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Amy S. v. State, Department of Health & Social Services

Supreme Court of Alaska

April 26, 2019

AMY S., Appellant,

          Appeal from the Superior Court No. 3PA-17-00055 CN of the State of Alaska, Third Judicial District, Palmer, Honorable Vanessa H. White, Judge.

          J. Adam Bartlett, Anchorage, for Appellant.

          Laura Fox, Senior Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.




         A mother appeals the superior court's decision adjudicating her child as a child in need of aid, contending that the court relied in part on the record from her previous custody proceeding without giving her prior notice. The mother argues that by not giving her notice, the court violated her due process rights. Relying on cases involving judicial bias, she then claims that the superior court's due process violation warrants automatic reversal of the court's adjudication finding, or, alternatively, reversal on the basis that the error was not harmless.

         We assume - without deciding - that the superior court violated the mother's due process rights, but we affirm the adjudication decision because she has failed to demonstrate that this alleged error was anything but harmless.


         A. Emergency Petition For Adjudication

         In June 2017 Amy S.[1] took her son, Zoltan - age 11 and an Indian child under the Indian Child Welfare Act (ICWA)[2] - to a hospital emergency room. Zoltan was experiencing homicidal and suicidal ideation, and hospital doctors determined he met the criteria for admission. Jack, Zoltan's father, had legal custody, and Jack's consent was needed for medical treatment. Jack refused consent because he believed there was no private insurance coverage for the $2, 000 per day treatment, and he wanted time to figure out how to pay for it. Zoltan nonetheless was admitted, and the Department of Health and Social Services, Office of Children's Services (OCS) filed an emergency petition for a child in need of aid (CINA) adjudication under AS 47.10.011(4)[3] and for temporary custody. OCS noted in its petition that Jack and Amy were involved in a "contentious" custody dispute and recounted some of OCS's history with the family, including 18 OCS reports filed against Jack and 5 against Amy. But OCS also noted that the vast majority of the reports were unsubstantiated.

         B. Probable Cause Hearing

         The superior court held a probable cause hearing over three days.[4] At the beginning of the hearing the court referenced its prior participation in the parents' child custody case, stating: "There's been a long, protracted custody dispute between the parties. Under House Bill 200, that's actually a good thing, because we can hear some of the issues involving [Zoltan] simultaneously in both of the cases."[5] On the hearing's third day, Jack agreed to stipulate that Zoltan was a child in need of aid under AS 47.10.011(8)[6] so that he could continue receiving psychological treatment in a therapeutic group home. Jack had not yet determined whether Zoltan would qualify for insurance if he were discharged from OCS's custody, and Jack thought it best Zoltan remain in OCS's custody to continue receiving treatment.

         The court then found Zoltan to be a child in need of aid under subsection (8) based on Jack's stipulation, "allegations in [OCS's] petition and . .. recent motion practice ... in the domestic relations case." The judge asserted: "I could make th[e] probable cause finding just by... taking judicial notice of the domestic relations file and under HB 200, 1 can do that. I can take judicial notice of the domestic relations file, and I'm expected and truly required to take notice of that file."

         C. Adjudication Hearing

         The superior court held a contested adjudication hearing in September and November 2017. OCS presented testimony from several witnesses about Amy's conduct and its effect on Zoltan, and Amy called her therapist to testify on her behalf.

         1. OCS's evidence

         Zoltan's therapist expressed concern that Amy appears to rely on Zoltan for comfort and that this could cause him difficulty building relationships later in life. Zoltan's caseworker shared this concern, testifying that she thought Amy was having "her emotional needs met by [Zoltan rather than] meeting his emotional needs." The caseworker also testified to concerns that, if Zoltan were returned to Amy's custody, Amy would be emotionally manipulative and encourage Zoltan to disengage from his father. The caseworker said that Amy had attempted to manipulate Zoltan while in his residential treatment facility by telling him that his dog was very sick and needed to be put down, when that was not true. This caused Zoltan to run away to try to see the dog. The caseworker also claimed that Amy talked to Zoltan on the phone while he was at school in violation of the facility's rules. The caseworker suspected that Zoltan's recent disengagement from phone calls with his father was the result of Amy's calls. In the caseworker's opinion, Amy's and Jack's inability to co-parent had directly contributed to Zoltan's mental health issues, and neither parent had taken steps to address the problem as of the adjudication hearing.

