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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mariah B. v. State of Alaska, DHSS, OCS (12/10/2021) sp-7573
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
MARIAH B., )
) Supreme Court No. S-18026
Appellant, )
) Superior Court No. 3AN-19-00037 CN
v. )
)
O P I N I O N
STATEOF ALASKA, DEPARTMENT OF )
HEALTH & SOCIAL SERVICES, OFFICE ) No. 7573 - December 10, 2021
OF CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for
Appellant. Laura Fox, Senior Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellee. Laura Hartz, Assistant Public Advocate, and
James Stinson, Public Advocate, Anchorage, for Guardian
Ad Litem.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
WINFREE, Chief Justice.
I. INTRODUCTION
The superior court terminated a mother's parental rights to her daughter
after a termination trial. The mother appeals, and we address only her first and predicate
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evidentiary appeal point: Did the superior court improperly admit and rely on hearsay
1
testimony, under CINA Rule 18(f)
or otherwise, despite the mother's objections?
We conclude that on the facts of this case the mother preserved her
evidentiary appeal point; we reject the Office of Children's Services's (OCS) assertion
that the mother waived her evidentiary objection by not repeatedly raising it to every
question asked during the relevant testimony. We also conclude that, because the
superior court did not explain its evidentiary ruling at any point during the relevant
testimony or in its termination decision, we cannot determine: (1) whether the court
allowed some or all of the hearsay testimony for limited purposes; (2) how the court used
the hearsay evidence to reach its findings; or (3) whether the court erred or abused its
discretion by allowing and relying on the hearsay testimony. We therefore remand to the
superior court for a full explanation of its evidentiary ruling, how the ruling relates to the
hearsay testimony, and how the hearsay testimony relates to the court's findings.
1 CINA Rule 18(f) states:
Hearsay that is not admissible under a recognized exception
to the hearsay rule is not admissible at a trial on a petition to
terminate parental rights to prove that the child has been
subjected to conduct or conditions described in
AS 47.10.011. Otherwise, hearsay may be admissible at the
trial if it is probative of a material fact, has circumstantial
guarantees of trustworthiness, and the appearing parties are
given a fair opportunity to meet it.
See also Jeff A.C., Jr. v. State , 117 P.3d 697, 709 (Alaska 2005) (Bryner, J., concurring)
("Rule 18(f) adopts a two-tiered standard for hearsay in termination trials[;] [it] allows
reliable hearsay to be admitted for most purposes, but it requires compliance with the
formal hearsay exceptions set out in the Alaska Rules of Evidence when hearsay is
offered to prove an issue related to adjudication.").
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II. RELEVANT PROCEEDINGS
OCS petitioned to terminate the mother's parental rights to her daughter,
alleging that the child was in need of aid under AS 47.10.011(1) (abandonment),
(9) (neglect), and (10) (parental substance abuse). A termination trial took place over
2
several days in early 2021.
OCS's primary witnesses were the child's foster mother and
an OCS supervisor.
2 Under relevant Alaska Child in Need of Aid (CINA) statutes and rules, the
mother's parental rights could be terminated after trial only if the superior court finds:
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or
conditions described in AS 47.10.011 and
(i) the parent has not remedied the conduct or
conditions in the home that place the child at
substantial risk of harm; or
(ii) the parent has failed, within a reasonable
time, to remedy the conduct or conditions in the
home that place the child in substantial risk so
that returning the child to the parent would
place the child at substantial risk of physical or
mental injury; [and]
. . . .
(2) by clear and convincing evidence that
(A) the Department has complied with the provisions
of AS 47.10.086 concerning reasonable efforts; [and]
. . . .
(3) by a preponderance of the evidence that termination of
parental rights is in the best interests of the child . . . .
CINA Rule 18(c); AS 47.10.088 (establishing requirements for termination).
