author: WINFREE, Justice.

text:
    DENA M., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Dustin V., Appellant, v. State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellee.
    Supreme Court Nos. S-17154/17178 (Consolidated)
    Supreme Court of Alaska.
    June 14, 2019
    Emily L. Jura, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Dena M.
    J. Adam Bartlett, Anchorage, for Appellant Dustin V.
    Rebecca Hattan and Laura E. Wolff, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
    Lisa Wilson, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Guardian Ad Litem.
    Before: Bolger, Chief Justice, Winfree, Stowers, and Maassen, Justices. [Carney, Justice, not participating.]
   WINFREE, Justice.

I. INTRODUCTION

After a mother's and father's lengthy involvement with the Office of Children's Services (OCS), based primarily on alcohol abuse, their parental rights to their two minor children were terminated. Both parents appeal, challenging the superior court's admission of telephonic testimony and its perceived failure to consider guardianship as an alternative to termination. Because the parents were not prejudiced by the telephonic testimony and because there was no error in the court's consideration of a possible guardianship, we affirm the parental rights termination.

II. FACTS AND PROCEEDINGS

A. Early OCS Involvement

Dena M. and Dustin V. are the biological parents of Kelly, Shannon, Molly, and Kelton, who, at the time of the termination order, were 20, 18, 12, and 4, respectively. Shannon was 17 at the beginning of the termination trial but turned 18 and aged-out of OCS custody before the termination decision. Only the minor children, Molly and Kelton, are the subjects of this appeal. The family members are affiliated with Native Village of Eagle (the tribe), and Molly and Kelton are Indian children within the meaning of the Indian Child Welfare Act (ICWA).

OCS became actively involved with the family in 2006 after receiving a report about the parents' alcohol abuse. OCS received 15 reports of harm concerning alcohol abuse, domestic violence, and neglect prior to removing Kelly, Shannon, and Molly in 2008, before Kelton was born. A child in need of aid (CINA) adjudication was made based on risk of mental injury, neglect, and parental substance abuse. Although Dena and Dustin "minimized" the severity of their issues with alcohol, they eventually completed the substance abuse component of their case plans and Dena completed an anger management course; based on this limited success, the couple regained custody of their children in mid-2011.

About a year later, in May and June 2012, Alaska State Troopers twice were called to help Dena recover from excessive alcohol intake. Later that year the three older children again were removed from their parents' home and placed in OCS custody. And in December 2013 Kelton was placed in OCS custody after having alcohol in his system at birth.

After this second removal Dena and Dustin moved frequently between Eagle and Fairbanks and were difficult to contact. Although they participated in substance abuse assessments, the OCS caseworker said that Dustin "laugh[ed] and sa[id] that he wouldn't pass a [urinalysis]." They eventually participated in a risk assessment with a licensed clinical social worker. Dena and Dustin acknowledged their "extensive history and use of alcohol and illegal substances" and history of being "mutually physically combative." About two years into this second removal, Dena began to engage in counseling. Following a trial home visit and Dena's limited engagement in treatment, the parents regained custody of the children in April 2016.

B. Current Case Proceedings

Just two months after Dena and Dustin regained custody, OCS learned that they had been drinking and that Dustin and Shannon had been in a physical altercation. When an OCS caseworker went to Eagle to assess the situation, Dena and Dustin admitted they had been drinking; OCS thereafter implemented a new care and safety plan. The plan anticipated Dena and Dustin traveling and the children staying in Eagle. But the children's placements proved unsafe, and, although OCS attempted to work with the tribe to create a new safety plan while Dena and Dustin were away, "the tribe felt that the parents' behaviors were out of control and they could not come up with a plan to keep the children safe." OCS again took emergency custody of the children.

