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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dennis O. v. Stephanie O. (3/17/2017) sp-7161

Dennis O. v. Stephanie O. (3/17/2017) sp-7161

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

DENNIS  O.,                                                          )  

                                                                     )      Supreme  Court  No.  S-15802  

                                Appellant,                           )  


                                                                     )      Superior Court No. 3PA-09-01278 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


STEPHANIE O.,                                                        )  


                                                                     )     No. 7161 - March 17, 2017  

                                Appellee.                            )  




                          peal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Palmer, Gregory Heath, Judge.  


                      Appearances:               Dennis   O.,   pro   se,   Palmer,   Appellant.  


                      Stephanie O., pro se, Big Lake, Appellee.   Nikole Nelson,  


                      James J. Davis, Jr., Hollis Handler, and Sydney Tarzwell,  


                      Anchorage,  for  Amicus  Curiae  Alaska  Legal  Services  


                      Corporation.   Christine M. Pate, Sitka, for Amicus Curiae  


                      Alaska Network on Domestic Violence and Sexual Assault.  


                      Gregory  P.  Razo,  Anchorage,  for  Amicus  Curiae  Alaska  


                     Native  Justice  Center.                 Mark  W.  Regan,  Anchorage,  for  


                      Amicus  Curiae  The  Disability  Law  Center  of  Alaska.  


                      Thomas          M.      Daniel,        Perkins         Coie       LLP,       Anchorage,  


                      Theodore A. Howard, Wiley Rein LLP, Washington, D.C.,  


                      and Paulette Brown, American Bar Association, Chicago,  


                      Illinois,  for  Amicus  Curiae  American  Bar  Association.  


                      Brooke  Berens,  Assistant  Public  Advocate,  Chad  Holt,  


                      DeputyDirector,andRichard Allen, Director, Anchorage,for  


                      Amicus Curiae Office of Public Advocacy.  

----------------------- Page 2-----------------------

                      Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and                                   

                      Bolger, Justices.   

                      WINFREE, Justice.   


                      A father requested court-appointed counsel in a child custody modification  


proceeding after learning that the mother had hired a private attorney.  The court denied  


the request.  The father - supported in part by several amici curiae - claims that the  


denial violated his due process and equal protection rights under theAlaska Constitution.  


We disagree:  We decline to expand our prior decisions by mandating court-appointed  


counsel for every indigent parent in a child custody proceeding when the opposing  


parent is represented by private counsel, and we conclude that on the facts of this case  


the father's constitutional rights were not violated by the denial of court-appointed  





                      Dennis and Stephanie O. divorced in 2011 and were awarded joint legal  


custody of their four children.1                       They shared physical custody of their three younger  


children, and Stephanie was granted primary physical custody of their oldest daughter.  


                      In January 2014 Stephanie moved to modify the original custody order,  


seeking sole legal and primary physical custody of all four children.   In an affidavit  


supporting the motion Stephanie alleged that in 2013 Dennis had sexually assaulted her  


and  later  trespassed  in  her  home.                         Those  allegations  were  the  principal  basis  of  


Stephanie's  claim  of  a  substantial  change  of  circumstances  warranting  a  custody  


modification,  and  they  also  had  been  the  basis  of  a  long-term  domestic  violence  




                      We use an initial in lieu of the parties' last name to protect the family's  


                                                                     -2-                                                                   7161  

----------------------- Page 3-----------------------

protective order granted two months earlier. The superior court judge presiding over the                                                                        


divorce proceeding referred the matter to a family court master.                                                             

                          Although Stephanie initiated the proceedings while self-represented, she  


secured  an  attorney  for  the limited  purpose of representing her  during  the custody  


modification hearing before the master.  In response Dennis requested that the master  



appoint him counsel for the hearing, citing our decisions in Flores v. Flores,  In re  


             4  and Reynolds v. Kimmons5  and quoting Alaska Administrative Rule 12(e).6                                                                        He  


argued that those authorities supported appointing him counsel based on his indigence  


and the risk of losing custody of his children, and he expressed specific concern about  


the risk of self-incrimination due to Stephanie's criminal allegations against him.  


                          At the hearing and in a separate written order the master denied Dennis's  


motion for appointment of counsel.  The master noted at the hearing that he was not  


aware "of any authority that mandates that the [c]ourt appoints counsel for all indigent  


parents  in  all  custody  cases."                             When  Dennis  later  expressed  frustration  about  that  


decision during the hearing, the master responded:  


             2            See  Alaska R. Civ. P. 53(b) (allowing referral of issues to special masters).                                             



                          598 P.2d 893, 895-96 (Alaska 1979) (holding that due process requires  

appointment of counsel to every indigent parent in custody case when state agency                                                                       


represents opposing parent).  

             4            813 P.2d 276, 282 n.7 (Alaska 1991) (holding that due process requires  


appointment  of  counsel  to  every  indigent  parent  defending  against  parental  rights  



             5            569  P.2d  799,  803  (Alaska  1977)  (holding  that  due  process  requires  


appointment of counsel to every indigent parent in paternity suit prosecuted by state).  


             6            Alaska Admin. R. 12(e)(1) ("If the court determines that counsel . . . is  


required by law or rule, the court shall appoint an attorney . . . .").  


