Appeal
from the Superior Court of the State of Alaska, No.
3PA-09-01278 CI Third Judicial District, Palmer, Gregory
Heath, Judge.
Appearances: Dennis O., pro se, Palmer, Appellant.
Stephanie O., pro se, Big Lake, Appellee. Nikole Nelson,
James J. Davis, Jr., Hollis Handler, and Sydney Tarzwell,
Anchorage, for Amicus Curiae Alaska Legal Services
Corporation.
Christine M. Pate, Sitka, for Amicus Curiae Alaska Network on
Domestic Violence and Sexual Assault. Gregory P. Razo,
Anchorage, for Amicus Curiae Alaska Native Justice Center.
Mark
W. Regan, Anchorage, for Amicus Curiae The Disability Law
Center of Alaska. Thomas M. Daniel, Perkins Coie LLP,
Anchorage, Theodore A. Howard, Wiley Rein LLP, Washington,
D.C., and Paulette Brown, American Bar Association, Chicago,
Illinois, for Amicus Curiae American Bar Association.
Brooke
Berens, Assistant Public Advocate, Chad Holt, Deputy
Director, and Richard Allen, Director, Anchorage, for Amicus
Curiae Office of Public Advocacy.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
OPINION
WINFREE, Justice.
I.
INTRODUCTION
A
father requested court-appointed counsel in a child custody
modification proceeding after learning that the mother had
hired a private attorney. The court denied the request. The
father - supported in part by several amici curiae - claims
that the denial violated his due process and equal protection
rights under the Alaska Constitution. We disagree: We decline
to expand our prior decisions by mandating court-appointed
counsel for every indigent parent in a child custody
proceeding when the opposing parent is represented by private
counsel, and we conclude that on the facts of this case the
father's constitutional rights were not violated by the
denial of court-appointed counsel.
II.
FACTS AND PROCEEDINGS
Dennis
and Stephanie O. divorced in 2011 and were awarded joint
legal custody of their four children.[1] They shared physical custody
of their three younger children, and Stephanie was granted
primary physical custody of their oldest daughter.
In
January 2014 Stephanie moved to modify the original custody
order, seeking sole legal and primary physical custody of all
four children. In an affidavit supporting the motion
Stephanie alleged that in 2013 Dennis had sexually assaulted
her and later trespassed in her home. Those allegations were
the principal basis of Stephanie's claim of a substantial
change of circumstances warranting a custody modification,
and they also had been the basis of a long-term domestic
violence protective order granted two months earlier. The
superior court judge presiding over the divorce proceeding
referred the matter to a family court master.[2]
Although
Stephanie initiated the proceedings while self-represented,
she secured an attorney for the limited purpose of
representing her during the custody modification hearing
before the master. In response Dennis requested that the
master appoint him counsel for the hearing, citing our
decisions in Flores v. Flores[3] In re
K.L.J. , [4] and Reynolds v.
Kimmons[5] and quoting Alaska Administrative Rule
12(e).[6] He argued that those authorities supported
appointing him counsel based on his indigence and the risk of
losing custody of his children, and he expressed specific
concern about the risk of self-incrimination due to
Stephanie's criminal allegations against him.
At the
hearing and in a separate written order the master denied
Dennis's motion for appointment of counsel. The master
noted at the hearing that he was not aware "of any
authority that mandates that the [c]ourt appoints counsel for
all indigent parents in all custody cases." When Dennis
later expressed frustration about that decision during the
hearing, the master responded:
[F]rakly, if I thought that the [Legislature and the Supreme
Court had the intent and ability to provide legal counsel for
you right now, I would order it in a heartbeat But there
simply is not the authority for it.
I think
it's very clear that I'm not authorized to do that.
During the hearing Dennis cited cases and statutes supporting
his various legal positions, and he impeached Stephanie's
credibility. But the hearing involved some complex legal
issues, and the master observed that Dennis occasionally
became frustrated at not having the assistance of an
attorney. The master accommodated Dennis by structuring the
proceedings to make them easier for him, frequently
explaining legal issues, and even requiring Stephanie's
attorney to warn Dennis when he was in danger of opening the
door to cross examination about the criminal accusations.
In a
November 2014 Report and Order the master determined there
was a substantial change in circumstances warranting
modification of custody.[7] The master found by a preponderance of
the evidence that Dennis had sexually assaulted Stephanie in
August 2013, committed criminal trespass after hiding in
Stephanie's garage and refusing to leave in September
2013, and violated the domestic violence protective order in
September 2013. The master's sexual assault and trespass
findings were based on Stephanie's testimony about the
incidents. Because Dennis separately had been criminally
convicted of violating the protective order, the master
determined collateral estoppel applied to that incident.
