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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barry H. v. State, Dept. of Health & Social Services, Office of Children's Services (8/11/2017) sp-7188
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BARRY H., )
) Supreme Court No. S-16415
Appellant, )
) Superior Court No. 2KB-13-06/08/09CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMEN )
T
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICE
S, )
)
No. 7188 - August 11, 2017
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Kotzebue, Paul A. Roetman, Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Joanne M. Grace, Assistant Attorney General, Anchorage,
and Jahna Lindemuth, Attorney General, Juneau, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
The father in a Child in Need of Aid (CINA) proceeding sought to dismiss
his court-appointed counsel and represent himself. The trial court found that the father
could not conduct himself in a rational and coherent manner sufficient to allow him to
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proceed without an attorney and denied his request. After a six-day trial the court
terminated his parental rights to three of his children. The father appeals, arguing that
the trial court erroneously deprived himof his right to represent himself during the CINA
proceeding. We affirm the trial court's decision.
II. FACTS AND PROCEEDINGS
1
Barry
and his wife, Donna, live in Kiana. The Office of Children's
Services (OCS) took emergency custody of four of their children in February 2013 after
2
receiving reports that Barry was physically and sexually abusing members of his family.
At their initial hearings both Barry and Donna agreed to have counsel appointed for
them.
In April 2013 Barry submitted a document to the court entitled "Opposition
Response to Claims and Demand to show Apparent Authority and Actual Authority with
Affidavit in Support." He did not submit it through his attorney. He asserted that he was
participating in the case by "special appearance and only as a courtesy, objecting to
STATE OF ALASKA subject matter jurisdiction, and personal jurisdiction over
[himself, as a] natural Inupiaq man, vessels for Gods living souls." (Emphasis in
original.) He also asked to be relieved of counsel, claiming that the Public Defender
Agency was "restrained" in its advocacy "by a power seemingly higher, such as, Alaska
Bar Association, that might be administering to it's [sic] members over [his] free will
choice of what should be made into [his] record of truths." He also demanded that the
court "prove up apparent authority, and actual authority first, before we [proceed] any
1 We use pseudonyms to protect the family's privacy.
2
One of the children turned 18 and was released from OCS custody before
the final termination hearing.
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----------------------- Page 3-----------------------
further." At a scheduling conference later in the month, the court indicated that it would
not take action on Barry's filing because it had not been filed by his attorney.
Barry and his wife appeared by telephone at the next hearing the following
month. They appeared by telephone at all subsequent hearings as well. He again
asserted that he and his wife were "here on special appearance and as a courtesy." When
the court asked about his desire to dismiss his attorney, Barry confirmed that he wanted
to represent himself, reiterated that he was there "by special appearance," and again
challenged the court's "actual authority [and apparent] authority." When the court
explained that it would have to ask him some questions to determine whether he could
represent himself, Barry repeated, "We're here on special appearance and as a courtesy.
. . . We'd like that from here on we - we have no business with you."
The court interpreted Barry's "authority" statements as a challenge to its
jurisdiction. It carefully explained that the Alaska Constitution and the legislature had
3 The court then asked Barry if
established the court system and outlined its authority.
he was willing to answer questions to help it make a decision regarding Barry's
representation. In response Barry "object[ed]," telling the court, "You need to answer
my opposition before you can even proceed in this matter." The court repeated its
question, and Barry repeated his "special appearance" assertion and "object[ed] to the
State of Alaska subject matter jurisdiction and personal jurisdiction over [his] natural
Inupiaq family." The court again asked Barry to answer its questions, but received no
audible response. Because Barry did not answer, the court noted that it had no
information either supporting his request or not, and moved on to other issues.
The rest of Barry's appearances leading up to his termination trial were
similar. He objected to the court's authority again at the adjudication hearing in June.