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The OCS supervisor was prepared to base her trial testimony on her
personal knowledge as supervisor, her occasional personal involvement in the mother's
case, and her review of the report of contact (ROC) notes logged by caseworkers in
OCS's central record keeping system. OCS also was prepared to offer the ROC notes
3 But before the supervisor took
as business records under Alaska Evidence Rule 803(6).
the stand, the mother objected to the supervisor's anticipated testimony to the extent it
was based on hearsay contained within the ROC notes and informal conversations with
caseworkers. The mother asserted "a standing objection to . . . [the supervisor] testifying
to things that . . . caseworkers did, based on their notes." The mother also objected to
admitting the ROC notes as business records.
OCS countered that the supervisor's testimony was based on her "having
direct hands on the case throughout" and that she would testify based on "her own direct
3 Alaska Evidence Rule 803 provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
. . . .
(6) Business Records. A memorandum, report, record, or
data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge
acquired of a regularly conducted business activity, and if it
was the regular practice of that business activity to make and
keep the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or
not conducted for profit.
-4- 7573
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experience . . . as well as her understanding as the supervisor." OCS claimed that the
supervisor not only could effectively lay the foundation for admitting the ROC notes as
business recordsbut also could corroboratethenotes' contents with personal knowledge.
OCS argued that ROC notes had been routinely introduced as business records in
previous cases.
The superior court initially declined to rule on the mother's evidentiary
objections, reasoning that it "[didn't] know the purpose [for which] OCS want[ed]" the
supervisor's testimony. The court commented that the supervisor might refer to the ROC
notes as "possible background" or to illustrate why she was "more on the lookout for X,
Y, and Z" and that the court might admit the notes for a more "limited purpose" than
their substantive truth. The court asked both parties to brief the issues before trial
resumed.
The parties' briefing focused on the admissibility of the ROC notes as
business records and the admissibility ofthesupervisor's hearsay testimony under CINA
Rule 18(f). OCS argued that the ROC notes satisfied the business records exception in
Alaska Evidence Rule 803(6). OCS also argued in conclusory fashion that the
supervisor's testimony, even if otherwise inadmissible hearsay, was admissible under
CINA Rule 18(f) because it was relevant to the required failure to remedy and reasonable
efforts inquiries, had "circumstantial guarantees of trustworthiness," and the mother had
4 The mother argued that the ROC notes were unreliable
"a fair opportunity to meet it."
as business records and compared them to incident reports we found inadmissible as
4 See supra note 1 (setting out Rule 18(f)'s (1) prohibiting of hearsay not
otherwise admissible under residual hearsay exception to prove child is in need of aid
under AS 47.10.011 and (2) allowing use of such hearsay when it is probative of material
fact, it has circumstantial guarantees of trustworthiness, and parties have fair opportunity
to meet it); supra note 2 (outlining findings required to terminate parental rights).
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5
business records, due to potential bias, in Wassillie v. State . The mother also argued that
the ROC notes - and any testimony based on them - did not have the "circumstantial
guarantees of trustworthiness" required by Rule 18(f) and thus were inadmissible.
When proceedings reconvened, the mother again asserted her evidentiary
objections. OCS suggested proceeding with the supervisor's testimony and "not[ing]
[the mother's] objection for purposes of the trial . . . rather than . . . rehashing every
question along those lines." The superior court seemingly agreed:
So what I want to do is just proceed. We'll take [the
supervisor's] testimony and we'll see just what she does have
to say, and I might alter my rulings. I will, in any event, give
it the weight I think it deserves, but of course that's different
from admissibility. Right now, I'm going to deem it
admissible, but I reserve the right to maybe change my mind
after I hear a little bit more. . . . And believe me, I will let
everybody know squarely one way or the other . . . . [D]oes
that work?
Both parties assented. The court emphasized that the mother was "not
waiving anything" with respect to her objection.
The supervisor testified that she had: worked for OCS since 2003; been a
6
supervisor since 2011; and supervised the CINA Therapeutic Court (CTC) since 2015.
5 411 P.3d 595, 604 (Alaska 2018) (holding that incident report lacked
"assured neutrality" and "could be influenced by the reporter's incentives to
misrepresent, including a 'motive to attempt to affect the outcome,' " and concluding
report could not "be accorded the presumption of accuracy that Evidence Rule 803(6)
recognizes in business records" (quoting State v. Huggins , 659 P.2d 613, 616 (Alaska
App. 1982))).
