. with hearings notice of during conducted LLP, Kinegalk-Friday, Stoel Rives Anchor- preceding year her violated due age, Appellant. for rights. standing After the master conducted Webb, Megan R. Attorney Assistant Gen- a full hearing grandmother's eral, Burns, Anchorage, and John J. Attor- ment request, court denied the General, ney Juneau, Appellee. Dianne request, finding good cause to deviate from Olsen, Olsen, Law Office of Dianne Anchor- (ICWA) the Indian Child Welfare Act's age, for Guardian ad Litem. placement preferences. The court further grandmother concluded that the was neither CARPENETI, Justice, Before: Chief entitled to notice of prej- earlier nor FABE, WINFREE, STOWERS, and udiced a lack of notice. superi- After the Justices. or court proceedings, the children were adopted by family they foster with whom OPINION had grandmother bonded. The appeals, ar- guing that prop- because she did not receive PER CURIAM. er notice of the proceedings earlier related to I. INTRODUCTION the children and because there was not appeal This arises from a Child In Need of cause to deviate from preferences, the ICWA (CINA) Aid case involving four adoption Indian chil- should be set aside and time, that, she testified grand- worker reunify her with begin should culturally very oriented. thought Paula was in her is correct grandmother children. concerns re- while she had proper receive She stated did not she argument be, could Paula's house proceed- how crowded permanency garding earlier notice of the addressed. had been any prejudice to those concerns ings. But because subsequent by the cured grandmother had mother January 2008 the children's By and was participated hearing in which her first completed and improvements made cross-examine and evidence able treatment, the children and so phase did witnesses, superior court because the visit, This for a trial home to her returned finding good cause plain error not commit unsuccessful, July the chil- placement prefer- ICWA's to deviate again placed with were removed dren ruling. ences, superior court's we affirm Following a Paula. changed from reunification then plan was PROCEEDINGS FACTS AND II. poten- Paula as OCS identified adoption. 2008 the In December parent. adoptive tial Removal Initial A. parental relinquished his father children's Eddie four children: involves This case July children's mother 2009 the rights, and (born 1996), August (born Tawny March *5 rights. relinquished her (born 2001), January David 1997), and Callie 2005).1 (born moth February The children's With Paula Placement B. Children's Maddie, er, enrolled member is an July Summer From Until youn three Cheyenne tribe. The Northern study for a home In December 2008 Steve, father, is an enrolled ger children's completed was adoption by Paula (Gulkana Village tribe Gulkana member of the mostly study apparently were results of ).2 initially into taken children were The caseworker, Wikle, the OCS positive.4 Lori expo May due to their custody in OCS concern was pressing the most testified that domestic violence and Steve's sure to Maddie long- to the was committed whether abuse. and substance adoption the children. term of custody the chil of OCS obtained After Paula, placed with the children were While dren, with younger placed three were monthly She home visits. conducted Wikle and Eddie with grandmother paternal their progressive visit that in each testified place great-grandfather. The maternal his appeared and to be more exhausted looked year: In changed slightly over the ments many with commitments directions pulled Pau placed with 2006 Callie was September and Val family members. Wikle to various la, in Janu grandmother, and her maternal worker, Nelson, testi Gulkana's ICWA mother, erie with his ary David was March 2009 around fied to a conversation treat undergoing substance abuse who was themselves, Paula, and a few others between care license obtained a foster ment. Paula different, more suitable where a children July 2007 all four and June testified that Both ICWA was discussed.5 care.3 Gulkana's former were in her study through- from the home protect privacy la references facts pseudonyms to 1. We use involved. those below, we As discussed more out her brief. fully only also devel- facts that were consider those enrolled in the Northern 2. All the children are properly during testimony oped or in other eligi- Cheyenne or are tribe and all are enrolled admitted documents. Village tribe. enrollment in the Gulkana ble for meeting in this there was a Paula admits that dispute when all four as to 3. There is some was denies that this conversation time frame but While it is un- were in Paula's care. children requested a exactly in which she the children moved a formal discussion clear when all Paula, perma- placements OCS's placement. initial to The children's their different nency report superior indicates that acceptable to the in- appeared to all to be with Paula July with 2007 all the children February at least March 2009. volved until around Paula. that the children court noted placement. doing well" in their current "are study, although at the referenced 4. The home Pau- was never admitted into evidence. just tana, agreed grandma" she "wanted to be ill required and her assistance. Paula told OCS that she go again. needed to days Montana three before she left.7 Based time, began At about the same OCS receiv- emergency on the need the children were ing reports regard- both informal and formal Dubovs, placed with the the non-Native fos well-being. the children's OCS received family ter with they stayed whom had reports three of harm from Gulkana. Two various other supported short visits. Paula reports were formal letters from the tribal time, at that but later asserted report council and one was an informal thought that she tempo a concerned tribal reports member. rary, noting just going she "was go expressed concerns about Paula's extensive out and take care of some business and come Anchorage, travel the cleanliness of her back, and the children would house, be back with supervision her lack of control and children, [her]." OCS asserted that Paula "did practice driving left, want the children back when she youngest child in the car without a car was]) working [OCS under premise." seat. Accordingly, proceeded to seek ICWA- supposed The children were to be attend- compliant long-term placement for the chil sessions, ing therapy but Paula was often dren, treating the Dubovs as a temporary get unable to appoint- the children to the placement.9 Despite ments. OCS's involvement in set- ting up appointments transportation, C. Paula's Return To Alaska Tawny only attended two sessions and Eddie only Upon her Tawny and Callie return to August one. told her Alaska in thera- pist that Paula had hit Paula learned that enough her hard OCS was not planning knock her down and to leave return the bruises. Based children to In September her. *6 information, therapist on this filed a re- the State did not renew Paula's foster port of harm. care license because two reports of the against harm made her had been substantiat- The children's school also sent notices ed. Wikle testified that though even Paula regarding OCS the behavior and condition of longer was no considered a proper place- the children. specifically The school was ment, willing try she was to work with poor grades concerned with Eddie's and bul Paula to address the concerns that led to the lying Tawny's behavior and proper lack of being children with her. It medication for her skin condition. Addition unclear from the record whether the denial ally, the school was concerned that the chil of the foster care license or other concerns dren did not have food in their lunches.6 precipitated OCS's refusal to return the chil- investigated complaints. Wikle these dren to Paula. But it is clear that the chil- reported children that Paula corporal used punishment. care, dren were never returned Wikle told Paula that to Paula's foster parents and reapplied were not Paula never corporal allowed to use for the foster care punishment, punishments but the license. continued. May Sometime in 2009 Paula became There dispute is some parties between the mother,