3 See Alaska Const. art. IV, §§ 1, 3; AS 22.10.020.
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----------------------- Page 4-----------------------
At a permanency hearing in 2014 Barry continued to insist that the court and OCS
"might not have . . . the actual authority and apparent authority to do what they're doing
here," and he refused to answer the court when it asked him why he wanted to dismiss
his attorney. Instead he told the court that "the State of Alaska is, quote, a private
company, a corporation, not a proper seat of government." The hearing was continued
until later in the month. When it resumed, Barry argued at such length against the
court's authority that the court had to threaten to disconnect him before proceedings
could resume as normal. Shortly afterward, the guardian ad litem filed a motion to
require Barry and Donna to appear in person for any future court hearings; he alleged
that Barry had been broadcasting the confidential proceedings locally over the VHF
4 The court declined to order that Barry and Donna personally appear, but did
radio.
require that their future participation by telephone be supervised by the local Village
Public Safety Officer (VPSO).
In April 2015 Barry's attorney moved to withdraw, citing Barry's right and
desire to represent himself. The court was skeptical of the request. It noted that our
decision in McCracken v. State5 required parties to "present[] themselves in a way that
is rational and coherent" in order to be permitted to represent themselves. Despite its
reservations, the court agreed to hold a hearing on Barry's request.
Barry appearedbytelephoneandimmediately repeated his objections to the
court's authority and asserted that he was making a special appearance out of courtesy.
4 See AS47.10.070(c); CINARule3(f) (establishingconfidentiality rules for
CINA hearings). It is not uncommon in rural Alaska, where telephone service has often
been unreliable, for people to communicate over VHF radio. See OFFICE OF THE
GOVERNOR, LETTER TO NATIONAL TELECOMMUNICATIONS AND INFORMATION
ADMINISTRATION (Nov. 25, 2014), available at https://www.ntia.doc.gov/
files/ntia/state_of_alaska.pdf.
5 518 P.2d 85 (Alaska 1974).
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----------------------- Page 5-----------------------
He demanded that the court "accept [his] affidavit into the court record, the opposition
and demand to show apparent and actual authority for signature authority." The court
once again explained that it had to ask him questions to determine whether to dismiss his
attorney and allow him to represent himself. Barry again asserted that the court lacked
authority over him and his family and asked the judge to recuse himself.
The court then denied his request to represent himself. It noted that in other
cases before it Barry had been able to answer questions, but that in this proceeding it had
"been very difficult to determine what [Barry] wants other than the challenges to . . . the
court's jurisdiction, challenges to the court's authority." The court concluded:
I don't believe that based on the filings that he's made pro se,
based on the statements that he's said even today which are
statements that the court has heard before, that [Barry] is
capable of presenting his case in a manner that is rational and
coherent and consistent with the law that governs the case,
primarily because he just doesn't believe that that law applies
to him. And . . . the court doesn't agree with that, but I
understand [Barry], what he's saying, and I appreciate that he
is heartfelt and passionate about those beliefs. And I respect
them, even though I don't agree with them.
Thecourt encouragedBarry to move past his jurisdictional objections and to consult with
his attorney. Instead Barry continued interrupting with objections to the court's
authority. The hearing concluded with Barry exclaiming, "You're all fired," demanding
that his attorney be appointed as his "trustee," and accusing the court of "practicing law
from the bench."
The termination trial began in February 2016. Barry once again questioned
the state's authority, and during one witness's testimony he objected so vigorously that
the court temporarily muted his telephone connection. After the VPSO revealed that
Barry had been surreptitiously recording the proceedings, Barry launched into an
extended argument with the court about his "right" to do so. Throughout OCS's case he
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----------------------- Page 6-----------------------
interrupted witnesses to argue with them. Although he managed to cooperate with his
attorney through his own direct examination, he retreated to his usual arguments under
OCS's cross examination. At one point OCS referred Barry to a letter he had written to
the court, in which he warned that judges who took action against him would be
"personally liable" under "[a] new legal system of genuine fairness." Barry insisted on
reading the entire letter into the record, despite OCS's insistence that it was not asking
him to read the letter. At another point he asked the court if he could "charge a
counterclaim here of fraud" against OCS. And when OCS began to question him about
his criminal record, he declared the Alaska judicial system to be a "slave-created court,"
announced his intent to remain silent, and left the building from which he was giving his
testimony by telephone until his attorney coaxed him back in.