                                                                                -3-                                                                         7161

----------------------- Page 4-----------------------

                                                                               [F]rankly, if I thought that the [L]egislature and the                                                                                                                                           

                                                     Supreme Court had the intent and ability to provide legal                                                                                                                                                           

                                                    counsel for you right now, I would order it in a heartbeat. . . .                                                                                                                                                                 

                                                    But there simply is not the authority for it.                                                                                                                

                                                                               . . . .  

                                                                              I think it's very clear that I'm not authorized to do that.                                                                                                                                                      

                                                    During the hearing Dennis cited cases and statutes supporting his various                                                                                                                                                                                       

legalpositions,and                                                        heimpeachedStephanie's                                                                               credibility. Butthehearing                                                                               involved some  

complex   legal   issues,   and   the   master   observed   that   Dennis   occasionally   became  

frustrated at not having the assistance of an attorney. The master accommodated Dennis                                                                                                                                                                                                                               

by structuring the proceedings to make them easier for him, frequently explaining legal                                                                                                                                                                                                                                       

issues, and even requiring Stephanie's attorney to warn Dennis when he was in danger                                                                                                                                                                                                                                  

of opening the door to cross examination about the criminal accusations.                                                                                                                                                                                                                      

                                                    In a November 2014 Report and Order the master determined there was a                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                             7        The master  

 substantial change in circumstances warranting modification of custody.                                                                                                                                                                                                                                              

found by a preponderance of the evidence that Dennis had sexually assaulted Stephanie  


in August 2013, committed criminal trespass after hiding in Stephanie's garage and  


refusing to leave in September 2013, and violated the domestic violence protective order  


in September 2013.  The master's sexual assault and trespass findings were based on  


 Stephanie's  testimony  about  the  incidents.                                                                                                                                          Because  Dennis  separately  had  been  


criminally convicted of violating the protective order, the master determined collateral  


estoppel applied to that incident.  


                                                    The  master  also  found  that  "Dennis  presented  compelling,  credible  


testimony" regarding two instances of domestic violence Stephanie had committed in  


                          7                         See  Alaska R. Civ. P. 53(d)(1) ("The master shall prepare a report upon the                                                                                                                                                                                                      

matters submitted to the master by the order of reference and, if required to make                                                                                                                                                                                                                                        

findings of fact and conclusions of law, the master shall set them forth in the report.").                                                                                                                                                                                                                   

                                                                                                                                                                   -4-                                                                                                                                                        7161

----------------------- Page 5-----------------------

 1993 and 2003.                         Because both parents had committed multiple incidents of domestic                                                                        

violence, the master applied AS 25.24.150(i) and found Stephanie "far less likely to                                                                                                             

                                                                                                  8   That, in addition to the seriousness of the  

continue to perpetrate domestic violence."                                                                                                                                                     

sexual assault, led the master to recommend awarding Stephanie sole legal and primary  


physical custody of the children.  Finally, the master recommended awarding Dennis  


supervised visitation twice per week and unsupervised visitation upon completion of a  


batterers' intervention program and a parenting education program,9  despite Dennis's  


statements rejecting visitation absent some form of custody.  


                               The superior court adopted the master's recommendations and awarded  


Stephanie primary physical and sole legal custody of the children.10  Dennis appeals only  


the denial of his motion to appoint counsel to represent him at the hearing.  Both Dennis  


and Stephanie represent themselves on appeal, and we have accepted three amicus briefs  


from:   (1) jointly Alaska Legal Services Corporation, Alaska Native Justice Center,  


Alaska Network on Domestic Violence and Sexual Assault, and The Disability Law  


Center of Alaska (collectively Agency amici); (2) the Office of Public Advocacy (OPA);  


and (3) the American Bar Association (ABA).  


                               Dennis makes two arguments on appeal:  (1) that the denial of appointed  


counsel violated his due process rights under the Alaska Constitution and (2) that the  


               8              AS 25.24.150(i) provides that "[i]f the court finds that both parents have                                                                                   

a history of perpetrating domestic violence"                                                       the court           may "award sole legal and physical                           

custody to the parent who is less likely to continue to perpetrate the violence and require                                                                                           

that the custodial parent complete a treatment program."                                                  

               9              See AS 25.24.150(j) (permitting "only supervised visitation by [a] parent"  


who has a history of domestic violence, "conditioned on that parent's . . . successfully  


completing an intervention program for batterers, and a parenting education program").  


               10              Because  the  oldest  daughter  by  then  had  turned  18,  the  modification  


involved only the three younger children.  


                                                                                                -5-                                                                                       7161

----------------------- Page 6-----------------------

statutory   mandate   to   appoint   counsel   to   an   indigent   parent   if   the   other   parent   is  

represented   by   a   state   agency   but   not   by   private   counsel   violates  the   Alaska  

                                                                  11  Agency amici and the ABA also argue that the  

Constitution's equal protection clause.                                                                                                         

Alaska Constitution's due process clause requires court-appointed counsel for every  


indigent parent when the other parent in a custody case has hired private counsel.  




