Tuluksak Native Community v. State of Alaska, DHSS, OCS ( 2023 )

Notice: This opinion is subject to correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
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THE SUPREME COURT OF THE STATE OF ALASKA
TULUKSAK NATIVE COMMUNITY, )
) Supreme Court No. S-18377
Appellant, )
) Superior Court No. 4BE-21-00065 CN
v. )
) OPINION
STATE OF ALASKA, DEPARTMENT )
OF HEALTH AND SOCIAL ) No. 7660 – June 2, 2023
SERVICES, OFFICE OF )
CHILDREN’S SERVICES, and )
HANSON N., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Terrence Haas, Judge, and
William T. Montgomery, Judge pro tem.
Appearances: David A. Case, 49th State Law, LLC,
Soldotna, for Appellant. David A. Wilkinson, Assistant
Attorney General, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for Appellee State of Alaska. Olena
Kalytiak Davis, Anchorage, for Appellee Hanson N.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
HENDERSON, Justice.
INTRODUCTION
After the Office of Children’s Services (OCS) removed an Alaska Native
child from his mother and placed him with a relative, the child experienced suicidal
ideation and checked himself into a psychiatric facility. Following a period of
seemingly voluntary care, OCS requested a hearing under AS 47.10.087 (.087) to place
the child at an out-of-state secure residential psychiatric treatment facility.
The child’s Tribe intervened and challenged the constitutionality of .087,
the manner in which evidence was received, and alleged due process violations. The
child joined in some of these objections. The superior court ordered the child placed at
a secure residential psychiatric treatment facility per .087. The Tribe, but not the child,
appealed the placement decision, contending primarily that the superior court erred in
proceeding under .087 and in making its substantive findings, and plainly erred in
authorizing placement pursuant to .087 without addressing the Indian Child Welfare
Act’s (ICWA) placement preferences.
We see no error in the court’s application of .087 or its substantive
findings, and we thus affirm the superior court’s placement determination. We note
with concern that the court failed to make required inquiries and findings related to
ICWA’s placement preferences. However, this did not amount to plain error. We do
not reach the Tribe’s other arguments as the Tribe has either waived them or lacks
standing to raise them.
FACTS AND PROCEEDINGS
A. Facts
In August 2021 OCS filed an emergency petition for temporary custody
of Hanson N.1 Hanson was at that time a 15-year-old boy from Tuluksak. Hanson’s
father had died in December 2020, and OCS removed Hanson from his mother’s care
the day before filing the petition. A few weeks later Hanson’s mother stipulated that
1
A pseudonym is used to protect Hanson’s privacy.
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there was probable cause Hanson was a child in need of aid and that he should be
removed from the home. The court entered a temporary custody order that affirmed the
probable cause finding, identified that Hanson may be an Indian child,2 and confirmed
that he had been placed with an extended family member. Hanson’s Tribe, Tuluksak
Native Community (Tribe), intervened in October.
In early December Hanson, then living in Anchorage, voluntarily went to
an emergency room and was routed to North Star Behavioral Hospital without any
involvement of OCS or the court.3 According to later testimony from a North Star
employee, Hanson had had some sort of incident, became upset, took a rope and tied it
around his neck, and then sought professional medical help.
On December 22 OCS filed a request for a hearing under .087.4 The
request indicated that Hanson was currently at North Star and would likely be there for
more than 30 days. It also asserted that a review hearing should be conducted “within
30 days of his admission (by January 5, 2022).” OCS took this action apparently in
compliance with a 2015 statewide injunction by a different superior court judge in a
separate case. That injunction, which is not part of the record before us, purportedly
2
ICWA defines an “Indian child” as “any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian
tribe.” 25 U.S.C. § 1903(4). The definition of “Indian tribe,” in turn, includes “any
Alaska Native village as defined in section 1602(c) of Title 43.” Id. § 1903(8).
3
The record is unclear whether Hanson’s mother or grandmother consented
to him being checked into North Star. It is also unclear exactly how Hanson arrived at
North Star. It is clear, however, that OCS was not involved with Hanson’s original
intake to North Star and only found out about it later.
4
AS 47.10.087 allows a court to authorize OCS to place a child in its
custody into a “secure residential psychiatric treatment center” if certain statutory
mental health related conditions are met. AS 47.10.087(a). The statute also requires
judicial review of an initial placement under subsection (a) at least once every 90 days.
AS 47.10.087(b).
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requires a hearing or judicial finding within 30 days of admission to North Star for any
child in OCS custody.
B. Proceedings
1. Initial .087 hearing
On January 6, 2022, the court convened to address the .087 hearing
request. The judge assigned to the case was unavailable, so a different judge presided
over the hearing. It is unclear whether Hanson had been notified of the hearing. Hanson
was not present nor was any attorney on his behalf.
Earlier that day the Tribe had filed a response to OCS’s request for an .087
hearing. The response questioned whether .087 applied in light of Hanson’s apparently
voluntary admission to North Star. It also requested counsel be appointed for Hanson,
and requested discovery. OCS recommended that the court make findings and then
address the Tribe’s response later. The Tribe then requested a continuance to obtain
discovery. OCS countered that discovery would be difficult because many of Hanson’s
records could not be discovered unless Hanson waived his psychotherapist-patient
privilege.
The court heard further arguments about whether to proceed. The parties
disagreed about whether North Star could continue to hold Hanson for more than 30
days, what would happen if the court did not hold some sort of .087 hearing, and
whether “provisional findings” were appropriate. Over the objection of the Tribe, the
court indicated that it would proceed by making provisional findings that could later be
“contested in a more full-blown hearing,” that it was “not going into a long full dive
into the placement of .087,” that it planned to grant the Tribe’s request for a
continuance, and that the purpose of that day’s proceedings was to hold “a hearing
within the first 30 days to at least ensure that the child’s placement at North Star is
appropriate.” The court appointed an attorney for Hanson and allowed OCS’s witness,
Mark Sabo, to testify. Sabo was one of Hanson’s treatment providers at North Star.
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After the court qualified Sabo without objection as a mental health
professional, it heard his testimony regarding Hanson’s condition. At the close of
Sabo’s testimony, OCS requested authorization to place Hanson at North Star for “a
period exceeding 30 days.” OCS contended that there was “clear, convincing evidence
that [Hanson was] suffering from a mental illness and as a result, [was] likely to cause
serious harm to himself.” The Tribe objected to OCS’s proposed findings and argued
that there was “no evidence produced that [Hanson] couldn’t be treated someplace else
that was less restrictive.” The Tribe further objected to Sabo’s testimony regarding
Hanson’s mental health diagnoses and to Hanson’s lack of representation at the hearing.
The court then made oral findings that Hanson was diagnosed with and
suffering from major depressive disorder and that as a result he was likely to harm or
kill himself,5 that there was “no reasonably available, appropriate or less-restrictive
alternative” for treatment,6 and that Hanson needed “round-the-clock monitoring.” The
court further found that Hanson was suffering from suicidal ideation and that his
condition could be improved by the course of treatment at North Star.7 After the Tribe
questioned the nature of the findings, the court stated that the findings were “not
provisional” but that it was “only authorizing this for a limited time.”
5
AS 47.10.087(a)(1) requires a finding that “the child is gravely disabled
or is suffering from mental illness and, as a result, is likely to cause serious harm to the
child or to another person.”
6
AS 47.10.087(a)(2) requires a finding that “there is no reasonably
available, appropriate, and less restrictive alternative for the child’s treatment.”
7
AS 47.10.087(a)(3) requires a finding that “there is reason to believe that
the child’s mental condition could be improved by the course of treatment or would
deteriorate if untreated.”
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The court then scheduled the next hearing as “another .087 hearing” in
front of the assigned judge. The court also directed discovery be produced five days
prior to that hearing.