aware that her who lived in Mon- as to when actually requested place- pack 6. Paula testified that she did not the chil- children "while is out [Paula] of state." Another they participated dren's lunches because in a email from the Dubovs stated that both the chil- program. subsidized lunch impres- dren and their mother were under the sion that the children would return to Paula's notice; suggests upon gave care 7. Paula her return. that she OCS more Paula relies on some of brief, she relies on an these facts in her unadmitted email between the but the facts were not through ICWA worker and Wikle established indicated she re- admitted evidence or testi- children, quested mony. passports for the but Paula's testimony supports own OCS's assertion that provided days' leaving three notice before meetings 9. OCS conducted several with Gulkana prolonged period the state for a of time. village, members, sent a worker to another and requested Cheyenne information from the tribe searching But there is an unadmitted email sent OCS for alternative relative or ICWA-com- suggests pliant placements. that care would be found for the allegations, made Maddie after Paula did not la and while she testified ment. Paula unsubstantiated, known to it was well out to be request, which turned a formal make returned the children wanted she OCS that inappropriately toward acting Dubov Mr. that she explained also She to her care.10 children were Tawny and that the Callie and placed with children be not ask that did was concerned generally neglected. OCS license her foster attempt to renew writing into Callie "coerc[ed]" that Paula had with OCS trying to work she was because inappropriate behavior alleging a letter the children: return of eventual toward the Mr. Dubov. your care reapply for foster Q. you Did tribe, Cheyenne, at- the Northern ... ? license case; in the it was intervene tempted to with OCS had to work figured I A.... I party sta- status but denied given participant going and what find out what and in Montana June tus. Until she left for get children even process was to hearings related to attend all Paula was able back. return, she But after her to the children. permaneney and did not receive notice placement of ask for Q.... didn't [You] formally re- hearings until she you because at that time children Sep- in denied quested and was co- everybody and be work with trying to tember 2010. operative? be the first Well, yeah,. Wouldn't A. ICWA-Compliant Attempts D. To Find something? regain step trying Placement request for formally made a it was denied. September initially intend the Dubovs ment OCS did not re- was Paula's first that this OCS asserted option. OCS con- permanent placement abe although had been quest placement, meetings with Gulkana mem- ducted several Paula, calling up to set sched- working with bers, village, to another sent a worker leaving cards at her door. uled visits Northern requested information from the Cheyenne searching for relatives or tribe the children involved with Paula was still early placements. ICWA-compliant from Montana. For sev- returned other after she weeks, daycare and after- provided relatives in Montana eral 2010 OCS learned that *7 But OCS sus- children, the children. care for school taking in but were interested due to concerns about pended initiated, these visits placement request was although a they returned to when children's behavior that it not in the children's OCS found was OCS, need- According to Dubovs. to move to Montana. best interests engage and in concerns ed to work on OCS's her in order to continue visits supervised The Placement With E. The Children's su- relationship with the children. Visitation Dubovs sought two Gulkana tribal pervisors were first with Before the children were meetings, although and there were council Dubovs, they significant exhibited behav- visits, supervise the volunteers two problems. Throughout their time ioral testified that never occurred. Wikle visits Dubovs, improved though, the children nu- stopped and Paula's house she called im- dramatically. performance Their school hopes Paula in to connect with merous times sociable, they they become more proved, relationship with the chil- encouraging a "incredibly Although the dren, doing these contacts well." but Paula denies develop Native, point they did OCS care to At no are not took occurred. Dubovs custody of help Paula obtain plan formal in participated children cul- ensure that the children. activities, pot- group, a dance tural such as latches, social events. and other Gulkana temporary filed for February 2010 OCS In They regular facilitated contact between also preventing orders long-term protective family, in- extended the children and their going near the children. OCS Paula from great-grandfather. cluding paternal their for Pan- a no-contact order implemented also children back. knew Paula wanted the that OCS It clear from the record developed Request The children and the Dubovs G. Paula's For Placement deep family psychiatric A bond. nurse testi- September In formally 2010 Paula request- changing placement highly fied that would be placement her, ed of the children with but traumatic and harmful to the children. In OCS denied that request. sought January adopted 2011 the Dubovs all four court review of OCS's denial of her children. request. ment Hearings request on Paula's were held in November and December 2010 Hearings Regarding F. Various The Magistrate Wilkinson, before as the acting Children's CINA Cases standing hearings, master. At the Paula ar- the children were removed from gued that
After OCS failed to proper no- care, hearings several occurred for prior tice of hearings and that she was enti- which Paula did not receive notice. The placement. tled to first, July was the termination of The hearing evidence at the incorporated parental rights proceeding at which the chil testimony September from the voluntarily dren's relinquished mother in which participated. Paula had not parental rights.11 August perma In 2009 a this, Despite the master found that Paula nency hearing held was at which Gulkana's prejudiced by was not pro- OCS's failure to ICWA informed the master that the worker permanency vide notice of the hearings and okay "grandmother with the plan [was] now." alternatively any determined harm had superior adopted The court the master's find been cured the new review with the was rea Dubovs hearing at which Paula per- was sonable and in the children's best interests participate. mitted to standing The master parties and that all entitled to notice had reasoned that Paula was not entitled to no- been proceeding. served with notice of the tice of in 2009 and 2010 under But Paula was not served with notice of this 47.10.088() AS eligible because she was not hearing. for a foster care license. The master also determined that Paula
In December 2009 a was not entitled to hearing status held, notice of OCS's removal of the but Paula did children be- not receive notice of this cause Paula had initiated the hearing. July removal herself 2010 a hearing There, when she left for Finally, Montana. was held. superior court deter- master found that there was cause to hearing mined that a necessary to con- deviate from ICWA-compliant placement and Montana, sider with relatives that it was in the children's best interests to who had placement by been denied OCS. remain with the Dubovs. given Paula was not proceed- notice of this ing. objections Paula filed to the master's find- ings. adopted The the mas- Sep- was held in *8 findings, noting ter's that Paula had not ob- tember 2010 to review OCS's deci- jected to the finding master's factual that regarding sion relatives in Montana. Paula there was clear convincing evidence of given was not and notice and did not attend this good cause to deviate from the ICWA hearing. At this signifi- there was a preferences. ment testimony cant amount presented regard- of ing placement history Paula with and the appeals, Paula now arguing that supe- challenges she in trying faced to raise the rior court erred when it found that OCS's children. The master found that there was failure regarding notice the CINA good cause to deviate from prefer- ICWA proceedings prejudice did not her and that ences and that with the Dubovs superior court abused its discretion when proper because the children were bond- it found cause to deviate from an expressed ed with and preference had ICWA-compliant placement. argues She stay with the Dubovs. that the adoption should be set aside and the 11. relinquishment, She later tried to revoke adoptive parent, to be the but was too late. apparently learning go- after that Paula was not
480 concerns do not erated OCS she can her so that children reliability. about them.
