Sarah A. v. State, Dept. of Health & Social Services, Office of Children's Services , 427 P.3d 771 ( 2018 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SARAH A., )
) Supreme Court No. S-16880
Appellant, )
) Superior Court No. 3HO-15-00021 CN
v. )
) OPINION
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) No. 7305 – September 28, 2018
OFFICE OF CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Homer, Charles T. Huguelet, Judge.
Appearances: Renee McFarland, Assistant Public Defender
and Quinlan Steiner, Public Defender, Anchorage, for
Appellant. Mary Ann Lu ndquist, Senior Assistant Attorney
General, Fairbanks, and Jahna Lindemuth, Attorney General,
Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her son. The
mother challenges none of the superior court’s factual findings; she rather alleges that
the court violated her due process rights during the termination trial by: (1) prejudging
the case; (2) improperly assuming the role of a prosecutor while examining witnesses;
and (3) relying on research and evidence outside the record to impeach witnesses and
disregard testimony favorable to her. Asserting that the court’s actions deprived her of
the right to an impartial decision-maker and amounted to structural error, she seeks
reversal and remand before a different judge. Although we agree that the court took
inappropriate action with respect to witness testimony and other evidence regarding one
issue at the trial, we conclude that this does not amount to structural error and that it does
not otherwise undercut the unrelated findings supporting the termination of the mother’s
parental rights. We therefore affirm the superior court’s decision.
II. FACTS AND PROCEEDINGS
Sarah A. and Johnny P. are the parents of Moe, who was eight years old at
the time of his removal.1 Sarah and Johnny were married and continued to reside
together at the time of trial. The couple has struggled with domestic violence, mental
illness, and severe substance abuse issues, including the use of methamphetamines and
opioids. The Office of Children’s Services (OCS) first became involved with the family
after it began receiving reports in late 2014 that Moe repeatedly arrived at school with
unexplained injuries. In August 2015 Sarah and Johnny both were arrested on assault
charges after a domestic violence incident in the home, prompting OCS to file an
emergency petition for temporary custody of Moe as a child in need of aid.2 It is
unnecessary at this point to describe the next year of OCS’s interaction with the family.
OCS petitioned to terminate Sarah’s and Johnny’s parental rights in
September 2016, alleging Moe was a child in need of aid under AS 47.10.011
1
We use pseudonyms to protect the parties’ privacy.
2
See AS 47.10.011 (enumerating instances where “court may find a child to
be a child in need of aid”); CINA Rule 6(b) (providing procedural structure for petitions
for emergency custody with court order for child in need of aid).
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(1) (abandonment), (8) (mental injury), (9) (neglect), and (10) (parental substance
abuse).3 OCS alleged that the parents’ struggles with substance abuse, mental illness,
and domestic violence were ongoing and that “the parents have triangulated providers
. . . with different information,” making it “extremely difficult to assess for progress and
elimination of safety threats.”
The termination trial took place over the course of three days. After two
days of trial in May 2017, the trial was continued to July.
May 2017 Trial Proceedings
Because Sarah contends on appeal that the superior court prejudged the case
after the first two days, we detail the relevant testimony and exchanges.
Kathryn Carsow, Sarah’s psychotherapist, testified that Sarah attended
therapy inconsistently. Given discrepancies between Sarah’s reports and information
from OCS, Carsow felt Sarah often was not honest about her substance use. Carsow
stated that Sarah was open to intensive outpatient treatment, but less so to residential
treatment. Carsow also reported that she and Sarah “made no progress” in addressing
domestic violence issues, describing an incident in which Johnny, during a
methamphetamine withdrawal, threw furniture and nearly strangled Sarah with an
electrical cord. Carsow also reported that Sarah misused taxi vouchers by requesting a
voucher for an appointment, then not attending the appointment or not actually having
an appointment, or requesting a voucher when she already had one from another
provider.
OCS caseworker Jocelyn Maneval characterized the parents’ “deception”
as “a global concern”; she testified that the parents were “not being forthright” and were
3
See AS 47.10.080(c)(3) (authorizing termination of parental rights to child
in need of aid upon satisfaction of statutory conditions).
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unwilling “to really commit to engaging in the services that were being offered and
provided.” Maneval reported that the parents “essentially faked” their urinalysis (UA)
tests and that OCS had difficulty getting them to attend meetings or engage in substance
abuse assessments. According to Maneval, Sarah missed drug tests and under-reported
her substance abuse history, denying use even when she tested positive.
Maneval also observed “denial about [domestic violence] being a concern
in the relationship.” She listed ongoing domestic violence reports after OCS became
involved: following a November 2015 meeting with OCS, Sarah and Johnny had a
physical altercation, and the next day he showed up to group therapy alone, with visible
injuries on his face; and in February 2016 Johnny choked Sarah with an electrical cord
and banged her head against the floor. Maneval remarked upon the extent of the parents’
denial: “[I]t was as if unless the police were called, [domestic violence] didn’t occur.”
OCS protective services specialist Alicia Kupczyk-Gregory testified about
numerous times Sarah deceived OCS or service providers, remarking on her lack of
honesty and noting “there appears to be a pattern of the parents putting a lot of effort into
making things seem like they’re okay when they are not.” When managing Sarah’s UA
testing, Kupczyk-Gregory observed suspicious behavior causing her concern that Sarah’s
UA tests were faked. In November 2016 Sarah refused to complete a UA test for OCS,
claiming she was doing one later that day for a treating physician. Sarah misled
Kupczyk-Gregory to believe her UA tests with other providers were observed when they
were not.