6 CTC is a "parallel court" program for participants with an ongoing CINA
case; its mission is "to accelerate permanency in child welfare cases by providing
enhanced court oversight for parents or custodians in need of recovery services."
ALASKA COURT SYSTEM, PUB-122, ANCHORAGE CINA THERAPEUTIC COURT,
(continued...)
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----------------------- Page 7-----------------------
She said she regularly supervised roughly 5 caseworkers at a time, each handling
between 12 and 30 cases. She claimed to have a "high knowledge of the majority of . . .
[her] workers' cases" and even more knowledge of CTC cases. She explained that
supervisors develop mentor relationships with caseworkers andthat ifacaseworker were
unavailable for an extended period of time, she would "babysit that caseload" such as by
going to court hearings or participating in administrative reviews. She said she
supervised the mother's case fromits inception, occasionally filling in when the case was
"without a worker."
The supervisor elaborated on the purpose and process of creating ROC
notes. She explained that caseworkers have been required since 2004 to document all
developments relating to their cases, including contact with parents and court hearing
notes, in a centralized system. She noted that OCS's "philosophy is basically if it's not
in [the system], it didn't happen." She said that the ROC notes help caseworkers catch
up on newly assigned cases, keep track of case developments, find individuals' contact
information, and facilitate interdepartmental coordination. She testified that notes must
be entered within five days of an incident, that they are subjected to supervisor audits for
timeliness and thoroughness, and that caseworkers sometimes have to be reminded to
make timely entries. She also said that supervisors have tools to verify that the dates in
the notes match the time they were entered.
The supervisor testified that she had reviewed the relevant ROC notes for
the mother's case and nothing seemed out of the ordinary, although the supervisor
6 (...continued)
https://public.courts.alaska.gov/web/forms/docs/pub-122.pdf. Participants must
"acknowledge a need for recovery services," regularly attend court, and follow a
recommended treatment plan. Id. Participants are assigned a team including an OCS
caseworker and a CTC judge. Id.
-7- 7573
----------------------- Page 8-----------------------
acknowledged that she had not directly supervised all the caseworkers whose notes she
reviewed. She said the ROC notes "concurred with things [she] independently knew or
remembered from [her] more direct work on the case."
Thesupervisor'stestimonywasatonepoint interrupted for another witness.
Before the supervisor resumed the stand, the mother again raised her evidentiary
objections. The mother again characterized her objections as a "blanket objection,"
arguing that the supervisor should not be allowed to testify, based on ROC notes, about
actions taken by other caseworkers who were not present or subject to cross-
examination. The superior court stated that it stood by its "earlier ruling" and allowed
the continuing testimony.
The supervisor then testified that OCS became concerned about the family
after receiving reports of the mother's drug use and the daughter's subsequent positive
test results. The supervisor also described OCS's concerns with the mother's alleged
involvementwith multiple sex offenders. The supervisor claimed to knowfromtheROC
notes that the mother had a sex offender "living in [her] home." But the supervisor later
admitted that the ROC notes mentioned nothing about cohabitation and that her
"understanding" of the situation was based on an undocumented conversation with a
caseworker.
The supervisor also described the mother's CTC progress. The supervisor
explained that themother had struggled with housing and employment, whichthemother
prioritized despite OCS's concerns about her sobriety and progress through treatment.
Thesupervisor said the mother progressed through treatment more slowly than is typical.
The supervisor said the mother was discharged from CTC at the end of 2019 after
receiving the "max benefit she could" and failing to progress.
Thesupervisor thendescribedthemother'sstruggleto consistently produce
negative urinalysis results in the latter half of 2020. The supervisor testified that the
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----------------------- Page 9-----------------------
mother had admitted to a relapse in the summer of 2020 and that urinalysis records
admitted into evidence reflected a pattern from mid-June through October of no-shows
and diluted samples, which OCS considers as testing positive.