adopt Paula are correct the GAL OCS and REVIEW OF III. STANDARD upon exhibits improperly relied has of was a violation superior there court. in the Whether not admitted were law that we question of that were not heavily on exhibits due relies Paula law novo, "the rule of adopting evidence, the home particularly review de into admitted light precedent, of in not persuasive have that is most OCS notes. We study and various we a CINA case reason, policy."12 Appellate Rule although under ed findings factual court's superior 210(a)(1), 'docu review the exhibits "become unadmitted only if we will reverse We for clear error.13 are therefore file" and in the court ments' record, and firm conviction parties "a definite left with because are from the not stricken 14 made." When has been mistake that a respond opportunity [them] have "no fact, law and questions of reviewing [them]," mixed are to exhibits challenge unadmitted clearly has not as weight.17 Paula questions under afforded no be we review factual using legal questions erroneously standard erroneous the master a claim that serted review judgment.15 We independent evidence. our these documents excluded good cause to devi finding of weight court's these give no Accordingly, we using preferences ICWA claims ate from Paula also assertions. unadmitted standard.16 of discretion an abuse exactly what the trial that "it is unclear decision, anything making so in its relied on IV. DISCUSSION may have considered should trial court added.) A clos (Emphasis be reviewable." Evidentiary Issues A. however, look, Paula is actual reveals that er in evidentiary issues two There are interpre making about the master's ly claims First, guardian ad this case. in her and is incorrect tation of evidence (GAL) brief relies that Paula's contend litem evidence master relied on allegation that the in the not admitted that was upon evidence hearing.18 during the presented that was not cannot be relied therefore superior court and Thus, only the evidence we will consider argues that it is upon this court. hearing. at the was admitted court relied on exactly what the trial "unclear master's argues that Paula next and that therefore the making its decision" in September evidence from reliance on be reviewable. trial file should entire pro- to due hearing violated her gen 2010 documents argues that unadmitted also n. 4 343, P.2d 348 v. 749 Servs., & Youth 17. Moffitt, Div. State, 12. D.M. v. Family Moffitt 1988). (Alaska (internal (Alaska 2000) P.2d 205, quota- Ha, omitted) (quoting Guin v. tion marks 1979)). (Alaska n. 6 argues found example, the master 18. For would not be returned knew the children that she State, Dep't Maisy Health & Soc. W. v. got Montana even back from to her once she Servs., Servs., 175 P.3d Children's Office of contrary, though there was evidence to the 2008) (citing Brynna B. v. argues Dubovs the master found that the she also Dep't & Soc. Health adoption considering fall of 2009 were not (Alaska 2004)). they doing so. despite "evidence" omitted) However, (internal (quot- relied those cases the master marks both Id. *9 quotation Servs., State, 7 Dep't & Soc. Health A.B. v. presented. There was upon was of evidence that (Alaska 2000)). 946, P.3d 950 testimony initiated the removal that Paula herself evidence care, from her of the children Servs., & Soc. State, Health Ben M. v. Dep't of sup- suggested that the Dubovs in court admitted 1013, 1018 204 P.3d Children's Office of Although was ported placement. there Native (Alaska 2009) (citing 296, 945 P.2d A.M. v. seeking adoption the Dubovs evidence that 1997)). (Alaska n. 10 August option in it was an at least that it hearing. at the was not admitted 2001) 769, 772 P.C.S., 16. C.L. v. N.P.S., (citing Adoption (Alaska 1994)). was not at that cess because she 1. The transfer of hearing opportuni- and thus did not have the argues that as a parent foster ty to cross-examine witnesses. Because this she was entitled to notice of the children's argument only reply raised in transfer of July from her care in brief, GAL, OCS did not address it. The argues 2009. She that the place children's however, brief, did address this issue in her ment with the Dubovs while she was in Mon pointing given while out that Paula was not temporary tana was a placement and that attend, hearing notice of the and did not she she was entitled to notice once OCS decided given testimony notice that the would be permanent.20 to make it Additionally, she used at later and could have construes this decision as "essen any called and examined or cross-examined tially placement," a denial of and therefore hearing. witness from the earlier The GAL argues that she was entitled to know the points object also out that Paula did not basis for the request removal and to a hear September the use of the 2010 evidence at ing. OCS and the GAL concede that there hearing. the later notice, was no argue but that Paula was not The GAL is correct in her assertion that entitled to notice because she initiated the given Paula was notice of OCS's intent transfer. rely September on the hearing. 47.10.080(s) Alaska Statute provides that proper time for Paula to have raised this parents foster are entitled to notice of non- argument was in the court. The emergency transfers of children for whom provide CINA rules for the introduction of they 47.14.100(m) caring, are pro- AS previous testimony,19 and because Paula grandparents vides that are entitled to notice object did not to the master's consideration right appeal an OCS decision not to of the evidence September from the place a child with them. Paula was the hearing, the master cannot be faulted for her parent foster grandmother and a and thus consideration of that evidence. would have been entitled to notice of a trans- 47.10.080(s) fer under AS and AS Statutorily B. The Failure To Provide 47.14.100(m). case, But in this she did have Mandated In Notices The CINA requested notice because she the transfer Proceedings Did Not Violate Due herself, Although disputes Process. transfer, requested the the master found that Paula raises several claims that she was children, Paula initiated the removal of the process. denied due argues She that she and Paula argue does not finding is should provided have been with notice of her clearly erroneous. Because Paula initiated right challenge placement transfer, she had notice of the transfer. right to challenge denial of visitation with the children, and her to attend argues Paula also that she was enti hearings in 2009. separate- We address each tled to notice when the State denied her ly as different apply rules to each. request each that the children be returned to her case, first, questions: we ask two upon whether her return from Montana. The record notice, second, Paula was entitled to however, vague, is somewhat as to whether actually requested placement of the whether failure to notice was a viola- process rights. tion of her due children with her before the fall of 2010. 