Kupczyk-Gregory testified that Sarah said she had been accepted to
residential treatment and wanted to see Moe before she departed, so OCS facilitated an
“off-the-books” visit; she did not enter any treatment, and OCS later received a denial
letter from the residential program. Kupczyk-Gregory noted that Sarah took “a very
long time” to complete the process for entering residential treatment. In February 2017
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Sarah misled an assessor, stating that she was receiving counseling services even though
she had terminated her sessions with Carsow.
The superior court interjected during Kupczyk-Gregory’s testimony, asking
why the termination petition was filed less than a year into the case and remarking that
it was “really unusual.” Kupczyk-Gregory responded that Moe needed permanency and
that the parents were not engaging with services.
Dr. Sarah Spencer, Sarah’s treating physician, testified that Sarah had made
significant progress since June 2016, when “she was taking benzodiazepines . . . and
using heroin and methamphetamines.” Dr. Spencer saw a “huge turnaround” in
September 2016, and she noted that “the only [positive substance test] in the last six
months other than her prescription medications was THC.” Dr. Spencer explained that,
because polysubstance abuse is common, her program does not require participants to
abstain from marijuana; rather, the focus is treating opioid use while “working towards
abstinence from all intoxicating substances.” Dr. Spencer also testified she learned from
OCS that Sarah had tested positive for methamphetamine at the end of April 2017 and
that she had missed her UA appointment three weeks before the termination trial.
The superior court asked Dr. Spencer about her marijuana policy,
remarking that documents showed Sarah “had been using it daily for more than 25 years.
And you’re not addressing that at all?” Dr. Spencer responded that she encourages her
patients to reduce use and gradually become abstinent. The court also requested
clarification about whether Dr. Spencer was treating Sarah for alcohol, cannabis, or
domestic violence, to which Dr. Spencer responded: “We monitor all substance use, but
we’re not specifically treating for anything other than opioids.”
At the end of the first two days of trial, the superior court summarized its
“impression so far” that both parents had a pattern of evading UA tests, and the court
requested to see at the next hearing “a list of all UA’s chronological, the results, and
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those that were scheduled and missed.” The court observed that Sarah in particular
tended to “evade and obfuscate and dodge,” exhibiting a pattern of “looking for
something that’s easier than what is prescribed.”
The superior court made it clear to both Sarah and OCS that she needed to
do another intake and get mental health services, remarking: “If you’re asking me to turn
a child over to someone with that kind of Axis I diagnosis and no treatment, you know,
that ain’t going to happen.” The court urged an end to Sarah’s “therapist-shopping,
doctor-shopping, program-shopping” and noted: “It usually doesn’t take with people
who are motivated . . . a year to get to . . . residential treatment.” Acknowledging that
manipulation and dishonesty about use are often part of addiction, the court indicated
that while it awaited Sarah’s testimony at the next hearing, she needed to begin treatment
in earnest, “regardless of what happens.” The court also emphasized that Sarah’s drug
test needed to show up clean for both marijuana and methamphetamine: “[M]arijuana
is not clean and sober especially when someone has a severe disorder, especially when
someone says they’ve been using it everyday starting in the morning since age 15.”
The superior court also had strong words for OCS, remarking: “I don’t
know that I’ve ever seen a petition filed this quickly . . . . [U]sually we try a little bit
longer to fix people before we give up, and I’m not certain that I know the exact reasons
for that from the testimony I’ve heard.” OCS later asked if the court’s impression was
that “OCS gave up,” to which the court responded: “I understand that you haven’t
stopped providing services . . . . [Y]ou didn’t say stay out of my office, go away, but they
filed the petition quicker than I’ve seen in any Homer case anyway.”
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July 2017 Trial Proceedings
Sarah also claims on appeal that on the final day of trial, during the
testimony of Dr. Spencer and an OCS case manager, the superior court assumed the role
of a prosecutor and improperly relied on personal experience and evidence outside the
record. Each exchange is set forth below.
Dr. Spencer
Dr. Spencer testified that, in the previous month, Sarah’s marijuana use was
more regular and that she was using it at consistent times for pain management.
Dr. Spencer stated there were no signs Sarah was misusing marijuana and noted there
were few other non-narcotic pain management alternatives available to an opioid addict
of limited means. The superior court interjected to ask Dr. Spencer about Suboxone’s
effects when mixed with marijuana. The court stated: “I just did a quick search about
marijuana and Suboxone . . . . and it seems to be quite controversial.”
Dr. Spencer responded that there is evidence marijuana use is associated
with positive outcomes for patients being treated for opioid use disorders and that studies
contradicting that view are inconsistent. The court interrupted Dr. Spencer, stating:
Yeah. I was just concerned in this case, because I’ve got a
document in front of me . . . that diagnosed [Sarah] as having
an opioid disorder that was severe and that she – was using
– I mean not opioid, marijuana, cannabis – disorder, severe;
and she’s using it twice a day, marijuana gets you high, and
she’s got a doctor that’s telling her that it’s okay. So, if she
has a severe cannabis disorder, should she be using cannabis?