                       We  review  constitutional  questions,  including  due  process  and  equal  


protection, de novo,12  


                                      and we "will adopt the rule of law that is most persuasive in light  



of precedent, reason, and policy." 

IV.         DISCUSSION  


                       We conclude that due process does not mandate court-appointed counsel  


for all indigent parents in Dennis's situation and that neither due process nor equal  



protection requires reversal of the decision not to appoint Dennis counsel. 

            11         We assume that Dennis is indigent for purposes of this appeal.                                               



                       del Rosario v. Clare, 378 P.3d 380, 383 (Alaska 2016) (citing Grimmett v.  

 Univ. of Alaska           , 303 P.3d 482, 487 (Alaska 2013)) (due process);                                    Pub. Emps.' Ret. Sys.          


v. Gallant, 153 P.3d 346, 349 (Alaska 2007) (citing Alaska Civil Liberties Union v. State ,  


 122 P.3d 781, 785 (Alaska 2005)) (equal protection).  Although we have previously  

stated   that   the   decision   to   appoint   counsel   in   a   civil   case   is   a   procedural   decision  


reviewed  for  an  abuse  of  discretion,  the  constitutional  nature  of  these  due  process  


decisions  makes  de  novo  review  the  appropriate  standard.                                                     Cf.  Richardson  v.  


Municipality of Anchorage, 360 P.3d 79, 84 (Alaska 2015); Barber v. Schmidt, 354 P.3d  


 158, 160 (Alaska 2015); Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270, 272  


(Alaska 2002); Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1109 (Alaska  


            13         Jerry B. v. Sally B., 377 P.3d 916, 924-25 (Alaska 2016) (quoting Garibay  


v. State, Dep't of Admin., Div. of Motor Vehicles, 341 P.3d 446, 448 (Alaska 2014)).  


            14         Although             the       superior           court         adopted            the       master's           custody  



                                                                        -6-                                                                 7161

----------------------- Page 7-----------------------

            A.          Due Process Does Not Require Appointment Of Counsel.                                         

                        "The crux of due process is [having the] opportunity to be heard and the                                                      

                                                                               15  That right stems directly fromthe Alaska  

right to adequately represent one's interests."                                                                                                

Constitution, which states that "[n]o person shall be deprived of life, liberty, or property,  


without due process of law."16                           "A valid constitutional challenge based on due process  


requires  'state  action  and  the  deprivation  of  an  individual  interest  of  sufficient  


importance to warrant constitutional protection.' "17  


                        Due process under the Alaska Constitution is "flexible, and the concept  


should be applied in a manner which is appropriate in the terms of the nature of the  


            14          (...continued)  


recommendations,  neither  the  master's  report  nor  the  superior  court's  final  order  


mentioned Dennis's request for appointed counsel or the master's denial of that request.  


Neither party objected to the master's findings.  See Alaska R. Civ. P. 53(d)(2) ("Within  


 10 days after being served with notice of the filing of the report any party may serve  


written objections . . . .").  Because the issue has not been raised we express no opinion  


whether the superior court should have addressed the master's denial of Dennis's motion  


to appoint counsel.  Cf. Alaska R. Civ. P. 53(b) ("[T]he master has and shall exercise the  


power to regulate all proceedings in every hearing before the master and to do all acts  


and take all measures necessary or proper for the efficient performance of the master's  


duties . . . .").   Any error would be harmless in light of our de novo review of the  


master's decision.  

            15          In re K.L.J., 813 P.2d 276, 279 (Alaska 1991) (quoting Matanuska Maid,  


Inc. v. State, 620 P.2d 182, 192 (Alaska 1980)).  


            16          Alaska Const. art. I,  7.  


            17          Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986) (quoting Nichols v.  


Eckert, 504 P.2d 1359, 1362 (Alaska 1973)); see also In re K.L.J., 813 P.2d at 283  


(holding minimal state involvement - where private adoption was "state mechanism,"  


and where state issued new birth certificate, maintained records, and enforced adoption  


decree - was sufficient to trigger due process where indigent, disabled father faced  


termination of his parental rights).  


                                                                           -7-                                                                    7161

----------------------- Page 8-----------------------


proceeding."               To determine what process is due, we have adopted the three-factor                                 

Mathews  balancing test:                 19  

                       [1] the private interest affected by the official action; [2] the  


                       risk of an erroneous deprivation of such interest through the  


                       procedures used and the probable value, if any, of additional  


                       or  substitute  procedural  safeguards;  and  .  .  .  [3]  the  


                       government's interest, including the fiscal and administrative  


                       burdens that additional or substitute procedural requirements  


                       would entail.[20]  


                       We have held  that due process requires appointment of counsel to  an  


indigent parent if the proceeding could lead to a criminal charge or the deprivation of  


liberty.21        We also have extended that due process right to three specific classes of  


indigent parents.  


                       First, in Flores v. Flores  we held that indigent parents in private child  


custody proceedings whose opponents were represented by a state agency were, as a  


           18         In re K.L.J.        , 813 P.2d at 278 (quoting                 Otton v. Zaborac             , 525 P.2d 537, 539         

(Alaska 1974)).   

           19         Id. at 279 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).  


           20         Id.  (quoting Keyes  v.  Humana  Hosp. Alaska,  Inc.,  750  P.2d  343,  353  


(Alaska 1988)).  