17(e) provides: 19. CINA Rule argues position 20. Paula also that OCS's non-emergency whether this was a transfer has Hearsay which is not otherwise admissible un- changed litigation. over the course of OCS did recognized exception hearsay der a to the rule put argument forth an alternative that AS may disposition hearing be admissible at the 47.10.080(s) did not entitle Paula to notice disposition and in review of a order if the transfer, emergency transfer because it was an fact, hearsay probative of a material has but even there OCS noted that Paula had re- trustworthiness, guarantees circumstantial *10 quested any that the children be moved. appearing parties given event, and the are a fair non-emergency whether it was a or emer- opportunity to meet it. gency analysis transfer does not matter in the as requested Paula the transfer. AS provide notice under requirement to was that Wikle does demonstrate record The 47.10.080(p). steps to take the with Paula work trying to lives; children's in the necessary to remain hearings Permanency did findings, Paula master's according to the Wikle, reapply for did not with cooperate not grandparent a argues next as license, interfered with the care a foster permanency of the entitled to notice she was with the Dubovs. children's August 2009 and occurred in hearings that challenge these find- not Paula does Again, dispute not and the GAL do July 2010. OCS ings. notice, they provide but failed to that OCS preju- lack of notice did not argue that unsupervised visitation Denial of found, because, any the master as dice Paula AS argues under subsequent cured problems were required provide to was 47.10.080(p), present OCS and able to Paula was hearing where denying her visita the reasons her with fully. participate of her and inform her the children tion with AS found The master decision. hearing on that request a right to 47.10.088(i) duty pro OCS of its relieved Paula was respond that and the GAL OCS because she was not notice to Paula vide was denied but rather denied visitation not But Paula a foster care license. eligible for it OCS maintains that unsupervised visits. permanency to notice of was entitled steps to enable continued immediate took 47.10.030(d)2 and hearings. Alaska Statutes visitation, through Paula failed to follow but 47.10.080(f)2 provide grandparents visits, availability despite the supervised with notice of all advance written should receive OCS supervisors from Gulkana. of volunteer children, concerning the includ proceedings "complete lack of that it was asserts grand a hearings. Paula is ing permanency [that] and her "own conduct engagement" to notice parent accordingly is entitled visitation, so the termination caused under these statutes. triggered." was not requirement notice entitled to notice of Because Paula was requires 47.10.080(p) Alaska Statute ques- hearings, we turn to permanency family provide reasonable visitation provide notice was the failure to tion whether denied, members, and, where visitation is rights. Paula's due a violation of family shall inform the "department her failure to argues that the the denial and of the of a reason for member prejudiced her and appropriate notice request a re- family ... member's placement deci- the outcome of the impacted make hearing." The master did not view and the argues that the master sions. She visitation, pre- specific findings regarding the improperly court determined hearing to address sumably because the harmless error. She the lack of notice was However, the mas- OCS's denial. because argues that harm was demonstrated permitted to that Paula was ter understood heavily the children's relied the master and noted that Paula supervised have visits affirming OCS's bonding Dubovs with the supervised pursue had failed to visitation was un- decision and because she not dis- Paula does the Gulkana volunteers. to the court. position able to supervised visits offered and pute that respond that Paula OCS and the GAL trying the difficulties in even admits to notice, or alter- prejudiced by the lack of Because Paula was not schedule the visits. by the visitation, any prejudice was cured natively, that there was no denied reasonable 47.10.080(f) part: provides, in relevant 22. AS 47.10.030(d) 21. AS provides: (e) section, of this as Except provided persons under AS entitled to notice give department advance written notice shall 47.10.030(b) grandparents entitled to in a child's case to of all 47.10.030(d) are entitled to under AS notice grandparent child if under notice of a to be heard at and are also entitled subsection (2) department has is aware that the child hearing. grandparent's mailing grandparent and the department. address is on file with the
4383
finally
that was
held to review
grandparents
grandchildren's
in their
lives
30
are
lightly."
not matters to be taken
ment.
The
legislature's requirement that
pro
OCSmust
determining
requirements
When
grandparents
vide
pro
notice in CINA
process,
employ
of
due
we
three-factor
ceedings similarly strongly supports the idea
test:23
grandparents
protectable
have a
interest
specific
[Identification
dictates of
proceedings.
in such
process generally requires
due
consider
First,
ation of three distinct factors:
Because
required by
notice is
stat
private
that will be
interest
affected
ute, and
grandparents
strong
because
have a
action; second,
official
the risk of an erro
proceed
interest
the outcome of CINA
deprivation
through
neous
of such interest
ings, the
prongs
first and third
of the Math
used,
procedures
probable
val
weigh
ews test
finding
favor of
a due
ue,
any,
if
of additional or
pro
substitute
However,
process violation.
second
and,
safeguards;
finally,
cedural
the Gov
prong
requires
of the Mathews test
us to ask
interest,
including
ernment's
the function
process
whether additional
would have bene
involved and the fiscal and administrative
words,
fited Paula.