Dr. Spencer could not say whether she agreed with the severe cannabis use
disorder diagnosis without first reviewing the records. Dr. Spencer noted her credentials
and said that Sarah’s marijuana use had not “been causing a problem for her” in their
interactions. The court then asked: “So, what is causing a problem from taking an
intoxicating substance?” Dr. Spencer explained:
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[T]he substance has to cause a significant impact on your
quality of life in order to have it be diagnosed with substance
use disorder. It doesn’t – it has very little to do actually with
the frequency of use . . . . It has to do with how the substance
is affecting your function and your quality of life.
The court responded: “The child’s removed. That’s how it’s affecting.”
Dr. Spencer disputed that reasoning, stating she thought it more likely that
the “severe dysfunction” and “impairment was – in the past was due to the use of
methamphetamines and opioids.” The court responded:
Okay. I’ve just been doing the CINA business for a long
time and dealing with substance abuse in the courts for more
than 30 years and with children, when they’re removed and
OCS says you got to stop using substances – and you
continue to use substances, I’ve never seen a child reunited
with their parents. And I’m a little concerned here because
I’ve got a medical practitioner that’s recommending to
continue to use substances, and when I’ve got the treatment
people on the other end . . . saying no and OCS saying no.
So, this is very troubling for me.
The court questioned Dr. Spencer about Sarah’s pain: “Well, what pain
does she have that she needs to smoke marijuana twice a day?” Dr. Spencer explained
that Sarah had chronic back pain, congenital foot deformities, and fibromyalgia and
listed her medications. The court responded: “[F]or future reference if you’ve got
someone that has an OCS case and they’re using marijuana, they’re probably not going
to get their kids back.” Dr. Spencer noted the lack of communication between herself,
OCS, and other providers, prompting the court to say: “I want to reunite parents and
their children and I don’t like to see things get in the way.” Dr. Spencer responded:
“[M]y job is to take care of patients in . . . the way I think is medically most appropriate
for that patient.”
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Cross-examination of Jocelyn Maneval
Sarah’s attorney elicited cross-examination testimony from OCS case
manager Jocelyn Maneval that Sarah’s THC levels had decreased over time. The
superior court interjected, stating: “Well, let me stop you there. I’m – practically have
a master’s degree in drug testing from military. Those numbers – if someone smokes
marijuana and has a test the next day, this can – be really, really high.”
The court again interrupted the cross-examination, reiterating: “The experts
will tell you the pattern is meaningless.” Sarah’s attorney continued asking Maneval
about the pattern, but the court continued interjecting, referring to what the court had
learned from expert testimony in a separate marijuana driving under the influence case:
“[E]ven the active THC in the blood, the amount of it, doesn’t really tell you anything.
In Washington they have a presumptive . . . like a five is automatically drunk but the
expert from Washington said it doesn’t mean anything.”
At the end of cross-examining Maneval, Sarah’s attorney objected, stating:
“I don’t know if you’re taking judicial notice or what but . . . . without having any
information about the information you’re relying on . . . we’re not able to cross-
examine.” The court responded: “I don’t have any information about what you’re
relying on either. You’re relying on scientific evidence, and you’re bringing it out
through a social worker.” The court then stated: “[Y]ou didn’t bring an expert so I’m
not relying on your testimony here to show – because that . . . requires expert testimony.
And I think if you had an expert, you would not get what you wanted out of it.”
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Order Terminating Parental Rights4
The superior court terminated Sarah’s and Johnny’s parental rights. The
court found that Moe “has experienced severe mental and emotional trauma from
exposure to domestic violence in his parents’ home.” The court detailed the injuries Moe
suffered while in his parents’ care, including frequent unexplained physical injuries, poor
school performance due to regular absences, and mental injuries, such as symptoms of
generalized anxiety disorder, severe emotional disturbance, and post-traumatic stress
4
Under relevant Alaska Child in Need of Aid (CINA) statutes and rules,
parental rights may be terminated at trial only if OCS shows, under Rule 18(c):
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or
conditions described in AS 47.10.011 and
(i) the parent has not remedied the conduct or
conditions in the home that place the child at
substantial risk of harm; or
(ii) the parent has failed, within a reasonable
time, to remedy the conduct or conditions in the
home that place the child in substantial risk so
that returning the child to the parent would
place the child at substantial risk of physical or
mental injury;
....
(2) by clear and convincing evidence that
(A) the Department has complied with the provisions
of AS 47.10.086 concerning reasonable efforts . . .
(3) by a preponderance of the evidence that termination of
parental rights is in the best interests of the child.
CINA Rule 18; see also AS 47.10.080.
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disorder. The court found the evidence indicated that Moe had significantly improved
since living with his grandmother, but he still required therapy.
The superior court found that Moe was subjected to the conduct and
conditions described in AS 47.10.011 (8) (mental injury from domestic violence), (10)
(parental substance abuse), and (11) (parental mental illness);5 that his parents had not
remedied the conduct or conditions within a reasonable time; and that returning him to
the home would place him at substantial risk of physical or mental injury. The court
found that Moe already had suffered serious mental injury as a consequence of chronic
domestic violence in the home. The court noted that domestic violence led to Moe’s
removal and that he was “still receiving mental health treatment and has not recovered
from injuries caused by his parents.” Because the parents had yet to complete a case plan
addressing their regular and ongoing domestic violence, the court concluded Moe would
continue to suffer if reunified with his parents.