The supervisor testified that OCShadongoing concerns about the mother's
sobriety and history of relapses, even assuming the mother had been sober since her
summer 2020 relapse. The supervisor said that the mother had not fully understood the
impact of her substance abuse on her daughter and that the mother could not keep her
daughter safe. The supervisor said she drew this conclusion from reading caseworkers'
notes. She also reported that the mother was not taking advantage of OCS-arranged
visitation, though the supervisor could not confirm this through personal knowledge.
Finally, the supervisor testified that OCS had the ability to refer the mother for mental
health treatment but that it did not do so. The supervisor testified that overall, OCS could
have done nothing more to help the mother.
OCS ultimately did not offer the ROC notes into evidence. But at OCS's
request the court did admit into evidence numerous case plans, treatment records,
urinalysis and hair follicle test results, intake assessments, CTCreviews, and observation
records.
III. DISCUSSION
The superior court explained its termination order on the record, making
all the required findings.7 The court referred to the supervisor's testimony at several
points and stated that the supervisor was "very credible in this case throughout, top to
bottom." But the court did not mention the supervisor's hearsay testimony, the reasons
for or limitations on its admissibility, or how the hearsay testimony played a part in the
court's decision.
7 See supra note 2 (setting out required termination findings).
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A. Preservation Of Evidentiary Issue
OCS argues that the mother did not preserve her hearsay objections to the
supervisor's testimony and therefore cannot raise them on appeal. According to OCS,
the mother should have objected to each portion of the supervisor's testimony that was
based on hearsay because the superior court made only preliminary, not final, rulings on
the evidence. The mother responds that the court's rulings on her standing objections
preserved them for appeal.
We have explained that an evidentiary objection should be renewed if the
court "takes the question under advisement or otherwise reserves or postpones ruling
8 Whether the mother preserved her hearsay objections in this case thus turns
thereon."
on whether the court made a definitive ruling about the proposed testimony or reserved
its ruling and told the mother to raise contemporaneous objections. We emphasize,
however, that a party's unilateral, putative "blanket objection" does not necessarily
preserve an evidentiary objection and that the correct focus is on the court's rulings.
The superior court definitively ruled - twice - about admitting the
supervisor's testimony. The first ruling came after the court ordered additional briefing
on the admissibility of both the ROC notes and the testimony. The court declined to rule
on the admissibility of the ROC exhibit, but it ruled on the admissibility of the
supervisor's testimony. The court said it wanted to "just proceed" and would "deem [the
supervisor's testimony] admissible," though it "might alter [its] rulings" or "change [its]
mind" later. The court assured the mother that she was "not waiving anything" by
allowing testimony to proceed without further objection.9 The second ruling came when
8 Torres v. State , 519 P.2d 788, 794 n.17 (Alaska 1974).
9
OCS now argues that the mother should not have been permitted to make
a "standing objection" to the testimony before the supervisor even took the stand and that
(continued...)
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----------------------- Page 11-----------------------
the supervisor returned to the witness stand after a break for another witness's testimony,
and the mother again objected. The court stated that it stood by its "earlier ruling."
Taken as a whole, the court's rulings on the supervisor's testimony do not
read as thetypeofpreliminary or reserved rulings requiring contemporaneous objections
10 Nor did the court tell the mother to raise her objections
to preserve the issue for appeal.
again and again contemporaneously with the questioning.11 The court instead ruled the
supervisor's hearsay testimony was admissible subject to thecourt's own changeofmind
and specifically assured the mother that she was "not waiving" her hearsay objection by
allowing the testimony to proceed. We therefore conclude that the mother preserved her
objection to the admission of the supervisor's hearsay testimony.
B. Evidentiary Issue
The question then becomes whether we can review the superior court's
evidentiary ruling on the record presented or must remand for further explanation. When
evaluating the adequacy of the record for appellate review in other contexts, we have
asked whether the court gave a "clear indication of the factors . . . [it] considered
9 (...continued)
the mother's failure to object to each disputed portion of the hearsay testimony hampered
the development of the record. But at the time OCS proposed to the superior court that
the mother make a blanket objection "for purposes of the trial" and that questioning
proceed "to avoid objections and rehashing every question along those lines." OCS also
expressed its desire for a final ruling so that it could decide whether to subpoena more
witnesses. The court's evidentiary ruling thus was precisely what OCS had requested.
