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Barry H. v. State, Department of Health & Social Services

Supreme Court of Alaska

August 11, 2017

BARRY H., Appellant,

         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.


          CARNEY, JUSTICE.


         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.


         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, " ...

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