2. Continued .087 hearing
The next relevant hearing occurred on January 28 in front of the assigned
judge.8 Hanson was not present, and due to an agency administrative mistake he still
did not have an appointed attorney. He had therefore not yet waived his
psychotherapist-patient privilege and only non-privileged discovery had been sent out.
The Tribe again raised objections to the applicability of .087, to relying
on the January 6 findings because of due process concerns, to OCS’s witnesses
testifying about unproduced materials, and to any out-of-state placement for Hanson.
The Tribe also raised an equal protection argument, but the court declined to rule on
any constitutional question without “substantially more briefing.” The Tribe did not
file any additional briefing about the constitutionality of .087. The court did not make
any decisions regarding the Tribe’s other objections. Ultimately, the court decided it
could not proceed without Hanson or his attorney present.
3. Second continued hearing
The next hearing was held on February 2. By this point, OCS had
confirmed that it would seek an out-of-state placement for Hanson. Counsel for Hanson
appeared at this hearing but informed the court that he had only been assigned the day
before, had not spoken to Hanson, and was not ready to proceed. He requested a
8
There was also a hearing on January 10 during which Hanson’s attorney
still had not been assigned and Hanson’s mother stipulated that there was clear and
convincing evidence that Hanson was a child in need of aid under AS 47.10.011(9)
(declaring child in need of aid due to neglect) and to removal findings. In order to
remove an Indian child from the parents a court must find removal necessary to prevent
imminent harm to the child or that being left in the custody of the parents would likely
result in serious emotional or physical damage. CINA Rule 10(c)(3); 25 U.S.C. §
1912(e).
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continuance. He stated that Hanson’s position was that he did not wish to be moved
out of state, did not wish to waive his psychotherapist-patient privilege, joined the
Tribe’s due process objections, and objected to allowing OCS’s witness to testify
without discovery.
The court continued the hearing for a brief period, and indicated that it
would require expedited discovery and conduct an in-camera review of materials that
might be privileged. The court left the initial .087 findings in place and ordered that
Hanson not be transported out of state prior to the next hearing.
4. Final .087 hearing
The parties reconvened on February 17. Present at this hearing were
Hanson and his attorney, OCS, the Tribe, Hanson’s mother and her attorney, and Sabo.
The hearing began with a discussion of discovery and the psychotherapist-
patient privilege, which Hanson had waived the day before. Some records had been
produced that day, and the court acknowledged that it had not followed its self-imposed
timeline for in-camera review and any further release of discovery. The Tribe noted
that recent treatment plans had not yet been disclosed.
The Tribe objected to Sabo testifying about any of the information not
produced and requested that such information be precluded, that OCS be required to
produce the actual authors of the records to appear for cross-examination, or that the
matter be continued. OCS opposed a continuance because Hanson had been accepted
at a facility and could be transferred there immediately but for the court’s order keeping
him at North Star. The court denied the Tribe’s alternative requests for preclusion or
to require particular psychologists or psychiatrists to testify. After further discussion,
the Tribe withdrew its request for a continuance so long as it could “guess what is in
the documents that [it does not] have” and as “long as [it is] not ambushed by somebody
saying . . . something different.” The court ultimately proceeded with the hearing
“subject to the Tribe’s ability to meet the evidence presented here.”
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OCS then moved to incorporate Sabo’s testimony from the January 6
hearing. The court did not clearly indicate whether it was incorporating that testimony,
but noted that it had listened to that hearing. The court proceeded throughout the
hearing as if it were making initial findings under .087(a).
Sabo testified about Hanson’s diagnosis and treatment. He began by
testifying about information contained in a neuropsychological evaluation report
prepared by Dr. Paul Craig, North Star’s in-house neuropsychologist. This report
indicated that Hanson had been diagnosed with major depressive disorder without
psychosis, unspecified neuro-cognitive disorder, unspecified intellectual disability,
attention deficit hyperactivity disorder, persistent depressive disorder, intermittent
explosive disorder, alcohol use disorder, cannabis use disorder, inhalant use disorder,
and generalized anxiety disorder. Of those diagnoses, the alcohol, cannabis, and
inhalant use disorders were “reportedly in remission.” The report also indicated that
Hanson’s “IQ” was below the first percentile. Sabo also reiterated his understanding of
the circumstances of Hanson’s arrival at North Star, including that Hanson had put a
rope around his neck and reported having suicidal ideation. He verified that Hanson
had made “several suicidal statements” while at North Star. He also testified about a
recent incident when Hanson had gotten upset and punched the gym floor, injuring his
hand. Sabo further reported other “incidents . . . where he’s made threats to staff, threats
to peers” and one incident when Hanson destroyed the toilet in his room. Sabo testified
that Hanson was likely to cause serious harm to himself and others “without structure
and monitoring” due to his mental illness.
Sabo then testified about Hanson’s treatment regimen, which included
individual therapy, group process therapy, art and recreation therapy, school, and
psychiatric treatment several times a week. Sabo indicated that he saw Hanson about
once a week, but had occasionally seen him multiple times a week.
Before Sabo could continue talking about Hanson’s treatment plan, the
Tribe objected. The Tribe argued that Sabo could not testify about the treatment plan
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because “this is the core of the material that . . . w[as] not produced.” The parties then
discussed who had this treatment plan and why it had not been discovered. No party
had a copy of the actual treatment plan that Sabo was referencing.
After additional discussion the court suggested, and the Tribe agreed to, a
short delay. The Tribe also confirmed that it did not “want to continue [this hearing]
24 hours.” The court determined that the most important thing was “[t]hat the
information that [Sabo] is testifying to be available to the parties in order for them to
be able to meet that evidence.” The court thus ordered Sabo to describe the contents of
his file so the parties could decide what records should be produced. Sabo complied.
With the parties’ agreement, the court ordered North Star to promptly produce specific
additional documents.
In the meantime, OCS called nurse consultant John Luchansky to testify
about Hanson’s proposed placement. Luchansky testified that North Star recommended
residential treatment for Hanson, and that OCS was following this recommendation.
He went on to describe how OCS and North Star seek residential treatment placements
for minors. He then testified, over the Tribe’s hearsay objection, about letters OCS had
received from several facilities both in Alaska and out of state. In total, North Star had
applied to nine facilities. Hanson’s application had been denied at seven and accepted
at two. Each of the seven facilities that denied Hanson’s admission had done so because
it could not provide the type or level of care Hanson required. Hanson had been
accepted at facilities in Texas and Utah. During this process the Tribe again objected
on hearsay grounds, and the court responded that the rules of evidence are not “strictly
applied” at this type of hearing.
Luchansky indicated that OCS does not search for all facilities that may
be available to a youth nationwide, but relies on the Department of Behavioral Health’s
list of placement facilities that are active Alaska Medicaid providers. He indicated that
OCS does not specifically track any general effectiveness statistics for the facilities. He
also generally described the benefits of residential treatment centers for minors like
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Hanson, including how OCS might measure the effectiveness of the treatment through
treatment plans, documentation, family contact, and weekly OCS contact to check on
progress. He conceded that he was not aware of any tribally affiliated out-of-state
facilities, and that he was unaware that the Indian Health Service maintained any list of
tribally affiliated behavioral health services available nationwide.
After Luchansky’s testimony, and as additional discovery continued to
arrive in response to the court’s order, the court allowed Sabo to continue testifying.
Sabo testified that without medication and treatment Hanson was likely to commit
suicide or assault his peers, and that his condition would deteriorate without care. He
testified that he had no reason to disagree with the neuropsychological report that
evaluated Hanson’s risk of suicide, self-harm, accidental injury, and elopement as
moderate, risk of assault as moderate to high, and risk of substance abuse relapse as
high. He also testified that North Star was not an appropriate place for Hanson’s long-
term care, but that a residential program similar to the two that had accepted him would
improve his condition. Sabo then described the type of structure and support that
Hanson needed and the possible benefits of a residential program. Sabo also confirmed
that when seeking out-of-state treatment facilities, North Star only considers those
facilities that accept Alaska Medicaid. None of the reports that Sabo relied on to form
his opinions were introduced into evidence, and some of them had either not been
produced yet or had been produced during the hearing.
