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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

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.  

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                      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                                          )  



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  



                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     CARNEY, Justice.  



                     The father in a Child in Need of Aid (CINA) proceeding sought to dismiss  


his court-appointed counsel and represent himself.  The trial court found that the father  


could not conduct himself in a rational and coherent manner sufficient to allow him to  

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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          



                                           and  his  wife,  Donna,  live  in  Kiana.                                        The  Office  of Children's  


Services (OCS) took emergency custody of four of their children in February 2013 after  



receiving reports that Barry was physically and sexually abusing members of his family. 


At their initial hearings both Barry and Donna agreed to have counsel appointed for  




                            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.                                          



                            One of the children turned 18 and was released from OCS custody before  


the final termination hearing.  

                                                                                      -2-                                                                               7188

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 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.  

                                                                                                                                                             -3-                                                                                                                                                                  7188  

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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  


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    


                      5                     518 P.2d 85 (Alaska 1974).  


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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  

                                                                -5-                                                         7188

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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

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for his defense."   The United States Supreme Court has held that criminal defendants                                   


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  


  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  



                                                                  -7-                                                           7188

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accept a valid waiver of the right to counsel by any party if the court determines that the                                                        


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  



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  



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

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                        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  



            15         Id.  at 473.

            16         Id.

        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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                                           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).  


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