           21          See Reynolds v. Kimmons, 569 P.2d 799, 801-02 (Alaska 1977) (holding  


that due process required appointed counsel in paternity suit prosecuted by state, in part  


because "an indirect outcome of this suit could be a criminal charge"); Otton, 525 P.2d  


at 539 (holding that due process required appointed counsel in contempt proceeding for  


nonsupport  because  "[t]he  potential  deprivation  of  liberty  in  nonsupport  contempt  


proceedings is as serious a matter as the restraint of liberty possible in criminal, juvenile,  


and criminal contempt proceedings").  


                                                                       -8-                                                               7161

----------------------- Page 9-----------------------


class, entitled to appointed counsel.                                            That case involved a parent represented by Alaska                                             

Legal Services Corporation and a parent living in California who was unable to travel                                                 

                                                             23    We held that the indigent parent's private interest, "the  

to Alaska due to indigence.                                                                                                                                                         

                                                                                                                        24   Further, the risk of erroneous  

right to direct the upbringing of one's child," was high.                                                                                                               


deprivation of that parent's interest was grave due to the unfairness of having a state  


agency representing the other parent.25  We noted that "[a]lthough the legal issues in a  


given  case  may  not  be  complex,"  custody  determinations  are  difficult  due  to  their  


"emotional nature."26                             We determined that due process demanded the appointment of  


counsel for  all parents in that situation, but the facts of that case were particularly  


compelling.27   Unable to travel to Alaska, the indigent parent would have defaulted and  


effectively lost all parental rights.28  


                             Second,  in  V.F.  v.  State  we  determined  that  due  process  required  


appointment  of  counsel  for  indigent  parents,  as  a  class,  in  Child  in  Need  of  Aid  


               22            598 P.2d 893, 895-96 (Alaska 1979).



                             Id. at 894 & n.4.



                             Id. at 895.

               25            Id.  at 895-96.   



                             Id. at 896.  

               27            Id.  



                             Id. at 895 n.8, 896.  

                                                                                           -9-                                                                                    7161

----------------------- Page 10-----------------------


proceedings brought by the state to terminate parental rights.                                              We noted that a parent's          

private interest was even higher in a termination case than in a custody proceeding.                                                            30  

                       Finally, we extended that latter holding to nonconsensual private adoptions  




- when a parent's parental rights are terminated to allow the adoption to proceed                                                                 



in  In  re  K.L.J .               We  stated  that  the  private  interest  of  the  indigent  parent,  with  


termination of parental rights at stake, was "of the highest magnitude."33                                                        The state's  


interests in the children and in "an accurate and just decision" outweighed its "legitimate  


interest in avoiding the cost of appointed counsel and its consequent lengthening of  


judicial procedures."34                  The benefits of an attorney would have been significant in that  



case.        It involved "complex legal questions"; the superior court made an important legal  


 error; the indigent parent failed at effectively presenting evidence, cross examining  


witnesses, and testifying; the indigent parent's physical disability made communication  


with the court very difficult; and indigency prevented him from appearing in person.36  


We  recognized  a  right  to  counsel  for  all  indigent  parents  "defending  against  the  


            29         666  P.2d  42,  45  (Alaska   1983).  

            30         Id.  

            31         See  AS  25.23.130(a)  ("A  final  decree  of  adoption  .  .  .  terminate[s]  all  legal  

relationships  between  the  adopted  person  and  the  natural  parents  .  .  .  .");  AS  25.23.050  

(permitting  adoption  in  certain  cases  without  parent's  consent).   

            32          813 P.2d 276, 283-84 (Alaska 1991).  


            33         Id. at 279.  


            34         Id. at 280.  


            35         Id. at 280-81.  


            36         Id. at 281-82.  


                                                                        -10-                                                                 7161

----------------------- Page 11-----------------------

termination of their parental rights," even though the facts of that case were "compelling                                            

enough by themselves to indicate a violation" of due process.                                                  37  


                        1.          Due process for parents as a class  


                        With the foregoing cases in mind, we first examine the assertion by Agency  


amici and the ABA that due process requires the appointment of counsel for every  


indigent parent in a custody case when the opposing parent is represented by private  




                        The private interests of parents in these custody cases are weighty, but they  


do not rise to the level considered in the parental rights termination cases.  We observe  


that "[t]he right to the care and custody of one's own child is a fundamental right  



                                                                                                     and that it "clearly falls within  

recognized by both the federal and state constitutions" 




the protections of the due process clause and should be accorded significant weight." 


But custody hearings do not threaten termination of parental rights.  We recognized in  


 V.F. that "a proceeding for the termination of parental rights affects a parent's right to  


direct the upbringing of . . . [a] child even more than does a private child custody  

                       40  And as we noted in In re K.L.J., the risk of termination creates an interest  


            37          Id.  at 282 nn.6-7 (emphasis omitted).             



                        J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001) (citing In re K.L.J., 813  


P.2d at 279).  

            39          Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


Servs., 71 P.3d 811, 831 (Alaska 2003); see also Flores v. Flores, 598 P.2d 893, 895  


(Alaska 1979) (holding in custody case that "[t]he interest at stake . . . is one of the most  


basic of all civil liberties, the right to direct the upbringing of one's child").  