10 See Torres, 519 P.2d at 794 n.17.
11 See id.
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12
important in exercising its discretion," either explicitly or implicitly from the record.
We see no reason that framework would not apply in this context.
CINA Rule 18(f) prohibits the use of otherwise inadmissible hearsay
13 But the Rule allows,
evidence to prove a child is in need of aid under AS 47.10.011.
for other purposes, the use of otherwise inadmissible hearsay evidence with
"circumstantial guarantees of trustworthiness" which the opposing party has a "fair
opportunity to meet."14 The Rule does not prescribe factors for consideration, but the
Rule's requirements are not empty phrases. We have yet to authoritatively interpret the
Rule or similarly worded rules applicable at other stages of a CINA proceeding,15 but
Rule 18(f) shares language with the Alaska Evidence Rules: Like CINA Rule 18(f),
Evidence Rules 803(23) and 804(b)(5) - the residual hearsay exceptions - call for
12 See, e.g., Smith v. Weekley, 73 P.3d 1219, 1226-27 (Alaska 2003) (quoting
Borchgrevink v. Borchgrevink, 941 P.2d 132, 139 (Alaska 1997)); Borchgrevink, 941
P.2d at 139 (concluding trial court could have made findings more explicit but record
suggested court had adequately considered statutory factors for child custody
determination to allow for appellate review); see also Dragseth v. Dragseth, 210 P.3d
1206, 1210-11 (Alaska 2009) (citing Smith and remanding because trial court did not
indicate which factors it considered when determining children's best interests); Bird v.
Starkey, 914 P.2d 1246, 1249-50 (Alaska 1996) (remanding to trial court for further
explanation of its decision in custody dispute to send child to particular school because
lack of findings made decision "essentially unreviewable"); Lone Wolf v. Lone Wolf, 741
P.2d 1187, 1190-91 (Alaska 1987) (reversing and remanding for better explanation of
trial court's denial of visitation rights).
13 See supra note 1.
14 See supra note 1.
15 See CINA Rule 10(b)(3) (allowing limited hearsay testimony in temporary
custody hearings); CINA Rule 17(e) (allowing limited hearsay testimony in disposition
hearings); CINA Rule 17.2(d) (allowing limited hearsay testimony in permanency
hearings).
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16
"circumstantial guarantees of trustworthiness." Our cases discussing the residual
hearsay exceptions therefore provide useful guidance.
We have instructed courts to "conduct a searching review of the facts of the
17 For
individual casebeforedetermining theapplicability of either [residual exception]."
example, in Matter of A.S.W. we affirmed the admission of a videotaped interview with
a child victim of sexual abuse under a residual hearsay exception because the trial judge
viewed the video and made specific findings about why it was reliable.18 Unlike in
A.S.W. , the superior court in this case conducted no pre-ruling review of the facts, let
alone a "searching" one.19
Theparties briefed theadmissibility oftheOCSsupervisor's testimony,and
OCS argued that the supervisor in this case had more personal knowledge than an
ordinary supervisor. But there is no indication, explicit or implicit, that the court
carefully considered the briefing and arguments as they related to specific offered
testimony. The court instead remarked that it had a "generalized" sense of the arguments
around admissibility but that it did not know many details. It nevertheless admitted the
testimony subject to changing its mind, but, despite commenting that it would "let
everybody know" at some point "before . . . [the OCS supervisor] step[ped] down," it
offered no additional clarification or analysis. We thus are left with no record about the
purpose(s) for which the OCS supervisor's hearsay evidence was offered; whether the
16 Alaska R. Evid. 803(23), 804(b)(5) (requiring allowable hearsay to have
"circumstantial guarantees of trustworthiness").
