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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Norman S. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (3/13/2020) sp-7429
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,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
NORMAN S., ) Supreme Court No. S-17396
)
Appellant, ) Superior Court No. 4FA-17-00173 CN
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) No. 7429 - March 13, 2020
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Thomas I. Temple, Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Mary Ann Lundquist, Senior Assistant Attorney General,
Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau,
for Appellee. Nikole V. Schick, Assistant Public Advocate,
and James Stinson, Public Advocate, Anchorage, for
Guardian Ad Litem.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
A father appeals the superior court's decision to terminate his parental
rights to his daughter. The father attended the termination proceeding but left early, at
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which point the Office of Children's Services (OCS) moved forward with an offer of
proof. The father's attorney objected to the offer of proof, but the court accepted the
offer and terminated the father's parental rights. The father now challenges the
termination proceeding's procedure and outcome. He argues that OCS's use of an offer
of proof violated his right to procedural due process and constituted structural error. He
also argues that the court erred in terminating his parental rights because there was not
sufficient evidence. We agree that a court may not accept such an offer as proof of the
facts asserted, unless the opposing party offers no dispute. Therefore, we vacate the
termination order and remand for further proceedings.
II. FACTS AND PROCEEDINGS
1
Norman S. and Rebecca N. are the parents of Heather. Heather was born
in July 2017 with serious birth defects. Norman and Rebecca struggled with severe
substance abuse problems, including the use of methamphetamine. OCS received a
report on the day of Heather's birth indicating concerns about the baby. She was
removed from her parents by OCS on the day she was discharged from the hospital in
September. Heather was adjudicated a child in need of aid under AS 47.10.011(1)
(abandonment), (9) (neglect), and (10) (substance abuse) in March 2018.
OCS filed a petition for termination of parental rights in July, and the
termination proceeding was held the following February. The proceeding began on
February 4 at 8:38 a.m. Norman attended and his attorney asked for a moment to speak
with him. The court went off record, attended to some other matters, then went back on
record. OCS's attorney said that he was ready to begin trial and that his witnesses would
arrive at 10:00 a.m. Norman's attorney indicated that Norman wanted a trial but
requested setting it for the following week because they had not "had a meaningful
opportunity to talk about what kind of witnesses he'd like to call." OCS's attorney did
1
We use pseudonyms to protect the family's privacy.
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not want to reschedule. The court then decided to address Norman's request for a
continuance when the proceeding resumed at 10:00 a.m.
The court went back on record at 10:00 a.m. Norman was no longer in
attendance. OCS's attorney said, "We are ready to proceed [with] an offer of proof as
to him if he does not show back up in the next couple seconds." The court again asked
the father's attorney if she was prepared to proceed. She asked for a continuance, which
the court denied. The court then asked, "Anyone else wish to be heard before we
proceed with an offer of proof?" No one responded, and OCS's attorney proceeded with
his offer of proof. After the offer of proof, the court asked Norman's attorney if she
would like to be "heard any further," to which she responded, "No. Thank you." The
guardian ad litem"support[ed] the court entering termination of [Norman's] rights based
on the offer of proof." Norman's attorney requested that the findings be held in
abeyance until the court made a decision on Rebecca's rights, as is typical in termination
proceedings. The court agreed, and it went off record until the mother's proceeding. At
that point, neither Norman nor his attorney were present. OCS's attorney indicated that
Rebecca had agreed to relinquish her rights and would sign the termination agreement
that day. The court kept the matter on for 10:00 a.m. the following day "with the
understanding [it] may be just making some findings on an agreement to relinquish. And
if not, then the parties are prepared to proceed to trial tomorrow."
The proceeding resumed the next day. Rebecca had filed her
relinquishment of parental rights and responsibilities, which the court approved. The
court then asked Norman's attorney if she wanted to address anything else. She
responded,
I want to place on the record . . . concerns that I have
regarding my client, and I think they amount to objections,
essentially, regarding the entry of the offer of proof.
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My client did appear at the scheduled time at 8:30 for
his termination trial. Everybody agrees that he was present
for the initial hearing that we held. . . . [O]ne concern that I
do have is that this entry of an offer of proof is being taken,
even though my client did appear on the day of trial. So . . .
I suspect that there [is] at least an issue of the court entering
an offer of proof when my client did appear the same day for
a termination of parental rights trial, which he indicated he
did want to take advantage of.
The court determined that the fact that Norman left "is no different than folks showing
up for a trial, staying one minute, and just disappearing because they no longer want to
have a trial." The court reasoned, "He simply left, and we proceeded with an offer of
proof based on his failure to appear for his own trial. So those are the findings I'll make
for the record, but your position is noted." The proceeding then concluded.
On February 19 the court issued its order terminating Norman's parental
rights. It found by clear and convincing evidence that Heather was a child in need of aid
under the same subsections found for adjudication based on Norman's conduct; Norman
had not remedied the conduct or conditions that put Heather at a substantial risk of harm;
and OCS made reasonable and active efforts to provide remedial services and
rehabilitative programs but was unsuccessful. The court also found that "[b]ased on the
offer of proof, the previous reports and pleadings in this case, and the previously
received sworn testimony, there is proof beyond a reasonable doubt that return of
[Heather] to the father's custody is likely to result in serious emotional and/or physical
damage to [Heather]." It finally found by a preponderance of the evidence that
termination of Norman's parental rights was in Heather's best interests. Therefore, all
of Norman's parental rights were "permanently and irrevocably terminated."