About a month later the tribe banished Dustin. The Eagle Village Council wrote in its banishment letter that Dustin had "broken trust and [his] word" by failing to be "on [his] best behavior and not involv[ing] [him]self in any activities that would cause [him] to lose custody of [his] children." Because OCS had removed the children "from [his] care twice in the past month and a half," the Council banished him "to ensure the health and safety of not only [his] children but Tribal members, Eagle Village Council members and Native Village of Eagle employees."

Dena and Dustin moved to Northway and infrequently communicated with OCS and their children. An OCS caseworker developed case plans for each parent in September 2016, although the plans were difficult to implement due to sporadic contact. The case plans required the parents to obtain substance abuse and psychological assessments, attend Alcoholics Anonymous meetings, and provide OCS basic contact information.

Dena and Dustin briefly returned to Eagle for the winter holiday season, but otherwise lived in Northway through summer 2017. They did not meaningfully engage in treatment during this time, but they did participate in visitation OCS arranged. After OCS filed a petition to terminate parental rights in June 2017, the parents returned to Eagle and began regularly attending counseling and treatment programs. The children's foster parent later testified that the parents attended informal visitation "[a]t least three to four times a week, some weeks more," and that they never visited while intoxicated. The foster parent testified to the "strong bond" between the children and parents.

Although Dena and Dustin were sober during visitation, they continued to abuse substances leading up to the January 2018 termination trial. In December 2017 Dustin physically assaulted Shannon; Dena attempted to intervene, and Dustin kicked her. OCS then suspended visitation with Molly and Kelton. Visitation resumed in January 2018, twice-weekly and regulated to ensure the parents were "sober and appropriate."

C. Termination Trial And Order

The termination trial took place over six days in January and March 2018. Over the parents' objection, the superior court permitted four Eagle witnesses to testify telephonically: the tribe's designated ICWA expert; a safety plan participant and former foster parent; a former Eagle public safety officer; and Molly and Kelton's then-foster parent. The court initially overruled the objection because "no objection was made at the pretrial conference." Dena's attorney observed that OCS had not filed a motion for telephonic testimony and that there had been no prior opportunity to object. The court then stated that Dena could call the witnesses in person "in [her] case if [she] so choose[s]." The court broadly ruled that the "distances here make it implicit that the Eagle witnesses are beyond ... what's contemplated by the rule." The court ruled that the Eagle witnesses could testify telephonically and stated: "If the parties want to subpoena witnesses and transport them to this court, they're free to do so." The court later clarified that "[a]ny prejudice can be remedied by the fact that there will be a two-month continuance. Any witnesses can be recalled."

The tribe's ICWA expert testified that excessive drinking and domestic violence are not tolerated by the tribe. She acknowledged that the tribe highly values families and expressed that the parents' "conduct does not match and adhere to the cultural norms of the Eagle Village." The court permitted the ICWA expert to testify about Molly's and Kelton's best interests from her "limited perspective, the cultural perspective," and it stated that the testimony would "not go to the ultimate best-interest question in this case." The ICWA expert advocated termination as being in the children's best interests, fearing that physical damage would result if the children were returned to their parents.

The safety plan participant testified that she had seen Dena and Dustin under the influence on "numerous occasions," including during a summer 2016 incident when Dustin "arrived at [her] house very under the influence" with Kelton, who "reeked of alcohol." The safety plan participant also testified about Dustin physically assaulting Shannon and described her injuries. The former public safety officer testified about his interactions with the family, recalling "screaming and yelling" and circumstances when the parents were under the influence while the children were present. Finally, the then-foster parent testified that Molly and Kelton have "strong connection[s]" with their parents. Dena and Dustin reserved their cross-examinations of both the safety plan participant and safety officer, but did not recall either to testify.

The court heard extensive testimony on whether guardianship, as opposed to termination, would be appropriate in this case. Under this alternative the foster parents would have been the children's guardians while the parents worked on treatment. Testimony conflicted whether guardianship or termination was in the children's best interests. Acknowledging that guardianship would allow visitation with the parents, the OCS caseworker expressed that it "leaves open the possibility of the parents coming back in and contesting and requesting dissolving of the guardianship on a yearly basis." The OCS caseworker also recounted Molly's strong preference against termination and adoption, noting that she had threatened to run away if her parents' rights were terminated.

