Appeal
from the Superior Court No. 2KB-13-06/08/09CN of the State of
Alaska, Second Judicial District, Kotzebue, Paul A. Roetman,
Judge.
J.
Adam Bartlett, Anchorage, for Appellant.
Joanne
M. Grace, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, JUSTICE.
I.
INTRODUCTION
The
father in a Child in Need of Aid (CINA) proceeding sought to
dismiss his court-appointed counsel and represent himself.
The trial court found that the father could not conduct
himself in a rational and coherent manner sufficient to allow
him to proceed without an attorney and denied his request.
After a six-day trial the court terminated his parental
rights to three of his children. The father appeals, arguing
that the trial court erroneously deprived him of his right to
represent himself during the CINA proceeding. We affirm the
trial court's decision.
II.
FACTS AND PROCEEDINGS
Barry[1] and his wife, Donna, live in
Kiana. The Office of Children's Services (OCS) took
emergency custody of four of their children in February 2013
after receiving reports that Barry was physically and
sexually abusing members of his family.[2]At their initial
hearings both Barry and Donna agreed to have counsel
appointed for them.
In
April 2013 Barry submitted a document to the court entitled
"Opposition Response to Claims and Demand to show
Apparent Authority and Actual Authority with Affidavit in
Support." He did not submit it through his attorney. He
asserted that he was participating in the case by
"special appearance and only as a courtesy,
objecting to STATE OF ALASKA subject matter
jurisdiction, and personal jurisdiction over [himself, as a]
natural Inupiaq man, vessels for Gods living souls."
(Emphasis in original.) He also asked to be relieved of
counsel, claiming that the Public Defender Agency was
"restrained" in its advocacy "by a power
seemingly higher, such as, Alaska Bar Association, that might
be administering to it's [sic] members over [his] free
will choice of what should be made into [his] record of
truths." He also demanded that the court "prove up
apparent authority, and actual authority first, before we
[proceed] any further." At a scheduling conference later
in the month, the court indicated that it would not take
action on Barry's filing because it had not been filed by
his attorney.
Barry
and his wife appeared by telephone at the next hearing the
following month. They appeared by telephone at all subsequent
hearings as well. He again asserted that he and his wife were
"here on special appearance and as a courtesy."
When the court asked about his desire to dismiss his
attorney, Barry confirmed that he wanted to represent
himself, reiterated that he was there "by special
appearance, " and again challenged the court's
"actual authority [and apparent] authority." When
the court explained that it would have to ask him some
questions to determine whether he could represent himself,
Barry repeated, "We're here on special appearance
and as a courtesy. . . . We'd like that from here on we -
we have no business with you."
The
court interpreted Barry's "authority"
statements as a challenge to its jurisdiction. It carefully
explained that the Alaska Constitution and the legislature
had established the court system and outlined its
authority.[3] The court then asked Barry if he was
willing to answer questions to help it make a decision
regarding Barry's representation. In response Barry
"object[ed], " telling the court, "You need to
answer my opposition before you can even proceed in this
matter." The court repeated its question, and Barry
repeated his "special appearance" assertion and
"object[ed] to the State of Alaska subject matter
jurisdiction and personal jurisdiction over [his] natural
Inupiaq family." The court again asked Barry to answer
its questions, but received no audible response. Because
Barry did not answer, the court noted that it had no
information either supporting his request or not, and moved
on to other issues.
The
rest of Barry's appearances leading up to his termination
trial were similar. He objected to the court's authority
again at the adjudication hearing in June. At a permanency
hearing in 2014 Barry continued to insist that the court and
OCS "might not have... the actual authority and apparent
authority to do what they're doing here, " and he
refused to answer the court when it asked him why he wanted
to dismiss his attorney. Instead he told the court that
"the State of Alaska is, quote, a private company, a
corporation, not a proper seat of government." The
hearing was continued until later in the month. When it
resumed, Barry argued at such length against the court's
authority that the court had to threaten to disconnect him
before proceedings could resume as normal. Shortly afterward,
the guardian ad litem filed a motion to require Barry and
Donna to appear in person for any future court hearings; he
alleged that Barry had been broadcasting the confidential
proceedings locally over the VHF radio.[4] The court
declined to order that Barry and Donna personally appear, but
did require that their future participation by telephone be
supervised by the local Village Public Safety Officer (VPSO).
In
April 2015 Barry's attorney moved to withdraw, citing
Barry's right and desire to represent himself. The court
was skeptical of the request. It noted that our decision in
McCracken v. State[5] required parties to "present[]
themselves in a way that is rational and coherent" in
order to be permitted to represent themselves. Despite its
reservations, the court agreed to hold a hearing on
Barry's request.
Barry
appeared by telephone and immediately repeated his obj
ections to the court's authority and asserted that he was
making a special appearance out of courtesy. He demanded that
the court "accept [his] affidavit into the court record,
the opposition and demand to show apparent and actual
authority for signature authority." The court once again
explained that it had to ask him questions to determine
whether to dismiss his attorney and allow him to represent
himself. Barry again asserted that the court lacked authority
over him and his family and asked the judge to recuse
himself.
The
court then denied his request to represent himself. It noted
that in other cases before it Barry had been able to answer
questions, but that in this proceeding it had "been very
difficult to determine what [Barry] wants other than the
challenges to ... the court's jurisdiction, challenges to
the court's authority." The court concluded:
I don't believe that based on the filings that he's
made pro se, based on the statements that he's said even
today which are statements that the court has heard before,
that [Barry] is capable of presenting his case in a manner
that is rational and coherent and consistent with the law
that governs the case, primarily because he just doesn't
believe that that law applies to him. And . . . the court
doesn't agree with that, but I understand [Barry], what
he's saying, and I appreciate that he is heartfelt and
passionate about those beliefs. And I respect them, even
though I don't agree with them.
The
court encouraged Barry to move past his jurisdictional
objections and to consult with his attorney. Instead Barry
continued interrupting with objections to the court's
authority. The hearing concluded with Barry exclaiming,
"You're all fired, " demanding that his
attorney be appointed as his "trustee, " ...