The superior court observed that neither parent had completed case plan
requirements with respect to mental health treatment, despite severe diagnoses “that
contributed to the conduct that injured [Moe].” The court recognized, but found
insufficient, that Sarah was taking medication for her bipolar disorder at the time of trial.
The parents’ perceived unwillingness to address mental illnesses “that caused or
contributed to the substance abuse disorders and chronic domestic violence” further
weighed against reunification.
The superior court also found that both Sarah’s and Johnny’s serious
substance abuse disorders “substantially impair their ability to parent.” The court
questioned the parents’ dedication to sobriety for Moe’s sake, observing that neither
5
We note that the petition to terminate parental rights did not list the parents’
mental illness as a ground for finding Moe a child in need of aid, but Sarah does not raise
this issue on appeal. We therefore do not address the discrepancy.
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parent participated in UA testing or residential treatment and that both “frequently lied
about the extent of their abuse.” Both parents continued to use marijuana, and the court
found Suboxone treatment was ineffective in treating either their marijuana use or
methamphetamine addiction, noting that Sarah was “engaged in a Suboxone program at
the time [Moe] was removed, and it did not appear to have any positive effect on her
ability to parent.”
Throughout its discussion, the superior court referenced Sarah’s dishonesty
and unwillingness to engage in treatment. In discussing whether OCS made reasonable
efforts and whether those efforts had been successful, the court observed:
[Sarah] has better contact with OCS [than Johnny], but
engaged in a pattern of outright dishonesty, minimizing
problems, and using rationalizations and excuses to avoid the
hard work it would take for her to recover. She was
receiving medications for mental health problems and
substance abuse when [Moe] was removed. Nothing changed
after removal except that she is seeing a different doctor.
In the order’s conclusion, the court expressed similar sentiments:
[Sarah] engaged in a pattern of manipulation so she did not
have to embrace sobriety (Suboxone and marijuana v.
inpatient treatment and abstinence) or endure discussions
about her distorted thinking patterns (taking medication, but
dropping out of therapy) that caused or contributed to the
domestic violence that seriously injured her son.
The court found it was in Moe’s best interests to live with his grandmother, where he had
the “best chance for recovery from the serious mental injuries caused by his parents” and
would not be exposed to “unstable adults” who are “intoxicated and engaged in domestic
violence.”
Sarah appeals.
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III. STANDARD OF REVIEW
“Whether a parent’s due process rights were violated in a termination
proceeding is a question of law that we review de novo,”6 adopting “the rule of law that
is most persuasive in light of precedent, reason, and policy.”7
IV. DISCUSSION
The Alaska Constitution states that “[n]o person shall be deprived of life,
liberty, or property, without due process of law.”8 “The crux of due process is [having
the] opportunity to be heard and the right to adequately represent one’s interests.”9 “A
valid constitutional challenge based on due process requires ‘state action and the
deprivation of an individual interest of sufficient importance to warrant constitutional
protection.’ ”10
“Due process under the Alaska Constitution is ‘flexible, and the concept
should be applied in a manner which is appropriate in the terms of the nature of the
proceeding.’ ”11 To determine what process is due, we consider the following three
factors enunciated by the United States Supreme Court in Mathews v. Eldridge:
6
Alyssa B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 165 P.3d 605, 614 (Alaska 2007) (citing Jeff A.C., Jr. v. State, 117 P.3d 697, 702
(Alaska 2005)).
7
Dennis O. v. Stephanie O., 393 P.3d 401, 405-06 (Alaska 2017) (quoting
Jerry B. v. Sally B., 377 P.3d 916, 924-25 (Alaska 2016)).
8
Alaska Const. art. I, § 7.
9
Dennis O., 393 P.3d at 406 (alteration in original) (quoting In re K.L.J., 813
P.2d 276, 279 (Alaska 1991)); Berry v. Berry, 277 P.3d 771, 774 (Alaska 2012).
10
Dennis O., 393 P.3d at 406 (quoting Ostrow v. Higgins, 722 P.2d 936, 942
(Alaska 1986)).
11
Id. (quoting In re K.L.J., 813 P.2d at 278).
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First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and, the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.[12]
Applying these factors, we consider Sarah’s argument that the appearance of judicial
partiality violated her due process rights, requiring us to vacate the termination order and
remand for proceedings before a different judge.13
A. First Factor: The Private Interest Affected Is Of The Highest
Magnitude And Weighs In Sarah’s Favor.
The private interest at stake in a termination proceeding is significant. It
is well established that the interest in the care and custody of one’s own child is the most
basic of all civil liberties and “a fundamental right recognized by both the federal and
state constitutions.”14 We have held that the interest of a parent facing termination
proceedings is “of the highest magnitude” and “clearly falls within the protections of the
due process clause.”15
12
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska
2000) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
13
We note that Sarah does not make a claim of judicial bias under Code of
Judicial Conduct Canon 3(E)(1), nor did she move to recuse or disqualify the presiding
judge at trial. We therefore limit our discussion to Sarah’s due process claim.
14
Dennis O., 393 P.3d at 407 (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257
(Alaska 2001)); see also Alex H. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 389 P.3d 35, 49 (Alaska 2017); Flores v. Flores, 598 P.2d 893, 895
(Alaska 1979).
