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Dennis O. v. Stephanie O.

Supreme Court of Alaska

March 17, 2017

DENNIS O., Appellant,
STEPHANIE O., Appellee.

         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.


          WINFREE, Justice.


         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.


         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.


         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]


         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 ...

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