Molly and Kelton's guardian ad litem (GAL) acknowledged that the parents "have shown and demonstrated appropriate parenting. They clearly have a bond with the kids." The GAL supported termination of parental rights for Kelton, as the parents "haven't been able to demonstrate stability when it comes to housing, employment, [and] where they're going to live even if they're in Eagle." But the GAL believed that guardianship would better serve Molly. The superior court asked the GAL questions about guardianship, inquiring how it could be accomplished without termination and whether there was evidence that all parties were in agreement. The court also asked the tribal representative about consequences if Molly refused guardianship.

In June 2018 the court terminated Dena's and Dustin's parental rights to Molly and Kelton. The court found that Molly and Kelton were children in need of aid based on risk of physical harm, neglect, and parental alcohol addiction. Finding that termination was in the children's best interests, the court did not expressly discuss guardianship but did acknowledge Molly's antipathy toward termination and adoption. The court stated that the "record suggests that this is a genuine preference and that [Molly] is of sufficient age and capacity to express this preference," but "[b]alanced against this preference is the complete inability of the parents to meet the children's needs and their complete inability to provide a stable satisfactory environment for the children." Ultimately the court found "no realistic other option" than terminating parental rights. The court left Molly's preference against adoption for "future proceedings."

Dena and Dustin both appeal, contending that the superior court erred by allowing the four Eagle witnesses' telephonic testimony and by determining that termination was in their children's best interests without first considering guardianship.

III. STANDARD OF REVIEW

We generally review a superior court's decision allowing telephonic testimony for abuse of discretion. But we "must disregard harmless errors that have no substantial effect on the rights of parties or on the outcome of the case." We review the factual determination whether termination of parental rights is in a child's best interests for clear error. "Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the party prevailing below leaves us 'with a definite and firm conviction that a mistake has been made.' "

IV. DISCUSSION

A. Any Error In Allowing Telephonic Testimony Was Harmless.

Dena and Dustin argue that the superior court erred by allowing the four Eagle witnesses to testify telephonically, challenging the court's alleged failure to consider whether good cause or substantial prejudice existed as Alaska Civil Rule 99(a) requires in other civil proceedings. They argue, additionally and alternatively, that allowing telephonic testimony violated their due process rights. It is not necessary for us to decide whether allowing telephonic testimony was proper statutorily or constitutionally, because we conclude that any possible error did not impact the parents' ability to present their case and was harmless.

Although in-person testimony undoubtedly "has persuasive benefits absent from testimony given out of the presence of the trier of fact," allowing telephonic testimony is not necessarily "substantial prejudice" to warrant reversal. Dena and Dustin fail to identify any trial deficiencies demonstrating that they were substantially prejudiced. They argue that the telephonic testimonies were "critical to the court's resolution of key factual and legal questions." But even assuming this assertion's truth, criticality alone is insufficient to require in-person, rather than telephonic, testimony. In other contexts we have considered whether a witness's credibility is at issue to determine if in-person testimony should be required.

Dena summarily argues in her reply brief that all four witnesses' "credibility was disputed," but she discusses only the tribal ICWA expert's credibility. Dena suggests that the ICWA expert testified based on materials Dena had not examined and that with live testimony she "could have then requested to review those materials prior to cross-examination, as opposed to waiting until after [the] testimony had concluded before being able to review them." Dena continues: "If [the ICWA expert] had testified in person, the trial court would have been able to observe how extensively [she] relied on those materials, as well as her demeanor and appearance, in determining whether and how much to credit her testimony and opinions."