In other
we must ask
burdens that
the additional or substitute
whether
likely
Paula was
to have achieved a
entail.[24]
procedural requirement would
more favorable outcome if
giv
she had been
We have held that "[the crux of
en notice of the 2009 permanency hearings.
opportunity
due
to be heard and Although
process analysis
the due
is a flexi
adequately represent
one's intere
focusing
ble and contextual one
on the inter
5 Generally,
sts.2
notice ensures
these
outcome,31
est and not
there must be
rights.26
government
interest
in not
prejudice
some actual
under
the second
providing
rarely significant
notice is
because
prong
merely
and not
possi
"theoretical
requirements
impose
"notice
little fiscal or
2
bility prejudice."3
of
upon
government
administrative
burden
27
agencies."
Even if
inadequate,
notice is
appeal presents
This
a close case.
opportunity
"the
to be heard can still be
plainly
failed in
obligation provide
its
preserved
protected
party
if
actually
Paula with the notice to which she was enti
appears"
presents
his or her claim.28
record,
tled. As far as
can tell
we
from the
provided
OCS has
no excuse for its failure.
Although
directly
we have never
ad
Nonetheless, we still must determine the ex
question
grandparent's
dressed the
of a
due
tent
to which Paula's absence from the two
process rights in
proceedings,
CINA
we have
permanency hearings may
prejudiced
previously
have
noted that
provide
failure to
no
might
permanency hearing
tice
her case. A
proc
result in the violation
due
was held
of
"place
ess.29 We have also stated that the
26, 2009,
August
shortly
after Paula had
ment of children and the involvement of
returned
to Alaska. Under CINA Rule
State,
Servs.,
State,
Family
Servs.,
23. D.M. v.
Div.
&
Dep't
Youth
29. Jacob v.
Health & Soc.
(Alaska 2000)
Servs.,
1181,
(citing
205,
995 P.2d
Children's
177 P.3d
Mathews
Office of
Eldridge,
v.
424 U.S.
96 S.Ct.
(Alaska 2008) (Jacob I)
(declining to comment
(1976)).
L.Ed.2d 18
fully
on whether
failure to
notice is a
process).
violation of due
Mathews,
334-35,
(citing
24.
Id.
hearing is to establish the case because her hearings prejudiced perma- August 2009 the Before each child." deeply the children became judge found that plan was permanency the nenecy hearing, But in that time. with the Dubovs bonded plan not was permanency the adoption, and reliance on the the master's overstates this hearing. At the changed at the chil- bonding the Dubovs between evidently that the told was hearing, the master did note Although the dren. now." okay plan with is "grandmother im- marked the children's family bond and with placement found The court in the deci- in as factors behavior provement perma- light in reasonable Dubovswas Paula, they were deny placement with sion to time, this At about adoption. neney plan of the master many elements only a few of the reports of harm made two OCS substantiated that Paula The master found considered. consequently de- was and she against Paula, be- placement in this case a was not It care license. her foster nied a renewal skills and OCS parenting cause she lacked presence Paula's unlikely that is therefore reports of harm had received substantiated of the hear- the result changed would have More- in Paula's care. children while to the ing. over, Paula did not found that the master to facilitate work with OCS cooperate or superior court hearing the At the second grandchildren. Fur- relationship with her placement with continued determined ther, it was Paula's found that the master placement and a appropriate, the Dubovs was allega- village and her "feud with Gulkana OCS's denial of to review hearing set was pre- against" Mr. Dubov that of harm tions in Noth- Montana. placement with relatives children, bonding not her with vented suggests that Paula was ing in the record were with length of time the children hearing. from this prejudiced her absence Dubovs. hearing is September 2010 process claim here The crux of the due 47.10.080(d), AS complicated. Under more opportunity not afforded the that Paula was hearing. to notice of Paula entitled was hearings in November until the to be heard required provide the again failed to But OCS although OCS 2010. But and December absence, and, there was in Paula's notice legally duty failed its testimony relating to significant amount of notices, oppor later had a full required initial the children's parenting and been tunity Had Paula not to be heard. OCS relied the Dubovs. placement with heard, opportunity to be provided with the testimony at Paula's upon this rights have been vio would her due However, at her later hearing. hearings allowed subsequent lated. But the call witnesses and hearing able to Paula was interests," represent "adequately [her] her to to contradict evidence her own stemming any process violation curing due hearing. For exam- testimony the earlier provide earlier notice.33 failure to from OCS's hearing testimony September 2010 at the ple, her witnesses hearing from Paula and After evidence, about Paula wish- regarding the conversation considering all of Paula's "just grand- proper [a] as Paula was not a ing to return to her status found that master developed at Paula's ma" further placement. dereliction Although OCS's hearing. ment partici- had Paula argues that The dissent to the evi- responding prevented her from present at especially had she been pated, and September 2010 against her at dence September 2010 itself, fully address she was able present her able to would have been better in her own later the evidence ten weeks respond to the evidence arguments ultimately get appear that did proceedings. It does not But Paula against her. hearing, after a full delay presenting had prejudiced by this that chance-she findings, which even made the master which her evidence. 1980)). (internal 213-14 D.M., 995 P.2d at quotation omitted) v. (quoting Maid, Inc. marks Matanuska Nonetheless, challenge. may now Paula does or not OCS have tested the boundaries reopen allow Paula to acceptable past the dissent would effort in a case has no adoption give bearing rights children's another hear whether Paula's *13 were vio Further, lated in this case. although OCS ing precise already on the issue that was litigated placement hearing. provide required at her The failed to the dis notice in this certainly case-and we despite recognizing sent would do this do not condone the that job analyze pain" "potential anguish" "considerable failure-our it whether this could cause the children.34 Here the chil prejudicial light error was in later hearing where opportunity Paula had an dren have lived with the for Dubovs almost appear and be heard. Here the years, by three case turns adopted have been the Du- bovs, question prejudice. on the Given that refer to the Dubovs as their "mom" and challenged any Paula has not "dad," of the master's reportedly doing "incredibly and are findings factual after the November and De well" with the Dubovs. Yet the dissent hearings cember 2010 where she had a full give essentially would the same hear opportunity put had, evidence and call ing already or re despite the fact them, call witnesses and cross-examine we challenge not now does the critical prejudice conclude that the from OCS's fail findings superior factual on which the court ure to required the notice was based its decision that she was not a suitable cured.38 placements.35 We conclude that Paula was entitled to The dissent suggest further seems to notice of the hearings analysis it is relevant to our that "[wle have hearings ment May after 2009. But many been in based years by troubled times recent superior on the unchallenged court's findings, statutory the State's failure to meet its re any prejudice we conclude that quirements was cured concerning handling of children's although ability participate cases."3 The dissent remarks that fully at placement review in "upheld we November and have the State's in action{s]" December 2010. process rights Paula's due "good enough," those cases as "join it cannot were therefore not in violated. approach in the case before us."37 merits, But we address each case on its own Superior C. The Court Did Not Err In job and our is to determine whether Finding Good Cause To Deviate superior court has erred in its factual find From ICWA Placement Preferences. ings legal Any conclusions. frustration with OCS should adopt not lead us to a "last- argues Paula next superior jurisprudence. straw" doctrine of finding good Whether erred in cause to deviate from 34. Dissent at 443 