15
Dennis O., 393 P.3d at 407-08 (first quoting In re K.L.J., 813 P.2d at 279;
(continued...)
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To the extent Sarah would have us independently consider an additional
private interest — her right to an impartial decision-maker during a termination
proceeding — we decline to do so. We agree that parents, like all others who come
before a tribunal, enjoy a due process “right to a neutral and unbiased decision-maker
who presides over proceedings that are fair and that have the appearance of fairness.”16
We also bear in mind that “[s]ubmission to a fatally biased decisionmaking process is
in itself a constitutional inquiry” and “a fair trial in a fair tribunal is a basic requirement
of due process.”17 But when considering this first factor, we do not give “separate weight
to the various procedural rights independently established under the due process clause,”
and we instead limit our inquiry “to the significance of the underlying substantive right
requiring protection.”18 The substantive right here is the right to parent.19 The import
of perceived judicial partiality is more appropriately considered in the context of the
second factor: risk of erroneous deprivation and the probable value of the requested
procedural safeguards.
15
(...continued)
then quoting Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811, 831 (Alaska 2003)).
16
See Copeland v. Ballard, 210 P.3d 1197, 1201 (Alaska 2009).
17
RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056, 1066 (Alaska 2015)
(alterations in original) (first quoting United Church of the Med. Ctr. v. Med. Ctr.
Comm’n, 689 F.2d 693, 701 (7th Cir. 1982); then quoting Stivers v. Pierce, 71 F.3d 732,
741 (9th Cir. 1995)).
18
Alex H., 389 P.3d at 50.
19
See id. at 49.
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B. Second Factor: The Risk Of Erroneous Deprivation And The
Probable Value Of Remand Are Low.
Sarah argues that any appearance of a lack of judicial impartiality during
a termination proceeding is structural error, requiring that we automatically vacate and
remand.20 But Sarah ignores the fact that in the context of termination proceedings,
“[n]ot every potential deprivation of protected interests results in a due process
20
Sarah cites the United States Supreme Court’s Arizona v. Fulminante
decision stating that in criminal cases, “the presence on the bench of a judge who is not
impartial” is a structural defect that “def[ies] analysis by ‘harmless-error’ standards.” 499
U.S. 279, 309-10 (1991) (Rehnquist, J., dissenting in part) (citing Tumey v. Ohio, 273
U.S. 510 (1927)); see also Chapman v. California, 386 U.S. 18 (1967). Sarah urges us
to apply the same approach to termination trials because the proceedings are equally
tainted by judicial partiality, and a significant fundamental right — the right to parent —
is at stake. But we agree with the California Supreme Court that “significant differences
between criminal proceedings and [CINA] proceedings provide reason to question
whether the structural error doctrine that has been established for certain errors in
criminal proceedings should be imported wholesale, or unthinkingly, into the quite
different context of [CINA] cases.” In Re James F., 174 P.3d 180, 189 (Cal. 2008). And
in the past we have not simply stopped our analysis at whether a potential violation of
due process occurred. See Alex H., 389 P.3d at 50 (considering how incarcerated
parent’s inability to attend termination trial may have altered proceeding’s outcome);
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212-13 (Alaska 2000)
(considering first “whether lack of notice might deprive a parent of sufficient opportunity
to prepare her case” and then, after reviewing record, holding parent “fail[ed] to identify
any plausible way she was prejudiced in the termination proceedings”).
Sarah’s reliance on Vent v. State is similarly unavailing. 288 P.3d 752(Alaska App. 2012). In Vent the court of appeals vacated a decision denying an
application for post-conviction relief because the superior court’s outside research and
conduct “created an appearance of partiality.” Id. at 753. The court of appeals
concluded that the court had conducted an inadmissible ex parte investigation that
created an appearance of partiality, but, instead of ending its inquiry there, applied a test
to determine whether the defendant was substantially prejudiced. Id. at 757-58. Sarah’s
reliance is misplaced, not least because Vent is a criminal matter that did not treat judicial
partiality as structural error requiring automatic reversal.
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violation.”21 Although a party need not prove actual prejudice to establish a due process
violation, “a theoretical possibility of prejudice is not enough.”22 “[A] court must assess
‘the probable value’ of [the requested procedure] in reducing the risk that parental rights
might be erroneously terminated” and “consider the likelihood that [the requested
procedure] might alter the outcome.”23 This inquiry “is not the same as determining
whether any constitutional error was harmless, but more fundamentally considers”24 the
effect that the error might have had on a parent’s right to “be heard” and “adequately
represent [her] interests,”25 i.e., whether it “deprives the parent of a sufficient opportunity
to present a case.”26 We have denied due process claims where a parent failed to identify
any “plausible” basis for finding prejudice or did not theorize about how the requested
procedural safeguard might “potentially alter[ ] the findings about . . . parental
conduct.”27
For instance, in Alex H. v. State, Department of Health & Social Services,
Office of Children’s Services we addressed an incarcerated father’s claim that the
superior court violated his due process right to in-person attendance of his parental rights
21
D.M., 995 P.2d at 212.
22
Id.
23
Alex H., 389 P.3d at 50 (alterations in original) (quoting D.M., 995 P.2d at
212).