The
master also found that "Dennis presented compelling,
credible testimony" regarding two instances of domestic
violence Stephanie had committed in 1993 and 2003. Because
both parents had committed multiple incidents of domestic
violence, the master applied AS 25.24.150(i) and found
Stephanie "far less likely to continue to perpetrate
domestic violence."[8] That, in addition to the seriousness of
the sexual assault, led the master to recommend awarding
Stephanie sole legal and primary physical custody of the
children. Finally, the master recommended awarding Dennis
supervised visitation twice per week and unsupervised
visitation upon completion of a batterers' intervention
program and a parenting education program, [9] despite
Dennis's statements rejecting visitation absent some form
of custody.
The
superior court adopted the master's recommendations and
awarded Stephanie primary physical and sole legal custody of
the children.[10] Dennis appeals only the denial of his
motion to appoint counsel to represent him at the hearing.
Both Dennis and Stephanie represent themselves on appeal, and
we have accepted three amicus briefs from: (1) jointly Alaska
Legal Services Corporation, Alaska Native Justice Center,
Alaska Network on Domestic Violence and Sexual Assault, and
The Disability Law Center of Alaska (collectively Agency
amici); (2) the Office of Public Advocacy (OP A); and (3) the
American Bar Association (ABA).
Dennis
makes two arguments on appeal: (1) that the denial of
appointed counsel violated his due process rights under the
Alaska Constitution and (2) that the statutory mandate to
appoint counsel to an indigent parent if the other parent is
represented by a state agency but not by private counsel
violates the Alaska Constitution's equal protection
clause.[11] Agency amici and the ABA also argue that
the Alaska Constitution's due process clause requires
court-appointed counsel for every indigent parent when the
other parent in a custody case has hired private counsel.
III.
STANDARD OF REVIEW
We
review constitutional questions, including due process and
equal protection, de novo, [12] and we "will adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy."[13]
IV.
DISCUSSION
We
conclude that due process does not mandate court-appointed
counsel for all indigent parents in Dennis's situation
and that neither due process nor equal protection requires
reversal of the decision not to appoint Dennis
counsel.[14]
A. Due Process Does Not Require Appointment Of
Counsel.
"The
crux of due process is [having the] opportunity to be heard
and the right to adequately represent one's
interests."[15] That right stems directly from the
Alaska Constitution, which states that "[n]o person
shall be deprived of life, liberty, or property, without due
process of law."[16] "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.'
"[17]
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."[18] To determine what process is due, we
have adopted the three-factor Mathews balancing
test:[19]
[1] the private interest affected by the official action; [2]
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 ... [3]
the government's interest, including the fiscal and
administrative burdens that additional or substitute
procedural requirements would entail.[20]
We have
held that due process requires appointment of counsel to an
indigent parent if the proceeding could lead to a criminal
charge or the deprivation of liberty.[21] We also have
extended that due process right to three specific classes of
indigent parents.
First,
in Flores v. Flores we held that indigent parents in
private child custody proceedings whose opponents were
represented by a state agency were, as a class, entitled to
appointed counsel.[22] That case involved a parent represented
by Alaska Legal Services Corporation and a parent living in
California who was unable to travel to Alaska due to
indigence.[23] We held that the indigent parent's
private interest, "the right to direct the upbringing of
one's child, " was high.[24] Further, the risk of
erroneous deprivation of that parent's interest was grave
due to the unfairness of having a state agency representing
the other parent.[25] We noted that "[although the legal
issues in a given case may not be complex, " custody
determinations are difficult due to their "emotional
nature."[26] We determined that due process demanded
the appointment of counsel for all parents in that
situation, but the facts of that case were particularly
compelling.[27] Unable to travel to Alaska, the indigent
parent would have defaulted and effectively lost all parental
rights.[28]
Second,
in V.F. v. State we determined that due process
required appointment of counsel for indigent parents, as a
class, in Child in Need of Aid proceedings brought by the
state to terminate parental rights.[29] We noted that a
parent's private interest was even higher in a
termination case than in a custody proceeding.[30]
Finally,
we extended that latter holding to nonconsensual private
adoptions - when a parent's parental rights are
terminated to allow the adoption to proceed[31] - in In
re K.L.J.[32] We stated that the private interest
of the indigent parent, with termination of parental rights
at stake, was "of the highest
magnitude."[33] The state's interests in the
children and in "an accurate and just decision"
outweighed its "legitimate interest in avoiding the cost
of appointed counsel and its consequent lengthening of
judicial procedures."[34] The benefits of an attorney
would have been significant in that case.[35] It involved
"complex legal questions"; the superior court made
an important legal error; the indigent parent failed at
effectively presenting evidence, cross examining witnesses,
and testifying; the indigent parent's physical disability
made communication with the court very difficult; and
indigency prevented him from appearing in
person.[36]We recognized a right to counsel for all
indigent parents "defending against the termination of
their parental rights, " even though the facts of that
case were "compelling enough by themselves to indicate a
violation" of due process.[37]
1.
