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,
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corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MOLLY O., )
) Supreme Court No. S-15076
Appellant, )
) Superior Court Nos.
v. ) 4FA-11-00003/00004/00005 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6877 – March 14, 2014
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Douglas Blankenship,
Judge.
Appearances: James H. Cannon, Law Office of James H.
Cannon, Fairbanks, for Appellant. Jacqueline G. Schafer,
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
In January 2011 the Department of Health and Social Services, Office of
Children’s Services (OCS) took emergency custody of three children. The children had
been in the care of their maternal grandparents beginning in October 2010, but before
their removal had returned to their parents. OCS, under the impression that the children
were being cared for by the parents at the time of removal, placed the children with the
maternal grandparents.
On August 13, 2012, the day the trial to terminate the mother’s parental
rights was to begin,1 the mother moved to have the grandmother joined in the proceeding
as the children’s Indian custodian. The trial court appointed counsel for the
grandmother, who moved to intervene. After holding an evidentiary hearing, the trial
court found that the children had been removed from the grandparents’ custody and that
the grandmother had thus been their Indian custodian at the time of removal. However,
the court denied both the mother’s motion to join the grandmother and the grandmother’s
motion to intervene, finding that shortly after the removal the parents revoked the
grandmother’s Indian custodian status by asking OCS not to place the children with her.
The grandmother moved for reconsideration and argued that her due
process rights were violated at the time of the removal. She argued that OCS did not
provide her with notice of the right she was entitled to as the children’s Indian custodian,
including notice of her right to intervene in the proceeding and of her right to be
represented by counsel. The trial court rejected this argument, finding that although OCS
breached its duty to provide the grandmother with notice required by the Indian Child
Welfare Act (ICWA),2 because of the short time between the children’s removal and the
parents’ revocation of the grandmother’s status as the children’s Indian custodian the
grandmother had suffered no significant detriment to her rights.
1
The children’s father relinquished his parental rights.
2
25 U.S.C. §§ 1901-1963 (2006).
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We affirm the trial court’s decision and hold that any error OCS may have
made regarding the notice provisions of ICWA was harmless.
II. FACTS AND PROCEEDINGS
Jessica and Aaron R. have three children, Ashley, Mark, and Lori, who are
Indian children for purposes of ICWA.3 For much of the children’s lives the family lived
with Jessica’s parents, Molly and Chuck, in Molly and Chuck’s home. In spring 2010
Jessica, Aaron, and the children moved out of that home. It appears that Jessica and
Aaron separated and Jessica moved in with a boyfriend, Doug, while the children stayed
with Aaron in a home with several other adults. Uncomfortable with this situation,
Jessica asked her parents to take care of the children until she and Aaron could get on
their feet financially. In late October 2010 the children returned to Molly and Chuck’s
home. In early January 2011 the children spent several days in a home that Aaron was
sharing with Jessica and Doug. Whether the stay was intended to be a permanent return
to their parents or a mere visit is the subject of conflicting evidence, the bulk of which
supports the trial court’s finding that the stay was intended as a visit. On
January 10, 2011, the children returned to Molly and Chuck’s home.4 That day Lori
complained to Molly about discomfort in her genital region. Molly took her to the
emergency room and, on the advice of hospital personnel, the next day took all three
children to be interviewed at Stevie’s Place.5 While Lori’s complaints initially raised
3
We use pseudonyms to protect the privacy of the family.
4
Again, the evidence differs as to whether their return was intended as a visit
or as a continuation of an indefinite placement with the grandparents.
5
Stevie’s Place is a facility-based program that provides forensic interviews
and medical exams in a child-friendly setting when there is reason to believe a child has
been sexually abused. RESOURCE CENTER FOR PARENTS AND CHILDREN : S TEVIE ’S
(continued...)
-3- 6877
concerns about sexual abuse, she ultimately turned out to have been suffering from a
yeast infection.