            40          666 P.2d 42, 45 (Alaska 1983).  


                                                                          -11-                                                                     7161

----------------------- Page 12-----------------------


"of the highest magnitude."                                                                           Although custody is a significant private interest, it does                                                                                                                         

not reach that magnitude.                        

                                              Similarly, the risk of erroneous deprivation of these parents' rights is less                                                                                                                                                                  

 significant than in those cases requiring appointed counsel. We readily acknowledge the                                                                                                                                                                                                        

challenges of self-representation in custody cases; such cases are difficult and emotional.                                                                                                                                                                                                                 

We stated in                                Flores :  

                                               [T]he crucial determination of what will be best for the child                                                                                                                              

                                              can be an exceedingly difficult one as it requires a delicate                                                                                                                  

                                              process                          of            balancing                               many                      complex                              and                competing  

                                              considerations that are unique to every case.                                                                                                               A parent who                       

                                              is without the aid of counsel in marshalling and presenting                                                                                                              

                                               [favorable] arguments . . . will be at a decided and frequently                                                                                                           

                                              decisive disadvantage which becomes even more apparent                                                                                                                         

                                              when one considers the emotional nature of child custody                                                                                                                          

                                              disputes, and the fact that all of the principals are likely to be                                                                                                                                    


Many parents involved in custody disputes surely have felt the same way at the close of  


a difficult hearing.  


                                              We are not blind to the advantages that a parent represented by any counsel  


- private or public - has over a self-represented parent.  But that advantage does not  


necessarily violate a self-represented parent's due process rights.  In Flores we stated  


that "[t]his disadvantage is constitutionally impermissible where the other parent has an  


attorney  supplied  by  a  public  agency."43                                                                                                                       If  one  parent  enjoys  the  benefit  of  


representation by a state agency, we held that "[f]airness alone dictates that the [other  


                       41                     813 P.2d at 279.                         

                       42                     598 P.2d at 896.                         

                       43                     Id.  

                                                                                                                                              -12-                                                                                                                                       7161

----------------------- Page 13-----------------------


parent] should be entitled to a similar advantage."                                              If one parent is represented by                     

private   counsel,   however,   that  advantage   does   not   raise   the   same   "constitutionally  


impermissible" fairness concerns.                                 


                        Procedural safeguards, including the Family Law Self-Help Center and  


informal resolution programs, also reduce the risk of erroneous deprivation for these  


parents.         The  court may appoint a custody investigator, a guardian ad litem, or an  

                                   46   And judges have experience providing procedural assistance to  


attorney for a child. 

self-represented parties.  Because these cases do not involve the inherent unfairness of  


a state agency representing one parent, and because of the ways that the judicial system  


assists self-represented parents in custody cases, the probable value of court-appointed  


counsel here is lower than in cases where we have mandated court-appointed counsel.  


                        Finally, in any due process case involving families the government has  


multiple important interests at stake.  "First and foremost, the state has an interest in the  


                  47   On one hand appointment of counsel can lead to more "accurate and just  


                                                                                            48  On the other hand, to the extent  

results," and therefore better outcomes for children.                                                                                    


that  appointment  of  counsel  causes  increased  conflict  between  parents  and  the  


"lengthening of judicial procedures," the state's interest in the children weighs against  


appointment.49   Additionally "the state undoubtedly has a legitimate interest in avoiding  


            44         Id.  at 895.   

            45         Id.  at 896.   

            46          See AS 25.24.310; Alaska R. Civ. P. 90.6; Alaska R. Civ. P. 90.7.  


            47         In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).  


            48         Id.  at 280 (quoting              Lassiter v. Dep't of Soc. Servs.                     , 452 U.S. 18, 28 (1981)).           

            49         Id.  

                                                                         -13-                                                                    7161

----------------------- Page 14-----------------------


the cost of appointed counsel,"                              and - based on OPA's experience as statutory                                            Flores  



                  - mandating appointment of counsel to this class of parents could potentially  


cost several million dollars annually. Although the state's and parents' interests partially  


coincide, the "fiscal and administrative burdens" here are significant enough that the  



government interest weighs against appointing counsel to this class of parents. 

                           On  balance  self-represented  indigent  parents  facing  opposing  parents  


represented by private counsel are not, as a class, deprived of due process rights solely  


because they do not have counsel.   The private interest at stake - custody of one's  


children - supports appointment of counsel.53   But unlike termination cases the interest  


here  is  not  "of  the  highest  magnitude."54                                     And  although  counsel  could  protect  the  


interests of indigent parents, the risk of erroneous deprivation does not categorically  


                                                            55     Finally, the substantial potential cost to the state  

reach an unconstitutional level.                                                                                                                         


outweighs the benefit of appointing counsel to all such parents.  


             50          Id.  

             51          See   AS 44.21.410(a)(4) (requiring OPA to represent indigent parent in                                                              

custody case when opposing parent is represented by public agency).                                               

             52          Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly,  


397 U.S. 254, 263-71 (1970)).  


             53          See Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).  


             54          In re K.L.J., 813 P.2d at 279.  


             55          See  Flores,  598  P.2d  at  896  ("This  disadvantage  is  constitutionally  


impermissible where the other parent has an attorney supplied by a public agency.").  