At the conclusion of the evidence, the parties made closing arguments and
the court made oral findings on the record. The court found that it had credible direct
testimony from a mental health professional that Hanson was currently suffering from
a mental illness. The court also found that there were no reasonably available,
appropriate, and less restrictive alternatives for Hanson’s treatment. It noted that North
Star was not an appropriate long-term placement for Hanson, that numerous attempts
had been made to find and apply to long-term placements for Hanson, and that he had
been denied admission to many of those programs. Finally, the court found that
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Hanson’s mental condition would benefit from a course of treatment at a residential
facility. It observed that it did not know a great deal about the treatment available at
the places Hanson had been accepted, and that obtaining an objective measure of
effectiveness would likely be difficult. Nevertheless, the court found that OCS had
“barely” met its burden regarding subsections 2 and 3 of .087. The court then went on
to limit the out-of-state placement by requiring a review hearing at least every thirty
days and requiring an OCS caseworker to visit Hanson at the out-of-state facility upon
placement there. The court later restated its oral findings in a written order.
5. Appeal
The Tribe’s appeal raises three primary points: (1) that the court erred by
allowing placement of Hanson at a secure residential treatment facility without
sufficient evidence, or based upon inadmissible evidence, and without making
appropriate findings under ICWA or .087; (2) that the court erred by applying the wrong
burden of proof; and (3) that .087 is unconstitutional as applied to this case.
STANDARD OF REVIEW
We review the superior court’s findings of fact for clear error.9 “Findings
of fact are clearly erroneous if a review of the entire record in the light most favorable
to the prevailing party below leaves [us] with a definite and firm conviction that a
mistake has been made.”10 We review de novo whether those findings satisfy the
requirements of the Child in Need of Aid (CINA) statutes and rules, and those of
9
Sam M. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 442
P.3d 731, 736 (Alaska 2019).
10
Id. (alteration in original) (quoting Philip J. v. State, Dep’t of Health &
Soc. Servs., Off. of Child.’s Servs., 314 P.3d 518, 526-27 (Alaska 2013)).
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ICWA.11 “Rulings on discovery . . . are generally reviewed for abuse of discretion.”12
Decisions to admit witness13 or expert witness testimony are similarly reviewed for
abuse of discretion.14 Issues not preserved in the superior court are reviewed for plain
error.15 Plain error requires an “obvious mistake” that is “obviously prejudicial.”16
Questions of statutory interpretation and constitutional law are reviewed de novo, and
we will adopt the rule of law that is most persuasive in light of precedent, reason, and
policy.17
DISCUSSION
We affirm the superior court’s decision allowing placement of Hanson at
a secure residential treatment facility. First, the Tribe has identified no reason the court
should not have proceeded under .087, which allows OCS to place a minor in its custody
at a facility of the type at issue. Next, because an .087 hearing is a type of CINA
placement hearing, the court properly allowed certain hearsay and mental health
testimony, and did not abuse its discretion in managing discovery. Further, the court
made sufficient findings related to each of the .087 statutory factors. And under the
circumstances, the court did not plainly err in failing to consider ICWA’s placement
preferences. Finally, the Tribe’s constitutional arguments are unavailing. We address
each of these points in turn.
11
Id.12
Lindbo v. Colaska, Inc., 414 P.3d 646, 650 (Alaska 2018).
13
Id.14
Demetria H. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.,
433 P.3d 1064, 1070 (Alaska 2018).
15
In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019).
16
In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014).
17
Kiva O. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 408
P.3d 1181, 1185 (Alaska 2018).
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A. The Superior Court Did Not Err By Proceeding Under AS 47.10.087.
As it did to the superior court, the Tribe argues to us that .087 does not
apply to Hanson’s placement, and that the matter is instead controlled by Alaska’s
voluntary mental health commitment statutes in light of Hanson’s initial voluntary
admission to a hospital. The Tribe contends that our recent decision in In re
Hospitalization of April S. requires as much.18
We disagree. While it appears that Hanson’s admission to North Star was
initially voluntary, it does not follow that OCS, as Hanson’s legal custodian, must
proceed under the voluntary or involuntary commitment statutory framework. Nothing
in April S. requires the court to have proceeded differently in this matter. In April S. a
minor in OCS custody was hospitalized for a mental health evaluation.19 A series of
delays resulted in her remaining hospitalized for close to 30 days without a hearing. At
the subsequent 30-day commitment hearing, OCS argued and the superior court held
that the first 30 days of her commitment were “voluntary” under AS 47.30.690.20 We
reversed and explained that the first 30 days of the minor’s commitment were not, in
fact, “voluntary” because OCS was not a “parent or guardian” as statutorily defined in
AS 47.30.690.21 We further held that OCS cannot voluntarily commit minors in its
care.22 Instead, OCS could either file a petition for involuntary commitment under
AS 47.30.700 or seek placement in a secure residential treatment facility under .087.23
18
499 P.3d 1011 (Alaska 2021).
19
Id. at 1013-14.
20
Id. AS 47.30.690 allows a minor to be admitted for 30 days of mental
health treatment at a “designated treatment facility” if a “parent or guardian” signs the
admission papers. AS 47.30.690(a).
21
In re April S., 499 P.3d at 1019-20.
22
Id.
23
Id. at 1020 & n.53.
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Our holding in April S. prevents OCS from bypassing the findings
required under either .087 or AS 47.30.700-.730 by claiming that a minor has been
“voluntarily” committed under AS 47.30.690. As applied to Hanson’s case, April S.
confirms that OCS was within its purview to request an .087 hearing to place Hanson
in a secure residential psychiatric treatment facility.
B. The Superior Court Did Not Err In Its Ultimate Handling Of The .087
Hearing.
1. Because a hearing under .087 is a type of CINA placement
hearing, it was not error to allow certain hearsay evidence.
An .087 hearing is fundamentally a CINA placement hearing. It is the
legal mechanism by which OCS places a child in its custody at a residential psychiatric
treatment facility for long-term mental health care.24
When analyzing the process and rules that apply to .087 proceedings, we
keep in mind that the CINA rules are generally constructed around a legislative intent
to prioritize children’s best interests.25 This includes rules that sometimes favor
informal hearings and prioritize efficiency. Among the Legislature’s goals are those of
expeditiously providing children with permanent homes and facilitating attachment
between children and their caregivers.26 For children needing intensive mental health
services, it is important that OCS be able to efficiently place those children at facilities
that provide appropriate levels of care.27
24
AS 47.10.087(c).
25
See AS 47.10.005; State, Dep’t of Health & Soc. Servs., Off. of Child.’s
Servs. v. Michelle P., 411 P.3d 576, 582-83 (Alaska 2018).
26
AS 47.06.030(4)-(5); see also AS 47.10.005.
27
OCS is charged with a “duty to protect, nurture, train, and discipline the
child” as well as a duty of “providing . . . food, shelter, education, and medical care.”
AS 47.10.084(a). Similarly, we have previously held that OCS has a “compelling
interest . . . in providing adequate medical care” to a child in its custody. Kiva O. v.
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Here, the Tribe contends that most, if not all, of the evidence presented by
OCS at Hanson’s .087 hearing consisted of improper hearsay statements or “conduit”
evidence presented by Sabo. Without this evidence, the Tribe contends, there was
insufficient evidence to support .087 findings. The Tribe primarily relies upon the
premise that “the Rules of Evidence apply at all hearings, with enumerated exceptions,”
and contends that .087 hearings are not amongst the exceptions.