OCS quickly became involved. Believing the children to have been living
with their parents, on January 11, 2011, OCS devised a protective action plan under
which the children were placed with Molly and Chuck, who agreed to not allow Jessica
to remove the children from their home or allow her to have unsupervised contact with
them. The next day OCS filed an emergency petition to adjudicate the children as
children in need of aid and it took them into emergency custody, while maintaining their
placement with Molly and Chuck. The emergency adjudication petition alleged that the
children had been living in their parents’ home at the time of removal.
On January 14, 2011, OCS held a team decision-making meeting (TDM).6
The purpose of the meeting was to determine the children’s placement and to explore
issues involving the children’s hygiene, safety, and medical needs. The meeting was
attended in person by, among other participants, Jessica, Aaron, Molly, and Chuck, and
telephonically by Aaron’s half-brother, Joseph Frederick, and Joseph’s wife, Carol.7 At
5
(...continued)
PLACE , http://www.rcpcfairbanks.org/stevies_place.php (last visited Feb. 10, 2014).
6
According to OCS social worker Natosha Malone a TDM provides “an
arena where we can invite the family along with any supports to openly discuss the
concerns that [OCS] has and to develop a plan for placement. . . . We document the
strengths, the concerns, the ideas, and then hopefully bring the group to consensus by the
end of the meeting.” If the team is unable to reach consensus on placement, OCS’s
recommendation is implemented, but the participants are informed that they may contest
the decision in court.
7
The children would eventually be placed with the Fredericks in North
Carolina in October 2011, where they remain.
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the meeting the team agreed that the children would remain placed in unlicensed relative
care with Molly and Chuck.
Later that day the trial court held an emergency probable cause hearing.
At the hearing, which was attended by Jessica and Aaron, but not Molly or Chuck,
Aaron’s attorney stated that Aaron was concerned about drinking occurring in Molly and
Chuck’s home. OCS informed the trial court that placement with Molly and Chuck had
been decided at a TDM, and that another TDM, to review the placement while avoiding
the need for a judicial hearing, had been scheduled for the following week. At the
termination trial Malone testified that the second TDM was scheduled because Jessica
and Aaron disagreed with OCS’s decision to place the children with Molly and Chuck.
The second TDM was attended in person by Jessica and Aaron and their
attorneys, and telephonically by the Fredericks. Molly and Chuck did not attend. Jessica
and Aaron each expressed concerns about the children’s placement with Molly and
Chuck. Their concerns included suspicions about Chuck having been a perpetrator of
sex abuse, safety issues involving power tools in the home, drinking in the home, and
Jessica having blocked details of her childhood from her memory, suggesting that Jessica
had suffered abuse by her parents. At a later hearing Malone testified about the second
TDM. She stated that at the meeting she had not heard Jessica specifically ask OCS to
remove the children from Molly and Chuck, but that Jessica “wanted them moved.”
Malone stated that “[u]nder no circumstances was I under any impression that [Jessica]
wanted her kids to remain with [Molly and Chuck].”8 Despite the concerns, the children
remained placed with Molly and Chuck.
8
Malone testified that she felt that Jessica appeared more comfortable
speaking openly outside her parents’ presence. Malone testified that Jessica told the
group that her childhood “must have been really bad if I’ve blocked it out,” and that
Malone found Jessica’s statements to be “bone chilling.”
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According to social worker Justin Heminger, who took over the case in
spring 2011, another TDM was held in June 2011, shortly after he visited Molly and
Chuck’s home. The purpose of the TDM was to consider whether to change the
children’s placement. Heminger was concerned about the condition of the home,
including strong odors of cigarette smoke and cat urine, power tools, heavy boxes
stacked against the walls, clutter, overloaded dishes and ash trays, and auto parts in the
yard. The team decided to continue the placement for two weeks to allow Molly and
Chuck to alleviate the concerns. Following the TDM Molly and Chuck remedied most,
but not all, of OCS’s concerns about the home’s conditions.
But OCS continued to have concerns about the placement, which the
children’s guardian ad litem (GAL) had opposed since the beginning. According to
Heminger, OCS’s ongoing concerns included cleanliness, discipline issues, Lori’s
continuing yeast infection, discontinuance of Lori’s counseling, drinking, and neglect.