The court ultimately terminated Barry's parental rights to the children at
issue. Barry appeals.
III. DISCUSSION
Barry argues that parents in CINA proceedings have a constitutional right
to represent themselves and that the trial court erred in refusing to dismiss his counsel
once he invoked this right for himself. Regardless of whether the constitution guarantees
such a right,6 we find no error in the trial court's decision.
A. We Do Not Decide Whether The Constitution Guarantees Parents The
Right To Represent Themselves In A CINA Proceeding.
The right to self-representation in CINA cases (or other civil matters) has
no specific support in the constitutions of either Alaska or the United States. But both
constitutions guarantee a criminal defendant's right "to have the assistance of counsel
6 We review matters of constitutional and statutory interpretation de novo.
See Alaskans for a Common Language v. Kritz, 170 P.3d 183, 189 (Alaska 2007)
(citations omitted).
-6- 7188
----------------------- Page 7-----------------------
7
for his defense." The United States Supreme Court has held that criminal defendants
8
therefore also have the right to decline to be represented by counsel in criminal trials.
In McCracken v. State we held that the right to self-representation under the Alaska
Constitution extends to proceedings for post-conviction relief, which are civil
proceedings.9 We also clarified that the right to represent oneself is not absolute:
In order to prevent a perversion of the judicial process, the
trial judge should first ascertain whether a prisoner is capable
of presenting his allegations in a rational and coherent
manner before allowing him to proceed pro se. Second, the
trial judge should satisfy himself that the prisoner
understands precisely what he is giving up by declining the
assistance of counsel. . . . Finally, the trial judge should
determine that the prisoner is willing to conduct himself with
at least a modicum of courtroom decorum.[10]
Although we have not previously addressed whether there is a right to self-
representation in CINA matters,11 the CINA rules themselves provide that a court "shall
7 Alaska Const. art. I, § 11. See U.S. Const. amend. VI.
8 Faretta v. California, 422 U.S. 806, 819 (1975).
9 518 P.2d 85, 90-91 (Alaska 1974). Post-conviction relief cases a re civil
proceedings brought to challenge an underlying conviction or sentence on constitutional,
jurisdictional, or other grounds. See AS 12.72.010; Alaska R. Crim. P. 35.1; Nelson v.
State, 273 P.3d 608, 611 (Alaska 2012) ("Post-conviction relief proceedings are civil in
n
ature." (citing Hensel v. State, 604 P.2d 222, 230-31 (Alaska 1979))).
10 McCracken, 518 P.2d at 91-92.
11 See Donna A. v. State, Dep't of Heath & Soc. Servs. Office of Children's
Servs., No. S-11391, 2005 WL 564143, at *3 n.4 (Alaska March 9, 2005) (noting that
we have not decided whether the constitutional right to self-representation applies to
CINA proceedings); Matthew H. v. State, Dep't of Health & Soc. Servs. Office of
Children's Servs., ___ P.3d ___ , Op. No. 7177, 2017 WL 2391681, at *4 n.8 (Alaska
(continued...)
-7- 7188
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accept a valid waiver of the right to counsel by any party if the court determines that the
12
party understands the benefits of counsel and knowingly waives those benefits." We
conclude that this rule effectively incorporates the McCracken standard into CINA
proceedings. And like the Court of Appeals, we review decisions limiting or denying
13
self-representation for abuse of discretion.
B. The Trial Court Did Not Abuse Its Discretion In Denying Barry's
Request To Represent Himself.
Barry argues that the trial court erroneously denied him the opportunity to
represent himself because it believed that his jurisdictional arguments lacked merit. But
the record shows that the trial court did not make its decision based on Barry's attacks
on its authority; rather, the court looked to the criteria from McCracken to decide
whether he could represent himself.