The superior court correctly rejected this argument given that an .087
hearing is best situated as a placement hearing.28 While the Tribe correctly points out
that .087 hearings are similar in several respects to commitment hearings,29 these
placement hearings implicate fundamental CINA considerations that allow for and at
times require less formal procedures. The focus of the .087 hearing on placement, and
the dispositional nature of the hearing, support less stringent hearsay standards
consistent with CINA Rule 17. We therefore conclude that hearsay may be admissible
in .087 proceedings as long as it is probative of a material fact, has circumstantial
guarantees of trustworthiness, and the appearing parties are given a fair opportunity to
meet it.30
State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs., 408 P.3d 1181, 1188
(Alaska 2018).
28
An .087 hearing could appropriately fit under CINA Rule 10.1 “Out-of-
Home Placement – Required Findings.” See CINA Rule 10.1. An .087 hearing could
also be characterized as a “disposition hearing” under CINA Rule 17. See CINA Rule
17(a) (defining the purpose of the hearing “to determine the appropriate disposition of
a child who has been adjudicated a child in need of aid”). The distinction is not
important regarding hearsay because hearsay is admissible at either.
29
Notably, .087’s provisions for the findings that must be made in order to
place a minor at a secure residential treatment facility are quite similar to the elements
that must be addressed under the statutory framework governing involuntary mental
health commitments. See, e.g., AS 47.30.700, .730, .735, .755.
30
See CINA Rule 10(b)(3), 17(e).
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2. The superior court did not err or abuse its discretion by
admitting the testimony of the mental health professional.
The Tribe further contends that our decision in Cora G. v. State,
Department of Health & Social Services, Office of Children’s Services prohibits the
mental health professional in this case from testifying about the opinions or diagnoses
of other mental health professionals.31 The Tribe contends that the “thrust of Cora G.
is that any statute requiring the testimony of a[n] expert witness requires that expert to
actually testify to the conclusions they themselves arrived at, rather than what other
potentially qualified people stated in documents.”
But our decision in Cora G. does not support as broad an argument. In
Cora G. we held that OCS must affirmatively qualify an expert witness to address
whether a child sustained “mental injury” due to his parents’ conduct, because the
applicable statute required such expert testimony.32 The term “mental injury” is
statutorily defined as “a serious injury to the child as evidenced by an observable and
substantial impairment . . . and . . . is supported by the opinion of a qualified expert
witness.”33 In Cora G. we specifically interpreted the term “qualified expert witness”
to require OCS to “lay a foundation at trial to qualify a proposed witness and offer that
witness as an expert for the specific issue in question.”34 The specific issue there was
the existence of “mental injury” as required by AS 47.10.011(8).35 While that witness
could rely on information normally relied on by experts in that field, the witness’s
31
461 P.3d 1265 (Alaska 2020).
32
Id. at 1275, 1284.
33
AS 47.17.290(10) (emphasis added).
34
Cora G., 461 P.3d at 1284.
35
Id. at 1285 (“[I]n this limited context of a judge-tried CINA matter, it is
legal error for a trial court not to expressly qualify an expert witness to testify about a
child’s mental injury under AS 47.10.011(8)(A) and AS 47.17.290(10).”).
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opinion on the existence of mental injury had to be the witness’s own, and offered via
that witness’s testimony.36 We rejected OCS’s attempt to establish mental injury by
having a therapist who had not been qualified as an expert testify about the opinion of
a non-testifying neuropsychologist.37
The statutory requirement at issue in Cora G. is not present in this case.38
Indeed, section .087 requires only that the court’s finding be “based on the testimony
of a mental health professional.”39 No party in this matter contested Sabo’s
qualification to testify as a mental health professional.40 As such, Sabo was able to
reference the diagnoses and opinions of other professionals in conveying information
and opinions about whether Hanson met the criteria for placement in a secure residential
facility.41
This is not to say that any witness may testify as a “conduit” for any other
mental health professional’s opinion by simply reading that opinion into the record.
36
Id. at 1284-85.
37
Id. at 1285-87.
38
We also note that, unlike in this case, Cora G. involved a proceeding in
which hearsay was inadmissible for the question at issue. See id. 1273-74. This further
underscores Cora G.’s limited application to Hanson’s hearing.
39
AS 47.10.087(a).
40
AS 47.10.990(21) (defining “mental health professional” as per
AS 47.30.915(16), which includes licensed psychiatrists or physicians, clinical
psychologists, trained and licensed psychological associates, licensed professional
counselors, and licensed clinical social workers, among others).
41
Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1217
(Alaska 1991) (“Rule 703 explicitly allows an expert to rely on otherwise inadmissible
evidence, so long as the material is of a type reasonably relied on by experts in the
field.”). This includes hearsay and “information from other case workers.” Id. (first
citing Norris v. Gatts, 738 P.2d 344, 349 (Alaska 1987); and then citing In re J.R.B.,
715 P.2d 1170, 1174 (Alaska 1986)).
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The court as the trier of fact can reject such testimony if it is not sufficiently informed
or credible enough to be meaningful, or if the opposing party lacks the opportunity to
meet the proffered evidence through cross-examination or other means. But Hanson’s
case does not present a situation in which the testifying mental health professional
lacked any independent knowledge of Hanson’s condition and treatment and was
simply reading from others’ treatment notes and opinions. Sabo was part of Hanson’s
treatment team, and his provision of treatment was naturally informed by others’
diagnoses, observations, and statements. Sabo used those opinions and diagnoses to
fashion his own treatment of Hanson, as well as to inform his opinion.42 The court did
not err by allowing and relying on Sabo’s testimony.
3. We see no abuse of discretion in the court’s management of
discovery.
The Tribe also contends that insufficient discovery prior to the .087
hearings violated both Hanson’s and its own due process rights. The Tribe raised
multiple discovery objections during the various hearings, but did not substantively
argue the issue in its opening brief, relying primarily on a one-sentence argument that
“Alaska’s conception of ‘due process’ contemplates discovery” at an .087 hearing.
We have previously held that “[a] fair and meaningful hearing does entail
adequate access to information requested in discovery.”43 This includes the discovery
of expert reports to “eliminate surprise at trial, and . . . for full and effective cross-
42
Id.; Alaska R. Evid. 703. We also note that much, if not all, of the
objected-to hearsay here would have been admissible under the hearsay exception for
statements made for purposes of medical diagnosis or treatment. Alaska R. Evid.
803(4).
43
Rollins v. State, Dep’t of Revenue, Alcoholic Beverage Control Bd., 991
P.2d 202, 211 (Alaska 1999).
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examination of opponents’ expert witnesses.”44 Regardless of whether in the criminal
or civil context, however, the normal remedy for a discovery violation is a
continuance.45 Exclusion of crucial evidence due to a discovery violation is not
appropriate unless the violation was “willful.”46 Ideally, all parties should possess all
relevant information prior to litigating the questions posed under .087; however, we
recognize that rapidly evolving situations may present obstacles to that ideal.
The superior court went to great lengths to ensure that the Tribe had
enough discovery to, at a minimum, “meet” the testimony of Sabo. This included
continuing the January 28 and February 2 hearings, entering various orders for
expedited discovery, engaging in extensive discussion about discovery and the
application of the psychotherapist-patient privilege, and delaying the February 17
hearing to wait for additional discovery. Ultimately, the court decided that the most
important thing was “[t]hat the information that [Sabo] is testifying to be available to
the parties in order for them to be able to meet that evidence.” To facilitate this, the
court had Sabo describe in detail the entire medical record he was referring to during
his testimony and ordered North Star to immediately produce additional documentation
directly to the court.
The Tribe raises the lack of discovery primarily as a violation of Hanson’s
due process rights, but does not explain how it may assert standing to raise a
constitutional due process argument on Hanson’s behalf. We address this point more
fully later in this opinion. The Tribe has not argued that the discovery issues violated
its own due process rights, beyond stating that its inability to effectively cross-examine
44
Sec. Indus., Inc. v. Fickus, 439 P.2d 172, 180 (Alaska 1968).