Due process for parents as a class
With
the foregoing cases in mind, we first examine the assertion
by Agency amici and the ABA that due process requires the
appointment of counsel for every indigent parent in a custody
case when the opposing parent is represented by private
counsel.
The
private interests of parents in these custody cases are
weighty, but they do not rise to the level considered in the
parental rights termination cases. We observe that
"[t]he right to the care and custody of one's own
child is a fundamental right recognized by both the federal
and state constitutions"[38] and that it "clearly
falls within the protections of the due process clause and
should be accorded significant weight."[39]But custody
hearings do not threaten termination of parental rights. We
recognized in V.F. that "a proceeding for the
termination of parental rights affects a parent's right
to direct the upbringing of. . . [a] child even more than
does a private child custody proceeding."[40] And as we
noted in In re K.L.J., the risk of termination
creates an interest "of the highest
magnitude."[41] Although custody is a significant
private interest, it does not reach that magnitude.
Similarly,
the risk of erroneous deprivation of these parents'
rights is less significant than in those cases requiring
appointed counsel. We readily acknowledge the challenges of
self-representation in custody cases; such cases are
difficult and emotional. We stated in Flores:
[T]he crucial determination of what will be best for the
child can be an exceedingly difficult one as it requires a
delicate process of balancing many complex and competing
considerations that are unique to every case. A parent who is
without the aid of counsel in marshalling and presenting
[favorable] arguments... will be at a decided and frequently
decisive disadvantage which becomes even more apparent when
one considers the emotional nature of child custody disputes,
and the fact that all of the principals are likely to be
distraught.[42]
Many
parents involved in custody disputes surely have felt the
same way at the close of a difficult hearing.
We are
not blind to the advantages that a parent represented by any
counsel - private or public - has over a self-represented
parent. But that advantage does not necessarily violate a
self-represented parent's due process rights. In
Flores we stated that "[t]his disadvantage is
constitutionally impermissible where the other parent has an
attorney supplied by a public agency."[43] If one parent
enjoys the benefit of representation by a state agency, we
held that "[f]airness alone dictates that the [other
parent] should be entitled to a similar
advantage."[44] If one parent is represented by private
counsel, however, that advantage does not raise the same
"constitutionally impermissible" fairness
concerns.[45]
Procedural
safeguards, including the Family Law Self-Help Center and
informal resolution programs, also reduce the risk of
erroneous deprivation for these parents. The court may
appoint a custody investigator, a guardian ad litem, or an
attorney for a child.[46] And judges have experience providing
procedural assistance to self-represented parties. Because
these cases do not involve the inherent unfairness of a state
agency representing one parent, and because of the ways that
the judicial system assists self-represented parents in
custody cases, the probable value of court-appointed counsel
here is lower than in cases where we have mandated
court-appointed counsel.
Finally,
in any due process case involving families the government has
multiple important interests at stake. "First and
foremost, the state has an interest in the
children."[47] On one hand appointment of counsel can
lead to more "accurate and just results, " and
therefore better outcomes for children.[48] On the other
hand, to the extent that appointment of counsel causes
increased conflict between parents and the "lengthening
of judicial procedures, " the state's interest in
the children weighs against appointment.[49] Additionally
"the state undoubtedly has a legitimate interest in
avoiding the cost of appointed counsel, "[50] and-based on
OPA's experience as statutory Flores
counsel[51] -mandating appointment of counsel to
this class of parents could potentially cost several million
dollars annually. Although the state's and parents'
interests partially coincide, the "fiscal and
administrative burdens" here are significant enough that
the government interest weighs against appointing counsel to
this class of parents.[52]
On
balance self-represented indigent parents facing opposing
parents represented by private counsel are not, as a class,
deprived of due process rights solely because they do not
have counsel. The private interest at stake - custody of
one's children-supports appointment of
counsel.[53] But unlike termination cases the
interest here is not "of the highest
magnitude."[54] And although counsel could protect the
interests of indigent parents, the risk of erroneous
deprivation does not categorically reach an unconstitutional
level.[55] Finally, the substantial potential cost
to the state outweighs the benefit of appointing counsel to
all such parents.
2. Due Process for Dennis
Having
determined that these parents do not, as a class, require
court-appointed counsel, we now apply the Mathews
factors to Dennis's claim that he ...