24
D.M., 995 P.2d at 212.
25
See In re K.L.J., 813 P.2d 276, 2 79 (Alaska 1991) (quoting Matanuska
Maid, Inc. v. State, 620 P.2d 182, 192 (Alaska 1980)).
26
Alex H., 389 P.3d at 50.
27
D.M., 995 P.2d at 210-11, 213; see also Dennis O. v. Stephanie O., 393
P.3d 401, 409-11 (Alaska 2017); Alex H., 389 P.3d at 50-53.
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termination trial by denying his prisoner-transport request and conducting the hearing
telephonically.28 We noted that “the generic benefits of in-person attendance do not
suffice to establish a per se due process right” for prisoner transport to a termination trial,
and we stated that to prevail the “prisoner must address the particular issues being
determined at the termination trial and identify how in-person attendance would reduce
the risk of an erroneous ruling on those issues.”29 We concluded this second factor
weighed against the father because he failed “to demonstrate how his in-person
attendance could have altered the outcome of the proceedings or why his telephonic
attendance increased the risk that the superior court would reach an erroneous result.”30
In Wendell C. II v. State, OCS we considered whether the superior court
violated the due process right to notice by relying upon outside information — social
science research not admitted into evidence — as a basis for terminating parental rights.31
The parents argued that the studies, detailing the effects of alcoholism and domestic
violence on families, could not be judicially noticed because they were subject to
reasonable dispute and that the lack of notice was improper and violated their due
process rights.32 We affirmed the superior court because there was “no reasonable
likelihood that the . . . decision to terminate parental rights would have been different
absent the social science studies cited in the opinion.”33 Because the court made “so
28
389 P.3d at 48-54.
29
Id. at 51.
30
Id. at 54.
31
118 P.3d 1, 2 (Alaska 2005).
32
Id. at 3.
33
Id.
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many other specific findings, based on admissible evidence,” its citation of academic
articles and studies did not require us to vacate the decision.34
Turning to Sarah’s case, we note that the court found by clear and
convincing evidence that Moe was a child in need of aid based on three separate
provisions of Alaska law: AS 47.10.011 (8) (mental injury from domestic violence), (10)
(parental substance abuse), and (11) (parental mental illness). Sarah challenged none of
the findings supporting these grounds for termination, relying entirely on her argument
that any appearance of partiality in a termination proceeding is structural error. But her
challenge to the court’s partiality pertains at most to one ground — substance abuse —
not to Sarah herself, and leaves the two other grounds for termination unaffected. One
ground alone sufficiently supports a termination order.35 By failing to challenge the
factual findings regarding the other grounds for termination, Sarah neglected to
“ ‘identify any plausible way that [she] was prejudiced’ at the hearing.”36 And, as
discussed further below, our own review of the record suggests no probability that
remand “might alter the outcome.”37
1. The superior court did not prejudge Sarah’s character or the
outcome of the termination proceedings at the trial’s midpoint.
Contrary to Sarah’s assertions, the superior court did not “prejudge[] the
case” or form a “premature negative opinion” of Sarah’s “character and credibility”
when, prior to the close of evidence and before she had testified, it shared its impression
34
Id. at 4-5.
35
Alyssa B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 165 P.3d 605, 618 (Alaska 2007).
36
See Dennis O., 393 P.3d at 410 (quoting D.M. v. State, Div. of Family &
Youth Servs., 995 P.2d 205, 213 (Alaska 2000)).
37
See id. at 409 (quoting D.M., 995 P.2d at 212).
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that she had exhibited a pattern of evasiveness and dishonesty with providers. The court
stated its “impression so far” — not its decision prior to the trial’s close.38 Although the
court referenced Sarah’s inclination to “evade and obfuscate and dodge,” this statement
was not a comment on her character but rather a fair summary of the testimony, which
in fact did indicate that she had triangulated service providers.
Multiple witnesses testified to Sarah’s level of deception, her denial of
substance abuse and domestic violence, and her refusal to enter residential treatment or
attend therapy regularly. Kupczyk-Gregory testified about how Sarah evaded UA
testing, misled assessors about services received elsewhere, and misrepresented the status
of her application to residential treatment so she could have an off-the-books visit with
Moe. Carsow described Sarah as dishonest, explained that she misused taxi vouchers,
and testified to discrepancies between Sarah’s and OCS’s reports. Even service
providers testifying on Sarah’s behalf said she “consistently denied use” of substances
38
Sarah offers cases from other jurisdictions as examples of prejudgment, but
all are more extreme than the superior court’s comments here. In People v. Johnson a
criminal verdict was overturned because the court “reached a conclusive opinion of [the
defendant’s] guilt prior to the close of all the evidence” and blatantly remarked, “[t]here
will be a finding of guilty” before the final witness took the stand. 281 N.E.2d 451, 452­
53 (Ill. App. 1972). No such declaration occurred here. In People v. Jackson a first-
degree murder guilty verdict was overturned when the court “repeatedly referred to the
shooting as ‘murder’ even though the trial had not ended.” 949 N.E.2d 215, 231 (Ill.