n. 16. precluded which the finder of fact would be from hearing any evidence as to the children's bond- ing further, likely with the Dubovs and goes step suggesting 35. The emotional dissent harm undermining that would come hearing, that at such a remand trial court adoption, required effectively any would be would to blind itself to invert the usual anal- evidence ysis by giving doing having of how well the children are Paula's interest in in their cur the chil- Yet, placement. precedence rent Dissent at 443 n. 16. dren with her we over the chil- repeatedly dren's best interests. analyz have stressed that even when good depart whether there is cause to placement preferences, the ICWA "the best inter 36. at Dissent paramount." ests of the child Adoption remain N.P.S., 934, (Alaska1994)(citing 868 P.2d Dissent 442-43. F.H., re 851 P.2d 1363-64 Adoption of (Alaska 1993)); State, Dep't see also L.G. v. understandably 38. The dissent is also concerned Health & Soc. 2000) (noting jurisdictions about the fact that in several of Paula's "[c]ourts other exhibits certainty were not introduced have held that 'the into evidence at the of emotional or psychological damage as well as the foster to the child if removed father's role as a tribal primary may from the caretaker also be consid Dissent at n. 14, 442-43 n. 15. representative. determining good ered the court in whether challenge But Paula does not the exclusion of evidence, placement pref cause challenge exists to deviate from the nor does she the foster fa- ICWA.'") Therefore, (quoting People erences of ... ex rel. ther's tribal association. there is no A.N.W., (Colo.App.1999)). considering part basis for these facts as of Pau- dissent, exclusionary proposed by The rule challenge. due la's ICWA es an obvious preferences. exists "where error. Plain error
ICWA's high for Indian mistake preferences made which creates has been tablishes resulted."42 Un injustice has likelihood preadoptive sett homes and in foster children any of the standard, not meet Dubovs do that it was not we conclude ings.39 der this superior court to find placement prefer plain error ICWA's set out criteria place normally from ICWA's be entitled cause to deviate Paula would ences. superior preferences. unless ment preferential deviate from good cause to court found superior de- court's decision to 2. The Here preferences. *14 pref- placement ICWA's viate from findings that master's the adopted plain error. erences was not from to deviate good cause there preferences. placement ICWA's that there was not argues Paula her remove the children from good cause to argu- preserve this failed to 1. Paula any argues that there was never care.43 She failing object the by to to ment placement the children's inquiry into whether findings below. master's in 2009. OCS compliedwith ICWA argues that the Although Paula now directly respond argu to this GAL do not point, superi- the on this superior court erred ment, focusing whether there was instead on object to Paula failed to noted that or court placement good cause to deviate from ICWA good findings that there master's the generally. more preferences placement pref from ICWA to deviate cause contingent upon her argument is Paula's that Paula has conse argues erences. having the agree did not to claim that she Paula makes argument. quently waived removed, by rejected a claim children response. no finding that was not in a factual master held that "Alas We have OCS is correct. by recognizes, Paula challenged Paula.44 As 53(d)(2) any party who requires ka Civil Rule provides § that "[wJhenever 25 1916 U.S.C. finding to file disagrees with a master's care from a foster an Indian child is removed finding at the trial timely objection to the purpose for the of further home or institution challenging to prerequisite as a court level care, adoptive place preadoptive, or foster 40 finding appeal." If there is a failure ment, be in accordance placement such shall may only review for object then this court provisions chapter...." of this This with the plain error.41 OCS cannot evade statute means that placement preferences a second ICWA's court, superior Before the argues that the children's removal. Paula find objections to the master's raised two upon Dubovs removal placement with the finding objected "[mJaster's to the ings. She compliant her care was not ICWA 47.10.088(i) relieves the that Alaska Statute inquiry no into whether that there was notice" and the duty provide State of its complied with ICWA. But before placement failure to finding that the "State's master's September the master determined to her did not requisite notices 2010 and Paula's mention of the made no prejudice her." She good cause to deviate from there was cause to deviate findings good master's placements, the master con ICWA-compliant Be placement preferences. from ICWA's below, of the ini factual cireumstances we review sidered the object cause Paula failed Paula's care. The master only plain tial removal from findings court's (2006). argument heading 1915(b) in her brief Based on the § 43. 39. 25 U.S.C. argue appears to that OCS needed to show (Alaska good children; however, Duffus, cause to remove 40. v. Duffus clearly developed argument in the 2003). body focuses on OCS's of her brief. Instead she removing trickery alleged the children after Id. at 319. left for Montana. omitted) (internal quotation marks Id. at 319 argument P.C., significant portion also 44. A (quoting D.J. v. 2001)). not admitted at trial. facts that were relies on attempts heard evidence about OCS's to lo- primary removed from the may caretaker ICWA-compliant placement, cate well as as also be considered the court in determin cooperatively failure to work good whether cause exists to deviate supervised steps OCS on visitation or the preferences necessary acceptable place- an become significantly, ICWA."4 Most we have held ment. "(allthough guidelines ICWA and the considerations, draw attention important argues also the children's ment with the Dubovs violated ICWA. She best interests of param the child remain ount." improperly placed asserts the master the burden on her to show that she was a Applying here, principles these we con- suitable and that OCS failed to clude that clearly master did not err in good show cause to deviate from finding good cause to deviate from ICWA's preferences. argue OCS and the GAL placement preferences. First, OCS made there was cause to deviate from the significant possible efforts to locate ICWA- placement preferences. compliant placement after the children were *15 arguments unconvineing. are longer no in Paula's care. requested Wikle While she is correct that OCS bears the relative through tribe, searches the Gulkana showing good burden of cause to deviate requested that the licensing unit locate an placement preferences,45 from it was not home, ICWA-compliant sent an OCS worker plain superior error for the court to find that village speak another possible rela- Indeed, OCS had met that burden. there is placements, tive and onee the Northern ample in supporting evidence the record Cheyenne was possible identified as a tribal superior good finding. court's cause affiliation, sent letters to seeking tribe Although "good ICWA does not define placement. relative possible A relative cause," we have held that "[wJhether there is placement Montana, found but OCS good cause to deviate place from ICWA's rejected placement because it was not preferences ment particular in a case de the best interests of the children. 46 pends many factors." previ We have ously looked to the Bureau of Indian Affairs superior The adopted court also the mas- guidelines examples for of factors that would findings ter's that the children "have suffered support deviate,47 good including: cause to trauma at the hands of" caregivers, their (i) request The biological parents including evidence, Paula And there was the child when the child age. is of sufficient including expert testimony, that the children @) extraordinary physical The or emotion- were bonded and stable in their current al needs of the child as established and that removal would cause testimony qualified of expert witness. emotional harm. The court also (i) unavailability of suitable families took into account prefer- the older children's for diligent after a search has Dubovs, adopted by ences to be completed
been
for
meeting
families
court found that the children were tied to the
criteria.[48]
preference
geographic region where the Dubovs live.