         A mental health clinician testified about her experience supervising therapeutic visitation sessions between Zoltan and his parents. The clinician testified that, despite being asked by OCS not to discuss Zoltan's dog, Amy continued to discuss the dog during almost every visit. She testified that Amy once told Zoltan that, if he wanted, she would let him live with Jack. The clinician interpreted this as Amy trying to create a negative impression of Jack by implying that he does not respect what Zoltan wants. The clinician said that Amy struggled to take responsibility for her actions during their sessions together, instead focusing on things Jack had done wrong in the past. The clinician also said she heard Zoltan state that his father has a history of violence and that he knew this because Amy had told him. This statement was consistent with previous concerns that Amy had coached Zoltan to report abuse by his father.

         A psychiatric nurse who supervised a visit between Zoltan and his parents when he was in the hospital testified that he made accusations against his father based on incidents that happened before Zoltan was born. When Amy was questioned about these accusations, she said that she could not control whether Zoltan read "documents" she had in the house. The nurse was concerned that Amy was telling Zoltan information about his father that he should not have been told.

         A social worker OCS hired to write an expert report testified that she thought Amy and Zoltan had an "enmeshed relationship" and that Amy was alienating Zoltan from Jack. The expert report summarizes OCS's history with Zoltan dating back to 2009, Amy and Jack's custody case, and domestic violence protective order petitions Amy filed. The expert testified that protective services reports previously filed against Jack may have been "early signs" Amy was trying to alienate Zoltan from Jack. Her report states that there was evidence Amy may have coached Zoltan to report abuse by Jack. The expert testified that Amy's failure to comply with boundaries OCS set after assuming custody of Zoltan-by giving him gifts, having unauthorized phone calls, and sharing photos with him-set up an "unequal playing field" for Jack as the parent who complied with OCS's rules. The expert also testified that there was evidence Amy was encouraging Zoltan's negative feelings toward OCS.

         2. Amy's evidence

         Amy's therapist testified on her behalf. The therapist acknowledged that Amy had exhibited poor boundaries in her interactions with Zoltan in the past but said that Amy was making progress in therapy. The therapist testified that she had diagnosed Amy with adjustment disorder and major depressive disorder. The therapist gave conflicting answers when asked whether Amy could "safely parent" Zoltan. On direct examination the therapist testified that she thought Amy could safely parent Zoltan "[w]ith a little more parenting information and classes and practice." On cross-examination she clarified that "[a]s of today, I think [Amy] would be a safe parent" but that "I think [Amy] could be a better parent if she had more information as well."

         The superior court stated it was not giving Amy's therapist's testimony much weight for several reasons. The court was not convinced the therapist "ha[d] undertaken all of the steps that would be necessary to determine whether there [we]re any personality disorders at play." The court specifically asserted that the therapist had failed to conduct "paper and pencil testing, psychometric testing of [Amy] which is a standard part of the repertoire for comprehensive psychological evaluation." The court further noted that the therapist is not a clinical psychologist, may have a conflict as Amy's therapist, and gave equivocal answers when asked about Amy's ability to parent safely. The court also thought the therapist's opinion was "based on a limited amount of information," noting:

[T]he records that [the therapist] said she has reviewed did not include the very voluminous pleadings in the domestic relations case. I have been working with this family for 10 years. I don't claim to have the qualifications or the expertise of someone of [the therapist's] caliber, but I have a lot more factual information about this family than I suspect she does. And the legislature's told me to use that in House Bill 200.

         3. The court's findings

         The court issued oral findings at the close of the hearing. It concluded that Zoltan "is no doubt a child in need of aid [under subsection (8)] because of mental injury that has been caused both by the inability of the parents to co-parent and by [Amy's] ongoing hatred and acrimony with respect to [Jack] that she has passed on to her son." The court noted that "the primary problem that has created such significant mental health problems for [Zoltan] is [Amy's] current inability and past inability to acknowledge that both [Jack] and [Amy] have an important role to play in parenting [Zoltan]."

         The court pointed to two specific facts in support of its conclusions. First, it agreed with the conclusions contained in the expert's report, discussing in detail parental alienation and actions Amy had taken that could have resulted in such alienation. Second, the court also mentioned Amy's "porous boundaries," providing as an example the incident the mental health clinician recounted in which Amy told Zoltan that, if he wanted, she would let him live with Jack. The court referred to the comment as "a terrifying proposition" for Zoltan, because ...

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