                                                                             -14-                                                                       7161

----------------------- Page 15-----------------------

                               2.             Due Process for Dennis                   

                               Having determined that these parents do not, as a class, require court-                                                                                    

appointed counsel, we now apply the                                                    Mathews  factors to Dennis's claim that he has an                                                           

individual due process right to counsel.                                                     

                                              a.              Private interest   

                               In this case the custody modification hearing did not threaten to terminate                                                                         

Dennis's parental rights.                                 And unlike in                    Flores, where "the distance between California                                        

and Alaska and the petitioner's indigency" meant that losing custody would "have the                                                                                                             


same    consequences"    as    termination,                                                                                                                                           

                                                                                                   Stephanie   and   Dennis   reside   in   nearby  


communities.  Because this case involved only custody and would not have the effect of  


depriving  Dennis  of  his  parental  rights,  his  interest  here  is  not  "of  the  highest  



                                              b.              Risk of erroneous deprivation  


                               To determine the risk of erroneous deprivation on an individual basis, we  



"consider the likelihood that [the requested procedure] might alter the outcome."                                                                                                             That  


assessment  "is  not  the  same  as  determining  whether  any  constitutional  error  was  


harmless, but more fundamentally considers" the effect of the request for counsel on the  

               56              Id.  at  895  n.8.  

               57              In  re  K.L.J.,  813  P.2d  at  279.  

               58              D.M.  v. State,  Div.  of  Family  &   Youth  Servs.,  995  P.2d  205,  212  (Alaska  


                                                                                               -15-                                                                                                  7161  

----------------------- Page 16-----------------------


parent's opportunity to present a case.                             We first determine the hypothetical value of                           

appointment of counsel, and then we review the record to confirm that determination.                                                       60  

                      Flores  and In  re K.L.J.  illustrate the types of risks  that  implicate due  


process concerns.  In addition to the unfairness of a state agency representing the other  


parent, in Flores we noted that "a denial of the right to counsel will necessarily be fatal  


to the petitioner's cause, because she lacks the funds to come to Alaska and will therefore  


lose the custody proceeding by default."61   Thus that parent's "right to be heard [would]  


truly be meaningless" without appointed counsel.62                                        The risks in In re K.L.J.  were  


similarly grave because the father's indigency "prohibited him from appearing in court"  


and his physical disability  "affected  his ability  to  communicate with the court" by  



                      The risks to Dennis's rights were less grave.  As a self-represented litigant  


Dennis was unfamiliar  with the rules of evidence and procedure, and like in many  


                                                                                                                     64   Dennis was  

custody cases, representing himself likely was difficult and emotional.                                                    


facing an opponent represented by counsel, who did not have those disadvantages.  


           59         Id.  at  212-13.  

           60         See  id.  

           61         598 P.2d at 896.  We recognize that the specific facts of  Flores and  In re  

K.L.J.  have  less precedential  value  because  we  determined  in  each  case  that  an  entire  

class of indigent parents was entitled to appointed counsel.   See  In re K.L.J.,  813 P.2d  

at  282  n.6  ("Even  if  we  were  not  to  establish a  bright  line  right  to  counsel,  we  would  

conclude  that  the  facts  here  are  compelling  enough  by  themselves  to  indicate  a  violation  

of  [the  indigent  parent's]  procedural  due  process  rights.").  

           62         Flores, 598 P.2d at 896.  


           63         813 P.2d at 282.  


           64         See Flores, 598 P.2d at 896.  


                                                                    -16-                                                              7161

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Dennis was also concerned before the hearing that without a lawyer he would be unable                                                                                                 

to defend himself against Stephanie's criminal accusations and that those accusations                                                                                      

would lead to a criminal charge.                         

                              Those   risks,   however,   did   not   rise   to   an   unconstitutional   level.     The  

assistance available to all self-represented parents was available to Dennis.                                                                                              The master   

was required to advise Dennis of proper procedures and to hold him to a relatively                                                                                             

                                      65   Because Stephanie hired private counsel, the hearing did not involve  

lenient standard.                                                                                                                                                                   

the inherent unfairness of state assistance to one parent.66  To the extent Dennis's concern  


about self-incrimination stemmed fromhisFifthAmendment rights,thoseenjoy separate  


procedural protections and are not relevant to the risk of deprivation of custody.  And  


even with criminal accusations looming, Dennis's risk of erroneous deprivation of his  


parental rights did not approach the risk found in situations like Flores and In re K.L.J.,  


where parents had virtually no way to defend themselves.67   Unlike the parents in those  


cases Dennis had the opportunity to appear at the hearing, make his case, and testify if  


he desired.  


                              This conclusion - that the probable value of appointing counsel was not  


sufficiently high - "is confirmed by our review of the record, and by [Dennis's] failure  


to identify any plausible way that [he] was prejudiced" at the hearing.68   Dennis capably  


represented himself throughout the hearing. He appeared in person, presented evidence,  


               65             See  Bush v. Elkins,   342   P.3d   1245,   1253-54   (Alaska   2015)   (discussing  

"affirmative   duty   [courts   have]   to   advise   self-represented   litigants"   (citing   Breck   v.  