We have noted that
certainty
Finally,
"the
of emo-
there was evidence that
the Dubovs
psychological
tional or
damage to the child if maintained cultural
ties with the children's
N.P.S.,
934,
(Alaska
Adoption
Courts;
45.
868 P.2d
936
48. Guidelines
for State
Indian
of
Child
1994).
67,584, 67,594
Custody Proceedings,
Fed.Reg.
44
(Nov.
1979).
16,
State,
Servs.,
Dep't
46. L.G. v.
Health & Soc.
of
946,
(Alaska 2000) (quoting
Adop
In re
(internal
L.G.,
linquished with Paula, evident going to as was be dren would placement of Q.... didn't ask for [You] withdraw her relin- attempt to Maddie's you were that time because the children at signing the only days after quishment everybody and be co- trying to work with testimony. As to Paula's papers and operative? suggestion adoption, goal of permanent Well, the first yeah. Wouldn't that be A. fine, doing and that the Dubovs regain something? step trying to "okay plan," Paula would with Thus, being very time the court was at the firmly that OCS was on notice have been okay is with the "grandmother that the told adoptive place- away from her as the moving custody of trying regain plan," Paula was and she would the Dubovs ment and toward plan unaware of OCS's the children and was objection voice her the chance to have had only with the Dubovs. Not place them development. court, she to voice this to the was she unable that Paula's ab- Today's opinion concludes path towards reunifi- thought was on the prejudice her hearing did not at this sence Paula's continued desire cation. Given with her and OCS's contin- have the children decision would because hearing given Paula, the con- changed at this encour- have such as ued involvement parenting result- supervised stopping about aging cerns raised visits children, highly care license. But it of her foster in the loss house to discuss actually to underscore conclude that Paula's absence problematic serves this rationale *18 her. Charges hearing prejudice did not prejudice she suffered: from this the knew parenting that she about her raised problematic is for The court's conclusion year. Paula nothing about for over very that The court notes another reason. problem, about her licensure course knew perma changed August 2009 little at the working with OCS that she was but believed plan hearing permanency the nency because Then, problem. when Paula to correct that ignores the adoption. But remained right finally given notice and told of her was plan was reality prior permanency the decisions, standing master appeal the to acting of Paula as approved in the context earlier heavily at the relied absence is, putative as the parent, the foster placement for hearing failure to seek and her August hear At the 2009 adoptive parent. year: over a placement with the ing the court found that chil in the best interests of the a relative Dubovs was Only placement [with when ... away moved in court had thus not to be dren. The in was determined Montanal then, adop only adoption by Paula and toward ... the best interest of the kids prejudiced by the Dubovs. Paula was 14, 15, tion you were told 16 months after by her absence.4 person and Nelson Lori Wikle Valerie rights later, proper as provided notice of her Paula had a time when OCS still 4. Six months at
441 First, July Permanency Hearing questionable The it any whether of the against evidence Paula would have even sur July The hearing was a faced September hearing had opportunity second for Paula to indicate to present. Paula been It was irrelevant to the caring court that she was interested in purpose nominal hearing: consider steps for the children and to learn the neces- ation of placement the maternal sary impor- for her to do so. That it aunt's re was an (Indeed, quest. opportunity tant lost is evident request from the had been with standing commenced.) master's later reliance on Paula's drawn hearing before the even ruling against inaction in Second, her. As noted immediately was unable 'above, standing master stated that Paula significant rebut amount of testimony long placement waited too to seek of the regarding her properly failure to care for the addition, children with her. at this hear- Accordingly, children. against the case Pau ing the court indicated that the local tribe la that building had been year for over a supported placement Dubovs, with the cer- knowledge without her was locked in for tainly significant influencing factor the ulti- another two months op before she had the mate Accordingly, decision. Paula's absence portunity Third, respond. the chance to hearing from this weakened her case and present contrary testimony months later is a prejudiced her. poor substitute for notice and the to be Her absence was critical way. another heard at principal hearing. The burdens hearing, negative At this additional informa- of locating record, the testimony in the lis concerning tion brought Paula was to the it, tening to understanding it in the context attention of the being present, court. Not live, in which presented it was respond Paula was unaware allegations pose to it would logistical substantial unable to defend herself. problems any litigant. problems These magnified by are reality in rural Alaska September The Hearing Placement witnesses, are often held with placement hearing September attorneys, parties, judges in different was held to review OCS's deny decision to sum, locations.5 In presence would placement of the children with a maternal markedly have ability present altered her 47.14.100(m). aunt under AS Although the her case. hearing decision, focus of the was on that substantial evidence that Paula was an unsui- Conclusion placement table developed also at this I cannot prej conclude that Paula was not hearing. Today's opinion concludes by being kept udiced in the dark for over a any prejudice did not suffer from her year about the direction that the case was absence hearing at this because she was able taking-away placement with her be evidence at her own damaging cause of allegations about her and hearing Although later. given toward with the Dubovs-while opportunity try to meet pre- the evidence impression that Paula did not sented at care about September grew months later in children's her own and the chil it does not follow that Paula dren bonded suffered no with their new family. foster prejudice (Jacob from her II),6 earlier absence. In State v. Jacob we stated that *19 grandparent, sought prevent a it to further her for by of the children was undermined contacting terminating the children. After hearing. her absence from the earlier daycare requiring super- services and visits, case, February vised in 2010 OCS filed example, and 5. In this Paula was in one location; temporary protective location; received a preventing attorney order her was in another going Paula from to the children's school and the OCS social worker, the assistant AG, the requiring stay away her to 500 feet from the guardian guardian, ad litem, and counsel for the implemented children. OCS also a no-contact location; were in another a witness was in an- location; order biological for Paula and the representative children's other the of the North- location; Although ultimately pur- Cheyenne mother. did not ern Tribe was in another and order, protective
sue the example this is another the court was in Glennallen. any rights where may Paula was unaware of she (Alaska 2009). have had to contest OCS decisions. Paula's case 6. 214 P.3d 353
442
concerning han
statutory requirements
involve
its
of children
"placement
the
example,
in
For
dling
children's cases.