The Alaska Court of Appeals applied the same criteria in a similar case. In
14
Falcone v. State it upheld a trial court's refusal to allow Falcone to represent himself.
The trial court's decision in that case was based on a number of factors:
[the defendant's] pretrial psychological evaluation, his
pleadings, and his courtroom behavior. When given the
chance to represent himself, Falcone filed bizarre pretrial
motions, and insisted on presenting a defense based on the
Uniform Commercial Code, admiralty jurisdiction, and his
religiousbeliefs. Falconealsoraisedunintelligibleobjections
11 (...continued)
June 2, 2017) (same).
12 CINA Rule 12(c).
13 See Falcone v. State, 227 P.3d 469, 473 (Alaska App. 2010) (citing Ramsey
v. State, 834 P.2d 811, 815 (Alaska App. 1992); Gargan v. State, 805 P.2d 998, 1001
(Alaska App. 1991)).
14 Id. at 474.
-8- 7188
----------------------- Page 9-----------------------
in court. In addition, Falcone repeatedly interrupted the
judge, eventually requiring the judge to warn Falcone that he
could be removed from the courtroom. [15]
The Court of Appeals affirmed, noting that Falcone's pleadings and objections "were
neither rational nor coherent" and that "[h]is personality disorder and obstreperous
courtroom conduct suggested that his trial presentation would be similarly
unintelligible."16 And it noted that his "behavior suggested that [Falcone] would not
comport himself with the 'modicum of courtroom decorum' required by McCracken ."17
Barry's behavior was similar. He "presented pleadings and courtroom
objections that were neither rational nor coherent."18 His "obstreperous courtroom
conduct"19 includedrepeatedlyinterruptingproceedings,despitewarnings, untilthecourt
was forced to temporarily mute his telephone line at trial. He covertly broadcast a
confidential hearing over VHF radio, which required the court to direct the VPSO to
supervise his phone calls before he could participate again. His behavior during pretrial
proceedings provided the trial court with ample basis to conclude that his trial
presentation would be "similarly unintelligible,"20 and his behavior at trial largely
confirmed the wisdom of the court's decision to require that he be represented by
counsel.
15 Id. at 473.
16 Id.
17
Id. at 474 (quoting McCracken, 518 P.2d 85, 92 (Alaska 1974)).
18 See id. at 473.
19 See id.
20 See id.
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----------------------- Page 10-----------------------
Barry insists that the trial court denied his request to represent himself
"because [Barry] just [didn't] believe that [the] law applie[d] to him," i.e., because the
court disagreed with Barry's view of the law. The record does not support him. The trial
court did refer to Barry's beliefs about the law and noted its disagreement with his
position. But the court emphasized that it understood his beliefs and that it
"appreciate[d] that he [was] heartfelt and passionate about those beliefs." The court
further noted that it "respect[ed]" those beliefs, even though it did not agree with them.
The court clearly based its decision not on Barry's beliefs, but on his
behavior in "persist[ing] in his eccentric defenses to the point where it was virtually
impossible to hold any meaningful discussion of his case, and to the point where [his]
behavior suggested that he would not comport himself with the 'modicum of courtroom
21 Barry responded to virtually every question from
decorum' required by McCracken."
the court - why he wanted to dismiss his attorney, if it was okay to reschedule a
hearing, whether he had received certain paperwork, whether he could hear the court
over the telephone - with a challenge to the court's authority or a demand that the court
prove its authority to Barry's satisfaction.
We therefore conclude that the trial court did not abuse its discretion in
denying Barry's request to represent himself. We commend the trial court for the
unfailing respect and patience that it exhibited throughout these proceedings.
IV. CONCLUSION
The decision of the trial court is AFFIRMED.
21 See id. at 474 (quoting McCracken, 518 P.2d at 92).
-10- 7188
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