Another TDM was held in August 2011, at which the team decided to place the children
with their paternal relatives, the Fredericks, in North Carolina.9 But because that
placement could not occur immediately, and the team determined that the children
required immediate removal from Molly and Chuck’s care, the children were temporarily
placed in a local foster home before moving to the Frederick home in October 2011.
Molly and Chuck requested a review hearing to contest the change of
placement. OCS, the GAL, and Aaron opposed the request while Jessica took no
position. On September 1, 2011, the trial court held a proceeding to consider the request.
On September 8, 2011, the trial court announced its decision that because Molly and
Chuck were not parties to the child in need of aid (CINA) proceeding they were without
9
Attending this meeting were Jessica, Aaron, Chuck, representatives of
Eagle and Tanana Chiefs Conference, and the GAL. Molly did not attend. According
to Malone all of the participants supported the change in placement.
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standing to challenge OCS’s placement decision. Molly and Chuck did not appeal the
ruling.
A trial on OCS’s petition to terminate Jessica’s parental rights was
scheduled to begin on August 13, 2012. That morning, Jessica’s attorney filed a motion
asking the trial court to allow Molly to join the case as a party, claiming that she was the
children’s Indian custodian from whose care and custody the children had been
removed.10 The attorney averred that the trial court could not terminate Jessica’s parental
rights because OCS was not prepared to prove that entrusting the children to Molly’s
custody would result in serious emotional or physical damage to them.11 This was the
first indication OCS had received from the parents or grandparents that Molly had been
the children’s Indian custodian at the time of removal. OCS’s attorney stated on the
record that OCS had been operating all along under the belief that the children had been
living with, and in the custody of, their parents, not their grandparents, at the time of
their removal.
The trial court appointed counsel to represent Molly and scheduled an
evidentiary hearing on the Indian custodian issue. The hearing was held on October 5
and 8, 2012. Molly, Chuck, Jessica, and Doug testified, as did social workers Malone
and Heminger. The Native Village of Eagle participated. The bulk of the evidence
presented, including testimony by Molly, Chuck, Jessica, and Doug, indicated that the
children had been temporarily visiting their parents in early January 2011 rather than
having been returned to them permanently.
Following the hearing the trial court denied Molly’s request to intervene
and Jessica’s request to join Molly as a party. The court found that the children had been
10
See 25 U.S.C. § 1912(a).
11
See 25 U.S.C. § 1912(f).
-7- 6877
living with Molly and Chuck on January 12, 2011, when they were taken into OCS’s
custody. It concluded, based on this fact and on Jessica’s temporary grant of physical
care, custody, and control of the children to the grandparents, that Molly had been the
children’s Indian custodian at the time of their removal.12 The court noted that there was
conflicting evidence as to whether Jessica intended Molly’s custodianship of the children
to continue after the children were removed by OCS. It acknowledged Jessica’s
testimony that she did not tell OCS that she objected to the children’s placement with her
parents, that she never asked OCS to remove the children from her parents, and that she
wanted the children to remain with her parents. But it found that Jessica’s “testimony
was somewhat inconsistent and hindered by lack of memory.” It found more credible
Malone’s and Heminger’s testimony that Jessica had repeatedly objected to the
children’s placement with her parents and had asked that the placement be changed. It
found that Jessica “object[ed] to the placement with her parents commencing at least by
January 18, 2011.” The trial court concluded that Jessica’s “desire to remove the
children from [Molly and Chuck] act[ed] to terminate the Indian custodianship no later
than the date the children were removed with Jessica’s concurrence.”13
Molly moved for reconsideration, arguing in part that the trial court’s
decision was erroneous because, having found her to have been the children’s Indian
custodian at the time of removal, “the court failed to address or recognize that the state
had utterly failed to comply with the mandatory requirements for written notice imposed
12
25 U.S.C. § 1903 (6) defines “Indian custodian” to mean “any Indian
person who has legal custody of an Indian child under tribal law or custom or under State
law or to whom temporary physical care, custody, and control has been transferred by
the parent of such child.”
13
The trial court was referring to the children’s removal from Molly and
Chuck’s home on August 18, 2011.