45
Bostic v. State, 805 P.2d 344, 348 (Alaska 1991); Russell v. Mun. of
Anchorage, 626 P.2d 586, 591 (Alaska 1981) (“It is well established that even an
unintentional violation of Criminal Rule 16 normally entitles the defendant to a
continuance.”).
46
Harris v. State, 195 P.3d 161, 174 (Alaska 2008).
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a witness constituted a due process violation. But the record shows that at the January
6 and February 17 hearings the Tribe vigorously and effectively cross-examined Sabo.
The Tribe also does not explain how the partial discovery of Hanson’s North Star
records rendered it unable to “meet” Sabo’s testimony or otherwise resulted in prejudice
to the Tribe, particularly when the court announced that it would be revisiting the
appropriateness of Hanson’s placement at frequent intervals in further hearings.
In this instance, the appropriate remedy for the lack of full discovery
would have been a brief continuance. The Tribe initially requested a continuance
during the February 17 hearing to wait for additional treatment records. OCS opposed
this request, and after further discussion the Tribe indicated that it could proceed with
the disclosures that had been made as long as it was not surprised by testimony relating
to materials that had not been disclosed. The court denied a continuance at that point,
“subject to the Tribe’s ability to meet the evidence presented.” After still further
discussion of discovery, the court proposed a short delay in an attempt to get some of
the missing treatment records from North Star. The Tribe then withdrew its request for
a continuance by stating that it did not “want to continue [the matter] 24 hours.” The
Tribe did not renew its request for a continuance after the court proposed the plan to
obtain treatment records from North Star.
Given the court’s numerous efforts to ensure that the parties were able to
effectively meet Sabo’s testimony, the lack of specific argument in the briefing about
how partial discovery rendered any party unable to meet OCS’s evidence, and the
Tribe’s withdrawal of its request for a further continuance during the February 17
hearing, we see no error requiring reversal or vacatur of the court’s .087 findings.
Rather, the record shows the superior court did its best to try to move discovery forward
while balancing the need to litigate under a strict timeframe.
4. The superior court applied the correct burden of proof.
The Tribe argues that the superior court erred because it applied the wrong
burden of proof. In particular, the Tribe argues that because the court found OCS had
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“barely” met its burden as to some elements, the court must have used a “preponderance
of the evidence” standard.
Section .087 does not specifically provide the applicable standard of
proof, and the court did not explicitly say what standard it was applying in making its
February 17 findings.47 However, the nature of an .087 hearing, including its
similarities to an involuntary mental commitment hearing, persuade us that a clear and
convincing evidentiary standard is constitutionally appropriate and adequate.
In involuntary mental health commitment hearings, Alaska law requires
the court to find by clear and convincing evidence that the respondent is mentally ill
and as a result likely to cause harm to the respondent or others. 48 We note that the
language of .087 closely tracks the language of the involuntary commitment statutes.
Moreover, each statutory framework provides for placement in, or involuntary
commitment to, a type of psychiatric treatment facility, significantly impacting the
involved individual’s liberty interests.
In the context of mental commitments, the United States Supreme Court
has held that the preponderance of evidence standard does not meet the demands of due
process and is therefore inadequate for civil commitment proceedings.49 It has further
held that any standard must “inform the factfinder that the proof must be greater than
the preponderance . . . standard.”50 The Court proceeded to hold that a standard of
“clear, unequivocal and convincing” was “constitutionally adequate” and that use of the
term “unequivocal” was not constitutionally mandated.51 The Court did not dictate a
47
AS 47.10.087 (providing no standard of proof for findings).
48
AS 47.30.735.
49
Addington v. Texas, 441 U.S. 418, 432-33 (1979).
50
Id.51
Id.-21- 7660
set standard, however, and left the “determination of the precise burden equal to or
greater than the ‘clear and convincing’ standard” to be made as a “matter of state law.”52
Regarding involuntary psychiatric care for minors, the United States
Supreme Court has held that there must be an inquiry by a neutral factfinder “to
determine whether the statutory requirements for admission are satisfied.”53 And some
state courts have interpreted this inquiry to require evidence to a clear and convincing
standard.54 Some states also have a clear and convincing evidentiary standard written
into their version of Alaska’s .087 statute.55
52
Id. at 433.
53
Parham v. J.R., 442 U.S. 584, 606 (1979).
54
See, e.g., J.W. v. J.W., 890 So. 2d 337, 340 (Fla. Dist. App. 2004) (holding
that proper standard of proof to commit dependent child to residential mental health
treatment facility is clear and convincing evidence); In re Commitment of N.N., 679
A.2d 1174, 1187 (N.J. 1996) (holding that involuntary commitment of minor under 14
requires showing by clear and convincing evidence of factors similar to AS 47.10.087);
In re S.R., 253 A.3d 907, 907, 913-16 (Vt. 2021) (interpreting Vermont statute similar
to AS 47.10.087 as requiring “best interests” finding that requires “substantial
evidence”); In re F.C. III, 2 A.3d 1201, 1219-20 (Pa. 2010) (holding that formal
adversarial proceeding pursuant to clear and convincing standard was necessary to
commit minor to involuntary drug treatment); In re Monique H., No. 1 CA-JV 10-0005,
2010 WL 3057097, at *2 (Ariz. App. Aug. 5, 2010) (stating in non-precedential opinion
that juvenile court must make findings to clear and convincing standard to send juvenile
to residential treatment for mental health needs).
55
See, e.g., Ariz. Rev. Stat. § 8-273(F) (requiring clear and convincing
evidence to send minor to residential treatment services); N.M. Stat. § 32A-6A-22(K)
(requiring clear and convincing evidence to place minor in residential treatment); Ga.
Code Ann. §§ 15-11-656(d), (g)(1) (requiring clear and convincing evidence to detain
minor in secure or nonsecure residential treatment facility); Idaho R. Juv. Rule 54(h)
(requiring courts to determine by clear and convincing evidence factors similar to
AS 47.10.087 before ordering in-patient or residential treatment for minor).
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While authority instructs that minors’ rights are not always coextensive
with those of adults,56 we see no reason to apply a lesser standard of proof in the context
of .087. Placing a child at a secure psychiatric facility implicates protected liberty
interests to such a degree that a lesser standard would not be appropriate. To protect
these interests and harmonize .087 with the requirements of commitment hearings,
while also balancing CINA considerations, we hold that .087 findings must be made by
clear and convincing evidence.
Here, all parties seem to agree that the clear and convincing standard is
correct, and no party suggested or argued otherwise before the superior court. OCS
explicitly referenced a clear and convincing standard at the initial January 6 hearing.
The Tribe also referenced a clear and convincing standard when asked whether it had
any objections to the court making the requested findings. No party argued about the
standard of proof during the February 17 hearing. The Tribe asserts that because the
court described the evidence as “barely” meeting the unstated standard, the court must
have “believed that the appropriate standard of proof was ‘preponderance of the
evidence.’ ” But this does not logically follow. The court’s statement that OCS
“barely” met the standard could apply to any standard of proof. We therefore reject the
argument that the court’s use of the word “barely” indicated use of a preponderance
standard.
56
See, e.g., Treacy v. Mun. of Anchorage, 91 P.3d 252, 265 n.60 (Alaska
2004) (noting that United States Supreme Court has “held that the rights of minors are
not always coextensive with those of adults”); Nunez ex rel. Nunez v. City of San Diego,
114 F.3d 935, 945 (9th Cir. 1997) (holding that “minors’ rights are not coextensive with
the rights of adults because the state has a greater range of interests that justify the
infringement”).
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We normally assume that the superior court has applied the correct
standard and that it does not need to explicitly state the standard if there is no dispute.57
During the hearings at issue no party disputed the burden of proof. On January 6 all of
the parties explicitly proceeded under a clear and convincing standard. There is no
indication that anyone thought or suggested differently at the February 17 hearing, and
we presume that the court, having reviewed the January 6 proceedings, applied the same
undisputed burden of proof. Moreover, as discussed below, because the evidence meets
a clear and convincing standard we decline to reverse or vacate findings based solely
on the court’s failure to state the standard.
