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Molly O. v. State, Dep't of Health & Soc. Servs.

Supreme Court of Alaska

March 14, 2014

MOLLY O., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Superior Court Nos. 4FA-11-00003/00004/00005 CN.

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. BOLGER, Justice, dissenting.

OPINION

Page 304

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

Page 305

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.

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 concerns about sexual abuse, she ultimately turned out to have been suffering from a yeast infection.

Page 306

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 the ...


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