 Ulmer,  745  P.2d  66,  75  (Alaska   1987))).  

               66             See Flores, 598 P.2d at 895.  


               67             See id. at 896; In re K.L.J., 813 P.2d at 281-82.  


               68             D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 213 (Alaska  



                                                                                              -17-                                                                                       7161

----------------------- Page 18-----------------------

 and cross examined Stephanie, impeaching her credibility.                                                                                                                                                                               He also cautiously avoided                                                   

 admitting to any criminal actions.                                                                                                     

                                                     Dennis nonetheless claims on appeal that the master unfairly directed him                                                                                                                                                                                                         

not  to  testify   "about critical evidence necessary                                                                                                                                                  to   making   his case."                                                                   Dennis   also  

 disputes the master's weighing of the testimony, claiming that if Stephanie's actions did                                                                                                                                                                                                                                               


not exhibit a "reckless disregard for the truth, it is hard . . . to imagine what does."                                                                                                                                                                                                                                                                  

Dennis fails to explain, and we fail to see, how those claims of prejudice arise from  


Dennis's self-representation.   Instead the record reflects that the master  took every  


 opportunity to safeguard Dennis, going so far as to order Stephanie's attorney to "[s]hout  


 it right out" whenever Dennis's testimony might open the door to cross examination  


 about  the  alleged  sexual  assault.                                                                                                            The  master  explained  the  law,  granted  Dennis  


 considerable latitude, and structured the proceedings in an effort to make them easier for  


Dennis.  The master ultimately considered the evidence Dennis presented, weighing it  

 against Stephanie's testimony, and found them both credible.  The record confirms our  


 conclusion that the risk of erroneous deprivation to Dennis did not require appointment  


 of counsel.  


                           69                        Dennis further argues that the master violated Alaska Code of Judicial                                                                                                                                                                                           

 Conduct Canon 3(B)(4), requiring a judge to be "patient, dignified, and courteous to                                                                                                                                                                                                                                                        

 litigants," by commenting on what he viewed as Dennis's immature behavior.                                                                                                                                                                                                                                                      This  

 claim has no merit.                                                        See Luker v. Sykes                                                       , 357 P.3d 1191, 1199 (Alaska 2015) (holding that                                                                                                                                 

 " 'expressions of impatience, dissatisfaction, annoyance and even anger, that are within                                                                                                                                                                                                                                    

the bounds of what imperfect men and women . . . sometimes display' do not establish                                                                                                                                                                                                                               

bias or partiality" (alteration in original) (quoting                                                                                                                                             Kingery v. Barrett                                                       , 249 P.3d 275, 286                                         

n.43  (Alaska 2011)));                                                                  see also Crawford v. State                                                                                  , 337 P.3d 4, 33 (Alaska App. 2014)                                                                                       

 (holding that under Alaska Code of Judicial Conduct Canon 3(B)(4) "judges generally                                                                                                                                                                                                                             

 are not required to remove themselves from a case simply because they have made                                                                                                                                                                                                                                               

remarks that are critical of, or even hostile to, an attorney or litigant" (citing                                                                                                                                                                                                                          Hanson v.   

Hanson, 36 P.3d 1181, 1183-87 (Alaska 2001))).                                                                                                                     

                                                                                                                                                                   -18-                                                                                                                                                            7161

----------------------- Page 19-----------------------

                                    c.          State's interests   

                        The state's interests in this case,                           the third        Mathews   factor,   include an   


interest  in  the   children                                                                                                    

                                               and  an  interest  in  avoiding  the  "fiscal  and  administrative  


                                                                              In addition to a probable cost of $5,000,                     

burdens" of appointing Dennis counsel. 


appointing Dennis counsel would have caused further delays for a hearing that already  



had lasted  longer  than anticipated.                              This "lengthening of judicial procedures,"                                        an  


administrative burden that can negatively impact children, coupled with the likely fiscal  


cost, weighs against appointment of counsel in this case.  

                                    d.          Conclusion  

                        Wereiteratethatthecrux ofdueprocess ishaving ameaningful opportunity  


to be heard and represent one's interests.73                                 Here Dennis was able to defend his interest  


in  having  custody  of  his  children  and  no  unique  risks  or  challenges  demanded  


appointment of counsel at state expense.  For future cases we emphasize that the trial  


courts  are  guardians  of  due  process;  to  determine  whether  due  process  requires  


appointment of counsel in a particular case, trial courts are required to engage in a  


prospective analysis, weighing the risks of erroneous deprivation and balancing the  


Mathews  factors.   If the particular facts of a case demonstrate that the parent would  


otherwise be deprived of a meaningful opportunity to be heard, procedural due process  


            70          See In re K.L.J.           , 813 P.2d at 279.         

            71          Mathews v. Eldridge                  , 424 U.S. 319, 335 (1976) (citing                          Goldberg v. Kelly              ,  


397 U.S. 254, 263-71 (1970)).  

            72          In re K.L.J., 813 P.2d at 280.  


            73          See id. at 279 ("The crux of due process is opportunity to be heard and the  


right to adequately represent one's interests." (quoting Matanuska Maid, Inc. v. State,  