C. The Court’s .087 Findings Were Sufficient.
The Tribe’s primary contention in challenging the sufficiency of the
superior court’s .087 findings is that the court relied upon inadmissible hearsay, and
without this hearsay there was no evidence to make .087 findings. As discussed above,
the court did not err or abuse its discretion by admitting Sabo’s testimony. We therefore
consider Sabo’s complete testimony in deciding whether the court’s .087 findings were
sufficiently supported by evidence.58
57
Wasser & Winters Co. v. Ritchie Bros. Auctioneers (Am.), Inc., 185 P.3d
73, 83 (Alaska 2008).
58
We do not consider Sabo’s testimony at the January 6 hearing. The Tribe
argues that Hanson’s procedural due process rights were violated at the January 6
hearing after the court made .087 findings without Hanson or his attorney present.
Hanson also briefly mentions that the January 6 hearing was procedurally flawed.
However, the Tribe concedes that at the February 17 hearing the court proceeded under
AS 47.10.087(a) and did not rely on the previous findings or evidence to make its
February 17 findings. We proceed accordingly.
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1. There was clear and convincing evidence that Hanson was
suffering from mental illness and likely to cause serious harm
to himself or others.
The first part of subsection .087(a) requires a finding that “the child is
gravely disabled or is suffering from mental illness and, as a result, is likely to cause
serious harm to the child or to another person.”59 The Tribe, with Hanson joining,
contends that the court did not have sufficient evidence to make this finding.
Sabo testified as a mental health professional that Hanson had been
diagnosed with major depressive disorder without psychosis, unspecified
neurocognitive disorder, unspecified intellectual disability, attention deficit
hyperactivity disorder, persistent depressive disorder, intermittent explosive disorder,
alcohol use disorder, cannabis use disorder, inhalant use disorder, and generalized
anxiety disorder. By the February 17 hearing, Hanson’s alcohol, cannabis, and inhalant
use disorders were reportedly in remission. Sabo further indicated that he was meeting
with Hanson sometimes multiple times a week for therapy. He said that the treatment
team (including himself) would normally review psychological notes and evaluations
about twice a week to assist with treatment. Sabo further testified that Hanson was
assessed as being at a moderate risk of suicide, moderate risk of self-harm, moderate to
high risk of assault, high risk of substance abuse relapse, and moderate risk of
elopement. Those risk factors were corroborated by behaviors Sabo either personally
observed or learned from the treatment team.
Sabo recounted recent and specific instances in which Hanson consumed
hand sanitizer, became quickly angry and punched the gym floor, and destroyed the
toilet in his room. He also noted an incident when Hanson assaulted one of his peers.
These incidents supported his general assertion that Hanson could become “emotionally
59
AS 47.10.087(a)(1).
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dysregulated very quickly” and could get “very angry and aggressive” over relatively
minor situations.
Sabo also testified specifically about Hanson’s behaviors indicating a risk
of self-harm. This included making “quite a few statements” that “he wanted to die,
and kill himself.” Hanson originally arrived at North Star after putting a rope around
his neck and expressing suicidal thoughts. Sabo also told the court that for a time
Hanson was on “one-to-one, where they have a staff with him at all times” and that
Hanson was not allowed to sleep alone due to self-harm concerns. Sabo reiterated that
Hanson was likely to cause serious harm to himself and others “without structure and
monitoring, a lot of monitoring.”
Considered as a whole, Sabo’s testimony adequately supports the court’s
finding that Hanson was suffering from a mental illness and as a result was likely to
cause harm to himself or others.60
2. There was clear and convincing evidence that no reasonably
available, appropriate, and less restrictive treatment
alternative was available.
The second subsection of .087(a) requires a finding that “there is no
reasonably available, appropriate, and less restrictive alternative for the child’s
treatment.”61 The Tribe did not directly argue on appeal that the superior court’s
60
The Tribe briefly argues that the court clearly erred because its written
order suggested reliance on “medical records” in making this finding. The Tribe
correctly points out that no medical records were admitted into evidence and therefore
the court should not have relied on any records to support its findings. Again, however,
the court’s findings are sufficiently supported by Sabo’s testimony. Thus, any reference
to unadmitted medical records is harmless error. Amy S. v. State, Dep’t of Health &
Soc. Servs., Off. of Child.’s Servs., 440 P.3d 273, 279 (Alaska 2019) (We “disregard
harmless errors that have no substantial effect on the rights of parties or on the outcome
of the case.” (quoting Luther v. Lander, 373 P.3d 495, 499 (Alaska 2016))).
61
AS 47.10.087(a)(2).
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findings on this point were insufficiently supported. But to the extent the Tribe’s
argument about the burden of proof suggests such a challenge, we address it. We also
note that Hanson focuses on this point and argues that the court had insufficient
information about his treatment objectives and the treatment offered by the out-of-state
facilities in question to make a least restrictive finding.62
Although Hanson is correct that the evidence offered at the February 17
hearing did not include much information specific to the contemplated out-of-state
facilities, there was sufficient evidence presented regarding Hanson’s condition,
significant treatment needs, and the treatment that could be provided by a longer-term
residential facility like those in question to support the court’s least restrictive
alternative finding. Sabo testified that the treatment options available at North Star
were not appropriate for Hanson. He said that Hanson required constant monitoring
and a secure facility to prevent him from committing suicide, assaulting others, or
leaving. Sabo also explained that Hanson needed a treatment facility that had “correct
staffing for patients that may require . . . closer supervision” and “are set up for longer-
term therapies.” He testified regarding the components of Hanson’s treatment program
at North Star, noted various risk factors impacting Hanson, and opined that Hanson’s
risk of suicide, assault, and substance abuse relapse supported residential treatment.
Sabo noted that the two facilities that had accepted Hanson could provide services that
North Star could not, and that they were better “set up” for Hanson’s needs. This
testimony supports a finding that Hanson’s needs could not be met in a less restrictive
setting.
62
“Least restrictive alternative” as applicable to AS 47.10.087 is defined as
“mental health treatment facilities and conditions of treatment that (A) are no more
harsh, hazardous, or intrusive than necessary to achieve the treatment objectives of the
patient; and (B) involve no restrictions on physical movement nor supervised residence
or inpatient care except as reasonably necessary for the administration of treatment or
the protection of the patient or others from physical injury.” AS 47.30.915(14).
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Moreover, OCS presented testimony that North Star had applied to at least
seven other treatment facilities, and that each one had denied Hanson’s admittance for
various reasons related to Hanson needing a higher level of care than the facility could
provide. This, at a minimum, suggested that Hanson’s level of required care was not
generally available and that the options for providing such care were limited.
The superior court also considered that out-of-state placement may
present geographical restriction, opining that “the farther an Alaskan Native child is
from an Alaskan Native village, or from their state, or thousands of miles by flight from
the culture and people and environment to which they are accustomed, the more
restrictive it is.” We agree with the superior court’s observation that sending Alaska
Native children to far-flung treatment centers could be incredibly restrictive. It is for
this reason, and as further discussed below, that ICWA creates a special framework for
considering appropriate placement of Indian children, including a preference for
institutions approved by an Indian tribe or operated by an Indian organization.
In this instance, however, the court did not clearly err in finding that there
was no reasonably available, appropriate, and less restrictive alternative for treatment
for Hanson. Given Sabo’s testimony about Hanson’s significant treatment needs, North
Star’s inability to meet those needs, the relative ability of a longer-term residential
psychiatric facility to meet those needs, and the evidence that numerous less restrictive
and in-state facilities denied him admission because they could not meet his extensive
treatment needs, the court could permissibly conclude that there was no appropriate,
less restrictive treatment option available.
3. There was clear and convincing evidence that Hanson’s mental
condition could be improved with treatment or would
deteriorate without it.