Norman now appeals.
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III. STANDARD OF REVIEW
Whether a superior court may accept an offer of proof when a party objects
is a question of law. "We review legal questions de novo, 'adopt[ing] the rule of law that
is most persuasive in light of precedent, reason, and policy.' " 2
IV. DISCUSSION
A. Norman Did Not Waive His Arguments Against The Offer Of Proof.
OCS argues that Norman waived his arguments regarding the offer of
proof. We have held: "Failure to object to alleged error at the trial level may preclude
raising the point on appeal. By consenting to certain procedures or by failing to object
to others, a party may waive those rights which are arguably encompassed within due
3
process guarantees."
When the court asked if anyone wished to be heard before proceeding with
the offer of proof, Norman's attorney did not reply. After the offer of proof, the court
asked Norman's attorney if she wished to be heard any further, to which she responded,
"No. Thank you." The following day, the court asked Norman's attorney whether there
was anything more to address. She responded that she "want[ed] to place on the record
. . . objections, essentially, regarding the entry of the offer of proof." She thought it was
2 Pastos v. State , 194 P.3d 387, 391 (Alaska 2008) (alteration in original)
(footnote omitted) (quoting Guin v. Ha , 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
3 In re C.L.T., 597 P.2d 518, 522 (Alaska 1979) (citation omitted). There are
two exceptions to this rule. First, we "will consider plain error, even though not objected
to below, if it is so substantial as to result in a miscarriage of justice." Id. at 523.
Second, "an argument not explicitly raised by an appellant below may nevertheless be
considered on appeal 'if the issue is (1) not dependent on any new or controverted facts;
(2) closely related to the appellant's trial court arguments; and (3) could have been
gleaned from the pleadings.' " Radebaugh v. State, Dep't of Health & Soc. Servs., Div.
of Senior & Disabilities Servs., 397 P.3d 285, 292 (Alaska 2017) (quoting Erkins v.
Alaska Tr., LLC, 265 P.3d 292, 298 n.15 (Alaska 2011)).
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----------------------- Page 6-----------------------
"an issue" that the court entered an offer of proof when Norman "did appear the same
day for a termination of parental rights trial, which he indicated he did want to take
advantage of."
OCS argues that "Norman did not object to the offer of proof as an
improper procedure." However, Norman's attorney clearly raised "objections,
essentially, regarding the entry of the offer of proof" before the end of the hearing.
Therefore, Norman's arguments regarding the offer of proof are not waived.
B. It Was Error As A Matter Of Law To Accept An Offer Of Proof
Without The Agreement Of All Parties.
The superior court accepted OCS's offer of proof as to Norman despite an
objection by Norman's attorney. This was error as a matter of law. We now make
explicit what was implicit in earlier decisions: a court may accept an offer of proof only
4
if all present parties agree.
If any party disputes the offer of proof, then there must be
4 See, e.g., Dakota C. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., No. S-17230, 2019 WL 4051950, at *2 (Alaska Aug. 28, 2019)
("unopposed offer of proof"); Emily B. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., No. S-17180, 2019 WL 2880993, at *2 (Alaska July 3, 2019)
(attorney agreed to offer of proof); Alfred J. v. State, Dep't of Health & Soc. Servs.,
Office of Children's Servs., No. S-17120, 2019 WL 1503992, at *2 (Alaska Apr. 3,
2019) (father stipulated to offer of proof); Payton S. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 349 P.3d 162, 165 (Alaska 2015) (no indication of
objection to offer of proof); Jordan J. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., No. S-15631, 2015 WL 1985060, at *1 n.4 (Alaska Apr. 29, 2015)
("unopposed offer of proof"); Lindsey H. v. State, Dep't of Health & Soc. Servs., Office
of Children's Servs., No. S-13711, 2010 WL 4909461, at *7 (Alaska Dec. 2, 2010) (no
indication of objection to offer of proof); Lamar F. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., No. S-11092, 2019 WL 68019, at *3 (Alaska
Jan. 14, 2004) (offer of proof accepted by counsel); E.H. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., 23 P.3d 1186, 1187 (Alaska 2001) (no indication
of objection to offer of proof); In re Inquiry Concerning a Judge, 788 P.2d 716, 721
(Alaska 1990) (parties stipulated to offer of proof); Edinger v. State, 598 P.2d 943, 944-
(continued...)
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a trial on the disputed issues. Norman's attorney was present and did not accept the offer
of proof. She wanted to move forward with a trial. It was therefore error to allow the
State to proceed with an offer of proof and to terminate Norman's parental rights on
those grounds. We vacate the termination order and remand for further proceedings.
Because we vacate the termination order on these grounds, we need not
address Norman's other arguments.
V. CONCLUSION
Because it was improper for the court to accept the offer of proof given the
objection by Norman'sattorney,weVACATEthesuperior court's termination order and
REMAND for further proceedings.
4 (...continued)
ONES ON EVIDENCE § 1:3 (7th
45 (Alaska 1979) (attorney accepted offer of proof); cf. 1 J
ed. 2019) (parties must agree to stipulation as substitute for evidence); 1 M CCORMICK
EVID. § 2 (8th ed. 2020) (same).
ON
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