620 P.2d 182, 192 (Alaska 1980))).  


                                                                         -19-                                                                    7161

----------------------- Page 20-----------------------


may require court appointment of counsel to a parent in a custody proceeding.                                                                                                             The  

facts of Dennis's case, however, did not rise to that level.                                                          

               B.             Equal Protection Does Not Require Appointment Of Counsel.                                                                        

                              The Alaska Constitution guarantees "that all persons are equal and entitled                                                                           


to equal rights, opportunities, and protection under the law."                                                                                                                        

                                                                                                                                              Equal protection claims  


raise thequestion "whether two groups of people who are treated differently are similarly  



situated and thus entitled to equal treatment."                                                                    We have taken two approaches to  


determining whether groups of people are similarly situated: a "shorthand" analysis, and  



a full, multi-step analysis.                                    Under either test the key issues are "which classes must be  



compared" and whether treating similarly situated classes differently is justified. 


shorthand analysis, used in "exceedingly clear" cases, allows us to "summarily conclude  

                                                                                                     79  which "implies that the different legal  



that two classes are not similarly situated," 

treatment of the two classes is justified by the differences between the two classes."80  


               74             Alaska Admin. R. 12(e)(1) ("If the court determines that [appointment of]                                                                                       

counsel . . . is required by law . . . the court                                                    shall  appoint an attorney . . . ." (emphasis  


               75             Alaska Const. art. I,  1.  


               76             Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994).  


               77             Shepherd v. State, Dep't of Fish & Game, 897 P.2d 33, 44 n.12 (Alaska  



               78             Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1135-36  


(Alaska 2016) (citing State v. Schmidt, 323 P.3d 647, 660 (Alaska 2014)).  


               79             Id. at 1136 & n.81.  


               80             Shepherd, 897 P.2d at 44 n.12 (resident and nonresident users of fish and


game not similarly situated); see also Alaska Inter-Tribal Council v. State, 110 P.3d 947,



                                                                                             -20-                                                                                        7161

----------------------- Page 21-----------------------

Under the full analysis for closer cases we apply "a flexible three-step sliding-scale" to                                                        

determine the burden the state must meet to "justify[] its legislation."                                               81  

                       Dennis claims that AS 44.21.410 violates the equal protection clause by  


treating similarly situated indigent parents differently.   That statute requires OPA to  


represent "indigent parties in cases involving child custody in which the opposing party  


is represented by counsel provided by a public agency."82                                           But the law does not require  


OPA, or any other state-appointed counsel, to represent indigent parents if the opposing  


party is represented by private counsel.83  


                       Dennis's argument fails under our due process holding.   Here the two  


classes of parents are those with a categorical right under Flores to appointed counsel,  


and those without. Alaska Statute 44.21.410 codified our decision in Flores that parents  


facing state opposition in custody cases have a due process right to appointed counsel,  


and gave OPA the responsibility of providing that constitutionally required counsel.84  


            80         (...continued)  


968 (Alaska 2005) (on-road and off-road Alaskan communities not similarly situated);  


Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (attorney and nonattorney pro se  


litigants not similarly situated); Lauth v. State, Dep't of Health & Soc. Servs., Div. of  


Pub. Assistance, 12 P.3d 181, 187 (Alaska 2000) (children with one and children with  


noeconomically secureparents not similarly situated); Smith v. State,Dep't of Corr.,872  


P.2d 1218, 1227 (Alaska 1994) (discretionary and mandatory parolees not similarly  


            81         Planned Parenthood, 375 P.3dat1137 (quoting Alaska Pac. AssuranceCo.  


v. Brown, 687 P.2d 264, 269 (Alaska 1984)).  


            82         AS 44.21.410(a)(4).  


            83         See id.  


            84         See In re Alaska Network on Domestic Violence &Sexual Assault , 264 P.3d  


835, 838 (Alaska 2011) (interpreting the statute based on our Flores holding because it  



                                                                       -21-                                                                 7161

----------------------- Page 22-----------------------

 By contrast, we hold today that due process does not require appointment of counsel to                                                                                                                                                             

 the class of indigent parents to which Dennis belongs. The distinct due process concerns                                                                                                                                        

 applying to each class of indigent parents allow us to conclude that they are not similarly                                                                                                                                     

 situated without needing to conduct a full equal protection analysis.                                                                                                                                         Because "real   

 diversityjustifies differential treatment," thedifferencesbetween                                                                                                                       theseclasses ofparents                       

                                                                                                 85   Alaska Statute 44.21.410 does not violate Dennis's  

justify their differential treatment.                                                                                                                                                                                            

 equal protection rights under the Alaska Constitution.  


 V.                 CONCLUSION  

                                       We AFFIRM the decision denying Dennis's motion for appointment of  



                    84                 (...continued)  


 "was enacted in 1984 as part of the law establishing" OPA and its "language appears to  


 have been drawn directly from Flores" (citing  Office of Pub. Advocacy v. Superior  


 Court, Second Judicial Dist., 799 P.2d 809, 810 (Alaska App. 1989))).  

                    85                 Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994).  


                                                                                                                       -22-                                                                                                                 7161

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