The final subsection of .087(a) requires a finding that there is “reason to
believe that the child’s mental condition could be improved by the course of treatment
-28- 7660
or would deteriorate if untreated.”63 Both the Tribe and Hanson argue that the court did
not have sufficient evidence to make this finding.
In support of this factor, Sabo testified that without treatment he was
concerned that Hanson would kill himself or assault others. He testified that Hanson
had, in fact, already assaulted one of his peers. He also testified that Hanson would
benefit from a treatment program that included more structure, psychotropic drug
administration, closer supervision, support staff to help with Hanson’s cognitive
function levels, and the ability to provide long-term therapies. He did not think North
Star could not meet these treatment needs. Nor could the seven psychiatric treatment
facilities that did not accept Hanson. Sabo testified that Hanson’s mental condition
would deteriorate if left untreated, and that treatment at one of the two facilities that
accepted him would improve his condition. He also provided various details about why
those programs would benefit Hanson.
The Tribe and Hanson argue that because the court had no effectiveness
or outcome data from either of the facilities that accepted Hanson, the court could not
determine whether Hanson’s condition would improve by the course of treatment.
Similarly, they point to the lack of specific information about the facilities’ available
treatment modalities. But Sabo did offer unrebutted testimony generally about the type
of treatment that Hanson required and the type of facility that could benefit Hanson.
Sabo also confirmed that both the Texas and Utah facilities would be able to treat
Hanson. The court apparently credited this testimony.
Nothing in .087 requires the court to delve into specific statistics related
to particular facilities’ effectiveness or success rates. Instead, the statute’s breadth
allows a court to find that a secure residential treatment facility generally offers the type
63
AS 47.10.087(a)(3).
-29- 7660
of treatment that would benefit a particular minor. The testimony in this case supports
such a finding. We also point out that this subsection could be met by demonstrating
either that Hanson’s condition could be improved or that it would deteriorate if
untreated.64 Sabo offered clear and unambiguous testimony that without the proposed
treatment Hanson would either injure himself or assault another, and that his condition
would deteriorate. We see no clear error in the court’s finding on this element.
D. Section .087 Placement Hearings Involving Indian Children Implicate
ICWA, But The Court’s Failure To Apply ICWA Here Was Not Plain
Error.
The placement of Indian children is governed by ICWA.65 Section
1915(b) controls “foster care or preadoptive placement” criteria and preferences.66 It
states in relevant part:
Any child accepted for foster care or preadoptive placement
shall be placed in the least restrictive setting which most
approximates a family and in which his special needs, if any,
may be met. The child shall also be placed within reasonable
proximity to his or her home, taking into account any special
needs of the child. In any foster care or preadoptive
placement, a preference shall be given, in the absence of
good cause to the contrary, to a placement with—
64
AS 47.10.087(a)(3).
65
25 U.S.C. §§ 1901-1923.
66
Id. § 1915(b). Sections of this statute were recently held unconstitutional.
Brackeen v. Haaland, 994 F.3d 249, 267-68 (5th Cir. 2021) (en banc), cert. granted,
142 S.Ct. 1205 (2022). However, § 1915(b)(iv) was not considered in the context of
equal protection claims, and the district court’s ruling that § 1915(a)(3) and (b)(iii)
violate equal protection was affirmed “without a precedential opinion.” Id. At the time
of publication of this opinion, the United States Supreme Court had accepted certiorari
and heard oral argument in Brackeen, but has not issued an opinion regarding the
validity of § 1915. Brackeen, 142 S.Ct. 1205 (2022) (granting cert.). We therefore
proceed assuming its constitutionality.
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(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the
Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or
operated by an Indian organization which has a program
suitable to meet the Indian child’s needs.[67]
The text of ICWA clearly states that “in any foster care . . . placement”
the placement preferences must be followed.68 The definition of “foster care
placement” includes “any action” that removes a child from a parent for placement in
an “institution . . . where the parent . . . cannot have the child returned upon demand.”69
Similarly, § 1916(b) requires that whenever an “Indian child is removed from a foster
care home or institution for the purpose of further foster care . . . such placement shall
be in accordance with the provisions of this chapter.”70
An .087 hearing unquestionably implicates § 1915(b)’s placement
preferences because “placing” a child at a secure residential psychiatric facility falls
into the definition of a “foster care placement,” and § 1916(b) further confirms that
moving a child from one foster care placement to another implicates all applicable
provisions of ICWA.71
67
25 U.S.C. § 1915(b).
68
Id. (emphasis added).
69
Id. § 1903(1)(i) (emphasis added).
70
Id. § 1916(b).
71
Alaska’s CINA Rules also implicate ICWA. CINA Rule 10.1 requires
courts to “inquire into and determine . . . whether the Department has complied with
the placement requirements of 25 U.S.C. § 1915(b)” anytime the court is “authorizing
an Indian Child’s removal . . . or continuing a previous order authorizing removal.”
CINA Rule 10.1(b). Whether the court in this case was “authorizing removal” or
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We remind courts that when OCS is attempting to place an Indian child at
a secure residential psychiatric treatment facility under .087, ICWA placement
preferences apply. Courts must therefore inquire and make findings regarding the
placement preferences and any departure therefrom.72
1. No party raised an ICWA argument.
The Tribe argues on appeal that the superior court erred by not considering
ICWA placement preferences when it approved OCS’s request to transfer Hanson to an
out-of-state residential psychiatric treatment facility.73 But no party raised an ICWA
argument before the superior court. At best, the Tribe indirectly raised the placement
issue when questioning Luchansky. This brief line of questioning established only that
Luchansky did not know about a list of tribally affiliated health services maintained by
“continuing an order authorizing removal” when it made .087 findings is not clear. This
issue was not raised or briefed, and we do not address it here.
72
25 U.S.C. § 1915(b).
73
Hanson does not join this argument; rather, Hanson argues for the first
time in his appellee brief that additional removal findings, informed by the testimony
of an ICWA-qualified expert, were necessary before he could be sent to an out-of-state
facility. 25 U.S.C § 1912(e) provides that “no foster care placement may be
ordered . . . in the absence of a determination . . . that the continued custody of the child
by the parent . . . is likely to result in serious emotional or physical damage to the child.”
One reading of § 1912(e) would require additional removal findings at every change in
placement because “no placement” can be ordered without them. Another reading
would require removal findings only once, and then allow subsequent placement
changes in accord with ICWA’s placement preferences but without additional expert
witness testimony and removal findings. We declined to address this issue in April S.,
when the parties had agreed that § 1912(e)’s requirement for removal findings applied
and we assumed, without deciding, that that was the case. 467 P.3d 1091, 1096-97
(Alaska 2020). Given that no party raised this issue before the superior court, and
because the issue was not identified as a point on appeal and was raised only through
Hanson’s appellee brief, the argument and record related to this question are sparse and
we decline to further address it here.
-32- 7660
the Indian Health Service, and that OCS relied solely on a list of facilities participating
in Alaska Medicaid. Similarly, in closing argument the Tribe obliquely mentioned
placement preferences by arguing under .087(a)(2) that OCS had “decided that they’re
not going to send any Alaskan Native kids to lower 48 Native-run facilities who don’t
accept Alaska Medicaid.” This argument, however, was framed and characterized as a
“less restrictive alternative” argument under .087(a)(2), not as an ICWA placement
argument.
Hanson also obliquely referenced placement preferences during closing
argument. Specifically, he stated that for any out-of-state placement OCS must also
“exhaust the options for a Tribally-affiliated or managed care facility.” This argument
is inaccurate and was also made in the context of an .087(a)(2) “least restrictive
alternatives” argument.74
No party before the superior court directly raised ICWA, objected to the
placement on ICWA grounds, or contended that the court need to address whether there
was good cause to deviate from ICWA placement preferences. We therefore review for
plain error.75 Plain error requires an “obvious mistake” that is “obviously prejudicial.”76
2. The court’s failure to apply ICWA was not plain error.
It is clear that ICWA’s placement preferences apply to questions of
placement arising under .087. The court was required to inquire into and make findings
about those preferences and any deviation from them. The court did not, and not doing
so was an error.