App. 2011). Finally, in Crandell v. United States the Fourth Circuit Court of Appeals
concluded the court had prejudged a medical malpractice case in part by disparaging the
plaintiffs’ case from the start, suggesting plaintiffs were unreasonable in their refusal to
settle the suit and making comments about the “possible financial ramifications of the
trial [that] were irrelevant to proper deliberation of the issues.” 703 F.2d 74, 75-76 (4th
Cir. 1983). The superior court’s conduct at the mid-point of Sarah’s proceeding did not
rise to the level of bias or prejudgment exhibited in these cases: the court remained
undecided on major issues, like whether OCS filed the petition too early, and did not go
so far as to demand the equivalent of a settlement or preordain a guilty verdict.
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or she had not given them documentation from other providers. Sarah herself later
admitted that she had not always been honest with OCS and stated that she “probably”
began getting honest with OCS “around . . . September of 2016.”
We also observe that the superior court requested observed weekly UA tests
between the two hearings and appeared open to hearing Sarah’s testimony — actions
inconsistent with a foregone conclusion. The court stated that it understood
“manipulation of services” and dishonesty are part of addiction but that Sarah “needs to
go to somebody” and “regardless of what happens . . . that needs to be fixed” because
“[i]f you’re asking me to turn a child over to someone with that kind of Axis I diagnosis
and no treatment, you know, that ain’t going to happen.”
Finally, we note that the superior court was balanced in its treatment of the
parties.39 The court addressed OCS, remarking: “[U]sually we try a little bit longer to
fix people before we give up, and I’m not certain that I know the exact reasons for that
from the testimony I’ve heard.” This concern permeated the hearing; the court
questioned OCS mid-testimony about the swiftness of its petition to terminate parental
rights, noting the decision was made “well before a year had expired” and asking:
“[W]hy that quickly?” Because the record shows the court was balanced in its treatment
of the parties and had not reached a final conclusion, we conclude the court did not
prejudge Sarah’s character or the outcome of the termination trial.40
39
Cf. Kinnan v. Sitka Counseling, 349 P.3d 153, 155, 161 (Alaska 2015)
(concluding there was no appearance of bias because court overruled certain evidentiary
objections and “expressly noted” evidence favorable to party alleging prejudgment).
40
See id.-21- 7305
2. Any perceived partiality related to only one of three distinct
termination grounds and would not have changed the outcome.
According to Sarah, the superior court’s rigorous, persistent, and extensive
interrogation of Dr. Spencer was that of a prosecutor, not a dispassionate or impartial
jurist, and the court exceeded its discretion to examine witnesses. Sarah asserts that the
court’s interruption of her cross-examination of Maneval regarding THC levels was both
hostile and improper, particularly the court’s refusal to provide a basis for its knowledge.
Sarah also contends that throughout the hearing the court “improperly relied on outside
knowledge regarding the proper treatment of pain in an opiate-addicted patient” and
disregarded evidence favorable to her.
We are disturbed by the superior court’s conduct, particularly its highly
inappropriate “quick search” for information not presented as evidence and its reliance
on other cases’ experts. The court apparently exceeded the bounds of judicial notice,41
41
Alaska Code of Judicial Conduct Canon 3(B)(12) provides that “[w]ithout
prior notice to the parties and an opportunity to respond, a judge shall not engage in
independent ex parte investigation of the facts of a case.” Canon 3(B)(12) makes an
exception for judicial notice of fact, permitted under Alaska Evidence Rule 201(a).
Rule 201(b) clarifies that a court may take judicial notice of a fact so long as it is “not
subject to reasonable dispute in that it is either (1) generally known within this state or
(2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.”
The superior court’s references to personal knowledge and facts outside of
evidence do not fall within this sheltered category. Sarah had no notice of the court’s
“quick search” about the interaction of Suboxone and marijuana, nor could she cross-
examine the expert testimony from the driving under the influence case or the military
drug-testing experience the court referenced. Although not referenced in its decision, the
court’s statements during trial gave the appearance of partiality and seemingly foreclosed
the possibility of concluding that Sarah had remedied her substance abuse.
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and likely abused its discretion to examine witnesses.42 We disapprove of this conduct,
as the appearance of partiality does violence to the integrity of the justice system.
But we note that the superior court at most demonstrated lack of
impartiality as it related only to one ground for terminating parental rights: that Sarah’s
substance abuse substantially impairs her ability to parent. The exchanges that she
contests all exclusively concern her failure to achieve full sobriety. Although these
exchanges may be enough to draw the court’s substance abuse findings into question,
Sarah has made no argument that the court’s remaining grounds for termination — that
Moe is a child in need of aid because he has suffered mental injury as a result of
42
Alaska Evidence Rule 614 authorizes courts to call or examine any witness.
Rule 614(b)’s commentary notes it is well-established that a court may interrogate any
witnesses, but emphasizes “[i]n trials before a jury . . . the court’s questioning should be
cautiously guarded so as not to constitute an implied comment.” To that end, “the court
abuses its authority when it plays the part of the advocate.” The commentary recognizes
that “the manner in which interrogation should be conducted and the proper extent of its
exercise are not susceptible of formulation in a rule” and clarifies that appellate courts
may reverse for abuse of discretion. Assessing whether the superior court improperly
assumed an advocate’s role, this court has looked to whether the judge’s “tone or
demeanor during [the] exchange . . . exhibited bias.” Kinnan, 349 P.3d at 161.