-8- 6877
by CINA Rule 7(f) and 25 CFR 23.11(a),” and had thus deprived Molly of her statutory
right to counsel, her right to intervene in her grandchildren’s CINA proceeding, and her
right to due process.14
The trial court denied Molly’s motion. In doing so the court clarified its
findings to specify that Molly’s Indian custodianship ended on January 18, 2011, when
Jessica and Aaron notified OCS that they disagreed with the decision to place their
children with Molly and Chuck. The court found that OCS breached its duty to provide
notice to Molly of her right to intervene in the proceeding and to be represented by
counsel, as required by ICWA, but it found that, because Molly’s status as an Indian
custodian was extinguished six days after OCS took custody, OCS’s actions had not
deprived Molly of any important rights and the breach had thus been harmless.
Molly appeals, arguing that OCS’s failure to provide her with notice due
to an Indian custodian at the time the children were removed from her custody deprived
her of her right to due process, and that the parents’ revocation of Molly’s Indian
custodianship was ineffective until Molly received notice of the revocation. Molly asks
us to reverse the trial court’s denial of her request to intervene in the proceeding, to order
the children restored to her physical care and custody, and to vacate all orders issued by
the trial court since OCS’s assumption of the children into its custody in January 2011.
14
Molly argued that OCS erred by not providing her with notice of her rights
as an Indian custodian under 25 C.F.R. § 23.11(a) and Alaska Child in Need of Aid Rule
7(f). Under the regulation and rule when OCS petitions to adjudicate an Indian child as
a child in need of aid it must notify the child’s parents, Indian custodians, and tribe of
their rights under ICWA. Those rights include the right to intervene in the proceeding,
the right to be represented by counsel, and the right to obtain a continuance to prepare
for the proceeding. Additionally, the notice must include a statement of potential legal
consequences of the proceeding on the future custodial or parental rights of the parents
or Indian custodians.
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III. STANDARD OF REVIEW
We review a trial court’s factual findings for clear error and its conclusions
of law de novo.15 A finding is clearly erroneous if, after reviewing the entire record in
the light most favorable to the party prevailing at trial, we are definitely and firmly
convinced that the finding is mistaken.16
IV. DISCUSSION
A. The Parents Ended Their Grant Of Temporary Custody To Molly,
And Thus Molly’s Indian Custodianship, In January 2011.
A parent whose child is in OCS’s custody may, with the concurrence of
OCS, revoke an Indian custodianship that was in place when OCS took custody of the
child.17 A parent may not create or recreate an Indian custodianship for a child in OCS’s
custody by transferring temporary physical care, custody, and control of the child to an
Indian person because OCS, not the child’s parent, is the legal custodian of such a child,
with sole authority to direct the child’s physical care, custody, and control.18 OCS’s
placement of a child with an Indian person does not create an Indian custodianship.19
15
Thea G. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
291 P.3d 957, 961 (Alaska 2013) (citing Lucy J. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 244 P.3d 1099, 1111 (Alaska 2010)).
16
Id. at 961-62 (quoting Brynna B. v. State, Dep’t of Health & Soc. Servs.,
Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
17
Ted W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
204 P.3d 333, 339 (Alaska 2009).
18
AS 47.10.084(a); see also In re J.J., 454 N.W.2d 317, 327 (S.D. 1990).
19
25 U.S.C. § 1903 (6) specifies that an Indian custodian relationship is
created when “the parent of such child” has temporarily transferred physical care,
custody, and control of the child to an Indian person. (Emphasis added).
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At the time of the termination trial Jessica wanted Molly to be her
children’s Indian custodian. But Jessica and Aaron’s earlier action in informing OCS of
their opposition to the children being placed in Molly’s care acted to terminate Molly’s
Indian custodianship. Despite her wishes at the time of the termination trial, Jessica was
without authority to reinstate that relationship.
The trial court found that Jessica and Aaron ended Molly’s Indian
custodianship on January 18, 2011, by stating at a TDM that they did not want the
children placed with Molly and Chuck. On appeal, Molly argues that any such sentiment
by the parents was ineffective to end Molly’s Indian custodial relationship because the
parents’ intention was not communicated to Molly. But Molly misses a key point.