74
OCS must not necessarily “exhaust the options for a Tribally-affiliated”
facility. Rather, OCS must show good cause for not sending a Native child to a tribally-
affiliated facility. 25 U.S.C. § 1915(b). Showing good cause is not the same as
exhausting all possible options.
75
In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019).
76
In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014).
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Notwithstanding this error, we do not find that Hanson or the Tribe was
obviously prejudiced by the court’s failure to inquire into or apply the ICWA placement
preferences. Because no party directly raised ICWA’s placement preferences with the
superior court, the record before us is sparse on details about whether in- or out-of-state
tribally run or tribally affiliated institutions are available to Hanson and able to meet his
needs. Moreover, the available evidence indicates that relatively few facilities exist,
tribally affiliated or not, that provide the level of care Hanson requires. And despite the
record lacking specifics on the existence (or not) of appropriate tribally run facilities, it
is not obvious to us that application of ICWA’s placement preferences would have
changed the outcome.
Like the superior court, we are greatly concerned when Native children
are sent to distant treatment facilities, far away from family, tribe, land, and customs.
However, the record in this case does not provide us with grounds to conclude that the
court’s failure to address ICWA’s placement preferences was obviously prejudicial.
Therefore, the court did not plainly err in making its .087 findings and approving
Hanson’s out-of-state placement without inquiring into ICWA’s placement preferences.
E. The Tribe’s Constitutional Arguments Fail.
The Tribe briefly asserts on appeal that the superior court’s application of
.087 unconstitutionally deprives some minors, such as Hanson, of equal protection
under the law, in that “some children get less protection than others.” The Tribe also
raises various due process objections, apparently attempting to do so on Hanson’s
behalf.
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1. The Tribe’s equal protection argument was waived.
We have held that arguments not properly raised below are waived.77 In
Eagle v. State, Department of Revenue, we declined to address an equal protection
argument because the appellant had only cursorily raised “difference in treatment” in
the superior court, and then only made two mentions of equal protection in appellate
briefs.78
Here, the Tribe briefly raised both facial and as-applied equal protection
challenges to .087 during the January 28 hearing. The court responded by informing
the Tribe that if it wanted to raise a constitutional challenge there would need to be
“substantially more briefing.” Later in the hearing, the court reiterated its position that
it would not rule on the constitutionality of .087 generally unless it was “raised through
further briefing” but that it would accept further argument on whether it applies
“specifically in this context.” The Tribe did not file any additional briefing about the
constitutionality of .087.
At the February 2 hearing, the Tribe abandoned any facial challenge to
.087 by stating “we’re not – the issue where we – the Court would have asked to make
up additional briefings would have been if we were making a facial challenge to .087,
which we’re not.” The court then decided that it was “not going to rule on the
constitutionality of the statute as written on those broad terms, saying, “I’m not willing
to find that the language of .087 is inapplicable . . . . And so, that leaves us with the
77
See, e.g., Eagle v. State, Dep’t of Revenue, 153 P.3d 976, 980-81 (Alaska
2007).
78
Id.; see also Rhodes v. Erion, 189 P.3d 1051, 1055 (Alaska 2008) (holding
equal protection argument waived); Reid v. Williams, 964 P.2d 453, 460 (Alaska 1998)
(same).
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April S. question only.”79 The Tribe did not file any additional briefing about the
constitutionality of .087, or make any additional constitutional argument during
subsequent hearings.
Even if this were sufficient to preserve an as-applied equal protection
argument for appeal, the Tribe failed to sufficiently brief the argument on appeal. In its
appellate briefs, the Tribe briefly argues that OCS has not sufficiently explained why
minors in OCS custody placed at a treatment facility get “less protection” than minors
that are “voluntarily committed.”80 The remainder of the argument quotes the three-
step process by which courts apply equal protection analysis, and then makes cursory
statements about the liberty interests involved and about OCS not showing that it has a
legitimate interest in providing one group of minors facing commitment with more
rights than another.
As OCS observes, equal protection arguments require a developed record
identifying the constitutional interests at stake, the strength of OCS’s purposes in the
statute, OCS’s interests in applying different procedures, and the “means-ends” fit. The
Tribe has not addressed any of these arguments. Similarly, the Tribe has failed to argue
whether children in and out of OCS custody are “similarly situated” as is required for a
79
We understand the “April S. question” to be a reference to the Tribe’s
argument that .087 is the incorrect procedural vehicle given the facts of this case, not
as an unconstitutional “as-applied” argument.
80
OCS does not bear the burden here, as the Tribe would be the party
challenging the constitutionality of the statute. State v. Planned Parenthood of the
Great N.W., 436 P.3d 984, 992 (Alaska 2019) (“A party raising a constitutional
challenge to a statute bears the burden of demonstrating the constitutional violation. A
presumption of constitutionality applies, and doubts are resolved in favor of
constitutionality.” (quoting State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska
2001))).
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successful equal protection argument.81 Because the Tribe’s equal protection argument
was questionably raised, and was inadequately briefed, we deem it waived.
2. The Tribe lacks standing to raise due process arguments on
Hanson’s behalf.
The Tribe’s remaining constitutional arguments point to violations of
Hanson’s due process rights, not the Tribe’s.82 We have held that litigants generally
lack standing to assert the constitutional rights of others.83 For example, in Keller v.
French we rejected the plaintiff’s citizen-taxpayer standing because there was “another
potential plaintiff more directly affected by the challenged conduct.” 84 And in R.J.M.
v. State we held that a father could not assert a violation of his children’s due process
rights where he “cite[d] no authority establishing his standing to assert violations of the
children’s constitutional rights,” and made “no persuasive showing of potential
prejudice to himself, and the record reveal[ed] none.”85
81
State v. Schmidt, 323 P.3d 647, 660 (Alaska 2014) (“Plaintiffs who assert
equal protection violations ‘must demonstrate that the challenged law treats similarly
situated persons differently.’ ” (quoting Alaska Civ. Liberties Union v. State, 122 P.3d
781, 787 (Alaska 2005))).
82
Hanson also asserts violations of his due process rights. Many of
Hanson’s arguments are addressed in our decision of the various points appealed by the
Tribe. We note again, however, that Hanson did not appeal the superior court’s findings
or orders in this case. To the extent that Hanson, as an appellee, raises points or
challenges that are distinct from points raised by the Tribe in its appeal, they are not
properly before us for decision.
83
Keller v. French, 205 P.3d 299, 304 (Alaska 2009).
84
Id. at 302-04.
85
946 P.2d 855, 871 (Alaska 1997), superseded by statute on other grounds,
ch. 99, §§ 1, 18, SLA 1998, as recognized in Jerry B. v. Sally B., 377 P.3d 916, 925
n.24 (Alaska 2016).
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This case is similar. The Tribe makes no argument that it has standing to
raise due process violations on behalf of Hanson. Nor has it made any showing of how
or why violations of Hanson’s constitutional rights would implicate its own
constitutional rights. Additionally, Hanson was a party to this case and had the
opportunity to bring his own due process appeal. He did not. While we have previously
held that in some circumstances Tribes have standing to bring parens patriae claims on
behalf of their children,86 the Tribe here has not briefed or argued that it has standing
on these grounds in this situation. Having no argument before us that would establish
the Tribe’s standing, we decline to address the due process arguments raised by the
Tribe on behalf of Hanson.
CONCLUSION
For the foregoing reasons, we AFFIRM the superior court’s findings and
orders under AS 47.10.087.
86
State, Dep’t of Health & Soc. Servs., Div. of Fam. & Youth Servs. v. Native
Vill. of Curyung, 151 P.3d 388, 399-402 (Alaska 2006).
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