17 Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1218
n.17 (Alaska 1991).
18 834 P.2d 801, 802-03 (Alaska 1992).
19 Cf. Broderick, 808 P.2d at 1218 n.17.
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hearsay evidence was admitted under a residual exception to the general hearsay rules
or under Rule 18(f)'s three-factor test; or how the hearsay evidence was used to support
the superior court's termination findings.
The OCS supervisor's hearsay-based testimony may have satisfied the
requirements of Rule 18(f). OCS contends that the OCS supervisor's testimony based
on ROC notes would be admissible for non-hearsay proposes, for example "explaining
why she did what she did" or "whether OCS made reasonable efforts." OCS also
plausibly argues that theRuleiswell-suited for situations with high caseworker turnover,
leaving OCS supervisors as the only constant presence on the case, but this seems to lead
to a conclusion that every supervisor is an "expert" entitled to rely on hearsay evidence
20 And "[i]n cases involving issues of such fundamental
to support an opinion.
importance as parents' rights to raise their children, it is imperative that the legal system
act with great care to protect parties' rights."21
If the superior court relied solely on Rule 18(f), the court could have
considered and made findings before deciding on the hearsay testimony's admissibility.
These findings might include: (1) how closely the supervisor oversaw the caseworkers
who created the ROC notes; (2) the supervisor's level of reliance on personal knowledge
20 See In re Hospitalization of Rabi R. , 468 P.3d 721, 732 (Alaska 2020)
(explaining expert "was entitled to rely on 'facts or data . . . not . . . admissible in
evidence' as long as they were 'of a type reasonably relied upon by experts in [that]
particular field,' and [to] 'disclose . . . the underlying facts or data' supporting [the
expert's] opinion. It was not error for the court to rely on the expert testimony based on
such information." (first quoting Alaska R. Evid. 703; and then quoting Alaska R. Evid.
705)); see also Pingree v. Cossette , 424 P.3d 371, 378 (Alaska 2018) ("[E]xpert[s] . . .
do not have to rely only on admissible evidence in forming their opinion, and evidence
they rely on may be disclosed during [their] testimony.").
21 Diego K. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 411
P.3d 622, 628 (Alaska 2018).
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----------------------- Page 15-----------------------
of the case and her level of reliance on the notes; (3) the supervisor's personal
involvement in the case; (4) the extent to which the supervisor's testimony was based on
hearsay not contained in the notes; (5) the mother's ability to access the hearsay sources,
such as other caseworkers and the ROC notes, that informed the supervisor's testimony;
(6) the reliability of the ROC notes; (7) the reliability of the supervisor's testimony when
the ROC notes themselves were not admitted into evidence, despite OCS claiming that
it was routine to do so; and (8) the other caseworkers' availability to testify.
Becausethesuperior court didnot explain itsreasons for admitting the OCS
supervisor's hearsay testimony under Rule 18(f) (or otherwise) or how the hearsay
testimony played a part in the court's termination decision, we conclude that this case is
22 An inquiry into the "circumstantial guarantees of
"essentially unreviewable."
trustworthiness" is inherently fact-specific; it would be difficult to decide whether the
superior court abused its discretion23 without first knowing what factors it relied upon
in deciding that the OCS supervisor's testimony met this standard and whether the
mother had a "fair opportunity to meet" the testimony, some of which came from
conversations with caseworkers that were not captured in the ROC notes.
IV. CONCLUSION
WeREMANDfor thesuperiorcourt'sexplanation ofits evidentiary rulings
and how they relate to the findings underlying the termination order. We retain
22 Bird v. Starkey , 914 P.2d 1246, 1249-50 (Alaska 1996) (noting case law
that "requires the trial court to articulate the reasons for its holding where those reasons
are not apparent from the record" and that without such "findings, the order becomes
essentially unreviewable").
23 See, e.g., In re A.S.W., 834 P.2d at 803 n.3 (reviewing evidentiary ruling
under residual hearsay exception for abuse of discretion).
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jurisdiction to consider the mother's appeal after the superior court issues its explanation
of the record.
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