Under section 1912(a) of ICWA, it is “the party seeking the foster care placement
of . . . an Indian child” who “shall notify the parent or Indian custodian and the Indian
child’s tribe” of the pendency of the proceeding and of the parent’s, Indian custodian’s,
or tribe’s right of intervention. Here, the party responsible for providing such notice was
OCS. By telling OCS on January 18, 2011, that they did not want their children placed
with Molly, Jessica and Aaron effectively informed OCS that any grant of physical care,
custody, and control they may have earlier given Molly over their children no longer
existed. Regardless of Molly’s knowledge, or lack thereof, of this communication, OCS
was the party charged with notifying the children’s Indian custodian, if any, of the
pendency of the CINA proceeding. Jessica and Aaron’s statements gave OCS actual
knowledge that, as of January 18, 2011, Molly was not the children’s Indian custodian.
OCS thus had no duty, from that time forward, to provide Molly with notice under
ICWA.20
20
Molly argues that OCS breached not only a duty to provide her with notice
of her rights as the children’s Indian custodian, but also a preliminary duty to inquire into
(continued...)
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Once an Indian custodian’s status has been revoked, that person has no role
in ongoing child protection proceedings. By way of illustration, in In re G.L.,21 a
grandmother informed the state social services agency and the trial court that she was a
child’s Indian custodian after the trial court had issued jurisdictional findings.22 The
grandmother’s disclosure of her status triggered the agency’s duty to provide her with
20
(...continued)
her status as such. OCS responds that the facts available at the time gave it no reason to
suspect that an Indian custodianship may have existed in this case, and thus it had no
duty to inquire into Molly’s status. We note the statement of the Michigan Supreme
Court:
While it is impossible to articulate a
precise rule that will encompass every possible
factual situation, in light of the interests
protected by ICWA, the potentially high costs
of erroneously concluding that notice need not
be sent, and the relatively low burden of erring
in favor of requiring notice . . . the standard for
triggering the notice requirement of
25 U.S.C.A. 1912(a) must be a cautionary
one. . . .
In re Morris, 815 N.W.2d 62, 64-65 (Mich. 2012). Here, the trial court correctly
concluded that the short period of time between the children’s removal and the parents’
revocation of Molly’s Indian custodian status rendered any error OCS may have made
in not providing Molly with notice of her rights under ICWA harmless. The same
analysis compels a conclusion that any error OCS may have made by not inquiring into
Molly’s status was also harmless. Thus, we need not and do not decide whether, given
the facts available at the time, OCS had a duty to inquire into Molly’s status, and, if so,
whether it violated that duty.
21
99 Cal. Rptr. 3d 356 (Cal. App. 2009).
22
Id. at 360.
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notice under ICWA.23 The agency did not provide the required notice, but before any
further substantive proceedings occurred in the case, the mother revoked her grant of
custodianship to the grandmother.24 The mother later recanted her revocation and
expressed her desire to have the grandmother’s Indian custodian status reinstated. The
appellate court held that once the grandmother’s “Indian custodian status was revoked,
the notice provisions of ICWA no longer applied to her, regardless of [the parent’s]
intent to the contrary.”25 The court held that while the agency erred in failing to provide
the Indian custodian with notice, the error was harmless.26 The court concluded,
“[G]iven the unusual procedural posture in which we address the issue of notice to an
Indian custodian, even a conditional reversal and remand for further ICWA notice would
be futile, an empty formality and a waste of ever-more-scarce judicial resources.”27 We
agree with the rationale of G.L.
The trial court’s factual finding that Jessica objected to the children’s
placement with Molly and Chuck on January 18, 2011, is supported by the record and
thus not clearly erroneous. The trial court’s conclusion from this finding that Jessica’s
desire to remove the children from Molly and Chuck acted to terminate Molly’s Indian
custodianship is not erroneous. And the court’s determination that OCS’s failure to
provide notice of the rights of an Indian custodian to Molly was harmless given that
23
Id. at 365-66.
24
Id. at 362, 366.
25
Id. at 366.
26
Id. at 366-67.