Questioning exceeds Rule 614(b)’s boundaries if the court “communicate[s] a bias
against [the witness] to the jury” or “suggest[s] in any manner that [the court] did not
believe [the witness].” Hartley v. State, 653 P.2d 1052, 1053 n.1 (Alaska App. 1982).
The superior court here was hostile to Dr. Spencer, discounting her
testimony about Sarah’s progress and giving the appearance that the court personally
disagreed with Dr. Spencer’s medical decision to focus on her patients’ opiate addiction
rather than their marijuana use. The court’s questioning of Dr. Spencer went on for
several minutes, and the court’s tone was argumentative, near prosecutorial, throughout.
The court’s tone and demeanor were also argumentative during Sarah’s cross-
examination of Maneval, when the court interjected to say: “[w]ell, let me stop you
there. I’m – practically have a master’s degree in drug testing from military. Those
numbers – if someone smokes marijuana and has a test the next day, this can – be really,
really high.” We do not condone such conduct.
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exposure to domestic violence and because her mental illness places him at substantial
risk of physical harm or mental injury — were plausibly tainted by the court’s perceived
lack of impartiality. One finding alone is sufficient to support the termination order.43
Because Sarah does not challenge the domestic violence or mental illness grounds for
termination, we conclude that the court’s conduct underlying the substance abuse finding
has “no impact on the outcome of the case.”44
The record confirms our conclusion that there is little risk of erroneous
deprivation of Sarah’s parental rights and that the probable value of remand is low. This
second factor does not weigh in Sarah’s favor.
C. Third Factor: The State’s Interests Weigh Against Sarah.
The State has articulated an interest in promoting “the child’s welfare and
the parents’ participation in the upbringing of the child to the fullest extent consistent
with the child’s best interests.”45 In the context of CINA proceedings, this includes an
interest in assuring “fairness, accurate fact-finding, the expeditious determination of
children’s matters, and the best interests of the child.”46 It is clear that the State “shares
the parent’s interest in an accurate and just decision.”47 However, because permanency
is also in the child’s best interests, the unnecessary “lengthening of judicial procedures”
43
Alyssa B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 165 P.3d 605, 618 (Alaska 2007).
44
Id.; see also Alex H. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 389 P.3d 35, 52 (Alaska 2017) (holding that “single instance of
possible judicial interference does not demonstrate that [the requested procedural
safeguard] would have reduced the risk of erroneous deprivation”).
45
AS 47.10.005(1).
46
CINA Rule 1(c).
47
In re K.L.J., 813 P.2d 276, 280 (Alaska 1991).
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may pose fiscal and administrative burdens that run counter to the child’s best interests.48
OCS argues that a court’s inability to “explore inconsistencies in witness
testimony or clarify its understanding” would “burden [OCS’s] interest in making a fair
and accurate decision by decreasing the court’s understanding of the facts.” We agree,
but that is not the scenario before us. It is difficult to see how OCS’s interest in fairness
and accurate fact-finding would be served by affirming the decision of a court that
openly relied upon extrajudicial facts, adopted the role of a hostile advocate, and gave
the appearance of partiality whether against the parent or OCS. A court can question
witnesses for the purpose of finding facts without taking on the role of an advocate by
moderating its tone and demeanor and providing fair opportunities for cross-
examination.
Far more compelling are the State’s interests in fostering the child’s best
interests and avoiding the administrative and fiscal costs of lengthening judicial
proceedings. While in Sarah’s household, Moe suffered mental injury as a result of
exposure to his parents’ chronic domestic violence, manifestations of mental illness, and
substance abuse. Moe is finally improving in his grandmother’s care: he is better
adjusted socially, his school attendance and performance have improved, and he displays
fewer symptoms of anxiety. He was removed from his parents’ care three years ago, in
2015. Remand at this juncture would create a fiscal and administrative burden
inconsistent with Moe’s best interests, particularly when it is undisputed that Sarah has
failed to remedy the conduct or conditions that rendered Moe a child in need of aid.
Although the State’s interest in fairness and accurate fact-finding is not
served by the appearance of, or actual, judicial partiality, the child’s best interests and
48
Dennis O. v. Stephanie O., 393 P.3d 401, 411 (Alaska 2017) (quoting In
re K.L.J., 813 P.2d at 280).
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the particular facts here tip this third prong against Sarah: remand would unnecessarily
lengthen judicial proceedings, jeopardizing permanency for a child who is finally healing
after suffering trauma and mental injury in Sarah’s care.
D. Conclusion
The superior court’s perceived lack of impartiality with respect to one issue
in this case did not rise to the level of structural error or violate Sarah’s due process
rights. Although the court may have exhibited partiality related to whether substance
abuse continues to substantially impair Sarah’s ability to parent, her ability to “be heard”
and “adequately represent [her] interests” with respect to the domestic violence and
mental illness findings was not plausibly prejudiced by those limited exchanges.49 Moe’s
best interests will not be served by delaying permanency and prolonging judicial
proceedings in the face of uncontroverted factual findings that Sarah has yet to remedy
the conduct or conditions that made him a child in need of aid.
V. CONCLUSION
The superior court’s decision terminating Sarah’s parental rights is
AFFIRMED.
49
In re K.L.J., 813 P.2d at 279 (quoting Matanuska Maid, Inc. v. State, 620
P.2d 182, 192 (Alaska 1980)).
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