of
grandehil-
in their
grandparents
of
ment
grandparen
to
giving notice
areas of
the
taken
matters
to be
not
are
lives
dren's
reunify
7
ts,10
active efforts to
making
also noted
haveWe
lightly."
notice of
family,11
giving
and
Indian
meaningful
a
and
proceedings
of
notice
ultimately to
evidentiary showing
planned
to due
are essential
heard
be
right
rights,12we
parental
to terminate
be used
in
are situations
...
there
process, and
concerns
about
expressed
our
have
late
in the
to intervene
which the
however,
Ultimately,
performance.
State's
will be insufficient
case
stages
a CINA
of
action, conclud
the State's
upheld
we have
due
the initial
of
prejudice
cure the
efforts were
the State's
ing that overall
and an
Timely notice
violation.
process
despite the failure to
good enough or
im
especially
heard are
to be
opportunity
prej
no
there was
with the statute
comply
involving
place
in situations
portant
join in
party.
I cannot
losing
udice to
children.[8]
mentof
I
before us.13
in the case
approach
this
grandparents
right of
involved
Jacob
prejudiced by the
was
that Paula
believe
involving their
proceedings
of
be notified
notify
of three consec
her
State's failure
was
Paula's involvement
grandchildren.
space of fifteen
hearings over
utive
foster
but also as a
grandparent
only as a
placement of her
during which the
months
fair
given a
decided;
have been
She should
parent.
effectively being
grandchildren
as a
performance
defend her
opportunity
not demonstrated
certainly the State has
chang
prejudice.
the lack of
the State's
and to know
mother
foster
grand
her
placement of
regarding
ing plans
of this
legal
and
context
the factual
Given
adoption
children-away
case,
regarding evidence
including concerns
adoptionby the Dubovs.9
toward
properly adm
but not
in the record
available
in con
of Mr. Dubov
and the role
itted1
many times
troubled
have been
We
other
to look for
vincing OCS
failure to meet
by the State's
years
recent
ef-
by" passivity
State's remedial
of
"troubled
7.
Id. at 362.
forts).
Servs.,
State, Dep't
& Soc.
v.
Health
8. Jacob
of
I)
Servs., (Jacob
177 P.3d
Children's
Servs.,
& Youth
State,
D.M. v.
Div.
12.
Office of
Family
of
2000) ("We
205,
(Alaska
2008).
(Alaska
do not
995 P.2d
1181, 1185
request.").
timing
the state's
of
condone
grand
recently we held that an Indian
9. And
(or
rights
violated
due
mother's
mistakenly
Today's opinion
assumes that
13.
unfairness) when
prejudicial
that she suffered
jurisprudence"
adopts
out
a "last-straw
dissent
years
an issue raised
for two
of
had no notice
failures,
previous
OCS's
of frustration with
argument at
first time in final
State for the
this
in those cases to
ties the results
somehow
Alaska, Dep't Health
Amber B. v. State
trial.
of
of
string
of trou-
not correct.
case. That is
Servs.,
Servs.,
B.
Arlene
Children's
& Soc.
Office of
emphasize
past
bling
is cited to
cases in the
Servs.,
Alaska, Dep't Health & Soc.
v. State
of
cases and this case:
between those
difference
Servs.,
Op. & J. No.
Mem.
Children's
Office
violations were not determina-
OCS's
those cases
-
2012).
(Alaska,
1418, 2012 WL
April,
outcome,
they
This is
while here
are.
tive
language
express this
used to
from the
evident
I,
not shown that OCS's failure to Pau important hearings
la notice of several did reasons, prejudice I her. For these re
spectfully today's opinion. dissent I process
would hold that rights Paula's due
were violated.16 GRUNDBERG, Appellant,
Sue L.
v.
ALASKA STATE FOR COMMISSION RIGHTS, Appellee.
HUMAN
No. S-13866.
Supreme Court of Alaska. 18,
May 2012. 17,
Rehearing
July
Denied
(Alaska 1988).
exhibits. 749 P.2d
Nonetheless,
347 n. 4
law
Case
from this court and the United States
deeply troubling
Supreme
point
it is
remedy.
that while
Court
to such a
Where
already sharply
Paula was
behind the curve in
a lack of notice led to a denial of due
court,
presenting evidence to the
her trial attor-
grandparents, we have held that a tribal court
ney
steps
sup-
did not take
to offer
adoption
exhibits that
years
should be overturned three
after
ported
attorney may
her case. Paula's
have
approved
it had been
and new birth certificates
failed to offer these documents because she was
George,
issued
the State. Starr v.