27
Id. at 367 (quoting In re E.W., 88 Cal. Rptr. 3d 338, 343 (Cal. App. 2009)).
-13- 6877
Molly’s Indian custodianship was terminated six days after OCS took custody is also not
erroneous.
B. Molly’s Other Arguments Are Without Merit.
Molly argues that Jessica created an Indian custodianship in her by
executing powers of attorney for the children, and that because Jessica did not revoke the
powers of attorney Molly’s status as the children’s custodian was never revoked. She
argues that because she was not informed that the powers of attorney had been revoked
OCS was required to treat her as the children’s custodian, even though Jessica directly
told OCS that she opposed Molly’s custodianship. But, by informing OCS that she
opposed Molly’s exercise of custody over the children, Jessica revoked, at least as far as
OCS’s relationship with Molly was concerned, any indicia of custody that Molly had
acquired through the powers of attorney. By their terms, the powers of attorney were
“revocable by [Jessica] at any time.” Molly’s argument thus has no merit.
Finally, Molly argues that because OCS violated its duty under section
1912 of ICWA 28 to provide her with notice of the CINA proceeding and of her right to
intervene in it, section 191429 of ICWA mandates that all of the trial court’s orders
following the children’s removal must be vacated, the case must be reset to its status at
the time of the removal, and the children must be returned to Molly’s physical custody.
We reject this argument because of our holding that OCS’s error in not providing notice
to Molly was harmless.
V. CONCLUSION
For the foregoing reasons the trial court’s denial of Molly’s request to
intervene in the children’s CINA proceeding is AFFIRMED.
28
25 U.S.C. § 1912 (2006).
29
25 U.S.C. § 1914 (2006).
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BOLGER, Justice, dissenting.
The Indian Child Welfare Act creates important procedural rights for Indian
custodians.1 For example, in any state court involuntary proceeding involving an Indian
child, “the party seeking the foster care placement of, or termination of parental rights
to” that child must provide notice to the Indian custodian of the proceedings and of his
or her right to intervene,2 and an indigent Indian custodian has a statutory right to court-
appointed counsel.3
Here, the superior court ultimately concluded that Molly was an Indian
custodian for ICWA purposes at the time OCS filed its initial petition. In my view,
Molly’s Indian custodian status should have been apparent after minimal inquiry because
(1) the children had been living with her for months, (2) Molly brought the children to
the attention of OCS, and (3) OCS immediately returned the children to her care. The
superior court should have appointed counsel to represent Molly at the very first hearing
and provided notice to all parties of Molly’s status as an Indian custodian.
However, this court’s decision reasons that the superior court’s failure to
provide notice and counsel to Molly was harmless because Aaron and Jessica objected
to Molly’s custodianship at a meeting with OCS a few days later. I respectfully disagree
with this conclusion.
If the court had properly recognized Molly’s status and appointed counsel
for her, then the course of the following proceedings may well have been much different.
Aaron and Jessica may have realized the benefits of continuing Molly’s status as an
Indian custodian. Molly may have chosen to participate in the team decision meetings
1
See 25 U.S.C. § 1912 (2013).
2
§ 1912(a).
3
§ 1912(b).
-15 6877
where the parties discussed the children’s placement. And with competent
representation, Molly would have recognized her statutory right to judicial review of
OCS’s later decision to remove the children from her care.4
In a criminal case, interference with a defendant’s right to counsel is often
considered to be a structural error that requires reversal because the consequences of
such an error “are necessarily unquantifiable and indeterminate.”5 Similar considerations
leave me skeptical about this court’s conclusion that there was no harmful consequence
from the failure to appoint counsel for Molly. I respectfully dissent.
4
See AS 47.14.100(m); Irma E. v. State, Dep’t of Health & Soc. Servs., 312
P.3d 850, 853-54 (Alaska 2013).
5
Cook v. State, 312 P.3d 1072, 1088 (Alaska 2013) (Maassen, J., dissenting)
(quoting United States v. Gonzalez–Lopez, 548 U.S. 140, 150 (2006)); see also
McKinnon v. State, 526 P.2d 18, 24 (Alaska 1974).
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