But Dena failed to establish at the termination trial that the ICWA expert was, in fact, relying on documents during her actual testimony. The ICWA expert referred to "reports" she had received, but the transcript gives no indication that she was reading from documents rather than testifying from memory. Dena's attorney cross-examined the ICWA expert and established that the expert "ha[d] a file on this family," but the attorney did not clarify whether the expert had relied on that file while testifying or had reviewed it before testifying. Dena failed to establish that the expert was improperly relying on documents during her telephonic testimony and failed to object to the alleged improper reliance.

Even if the ICWA expert had improperly relied on documents, the superior court already had discounted the ICWA expert's testimony by accepting it from the "limited perspective, the cultural perspective of this witness." And even if Dena could have reviewed the ICWA expert's materials more extensively prior to cross-examination had the expert testified in person, the court allowed Dena to recall any witnesses after the trial's two-month continuance. The court stated that the "witnesses are not surprise witnesses. The facts are not surprise facts. Any prejudice can be remedied by the fact that there will be a two-month continuance." The ability to recall a witness may not mitigate potential prejudice in every case, but, even after having the chance to review the ICWA expert's materials, the parents did not recall her for cross-examination.

Dena additionally seems to recognize that evidence other than the challenged testimony may have aided the court's decision, stating, for example, that two telephonic testimonies "most directly supported" certain findings and that one was the "primary testimony" on another finding. But other than stating that the OCS caseworker's non-telephonic testimony was "brief and noncommital," Dena and Dustin ignore the multitude of other evidence presented, including certified court records, OCS reports, case plans, risk assessments, safety plans, and the tribe's letter and formal resolution of banishment. The court also heard non-telephonic testimony from former OCS caseworkers, substance abuse counselors, the tribal administrator, and the counselor who provided the parents' risk assessment.

Dena and Dustin fail to concretely explain what prejudice they sustained as a result of the witnesses' telephonic, rather than in-person, testimony. Because any alleged error did not prejudice the parties in this case, we hold that the superior court did not err by allowing this telephonic testimony.

B. The Superior Court Did Not Err By Finding That Termination Of Parental Rights Was In The Children's Best Interests.

Dena and Dustin argue that the superior court's finding that termination of their parental rights was in their children's best interests "was insufficiently supported by factual findings and was also clearly erroneous." Dena also argues that, under AS 47.10.088(a), the court was required to resolve the guardianship question prior to termination.

Alaska Statute 47.10.110 allows, but does not require, the superior court to appoint a guardian in a CINA proceeding when "it appears to the court that the welfare of a minor will be promoted by the appointment of a guardian." The superior court is required to consider guardianship in a termination of parental rights proceeding only "to the extent that the statute requires the court to order an arrangement that is in the child's best interest." The superior court "may reasonably reject a request for guardianship if such a plan would be inconsistent with a child's need for stability and protection."

Dena contends that evidence before the superior court "suggested that guardianship and retention of parental rights offered clear advantages over termination for the children." Even assuming this is accurate, the superior court at the very least implicitly considered this evidence. The superior court heard testimony whether guardianship was in Molly's and Kelton's best interests and actively questioned its merits. But the court ultimately found that termination would better serve the children. The court's termination order emphasized that Dena's and Dustin's alcohol abuse left "no hope that either parent could be made capable of parenting either child at any time in the foreseeable future." The court found that "[a]s a result of a lifetime in and out of [OCS] custody, the children have developed a special need for stability, continuity, and permanency." After weighing Molly's preference against termination, the court found that the "balance of all the factors weighs in favor of concluding that it is in the best interest of the children to terminate parental rights. There is no realistic other option. [Molly]'s preference against adoption can be addressed in future proceedings."

Contrary to Dena's suggestion, the superior court clearly considered the evidence and Molly's and Kelton's specific needs. Agreeing with the testimony supporting termination rather than guardianship does not mean that the court erred. The court heard and actively questioned testimony on guardianship, and the court implicitly considered guardianship as an option in its termination order. We therefore see no clear error in the court's decision on this issue.

We also disagree that the superior court erred by terminating parental rights before deciding whether guardianship or adoption was in the children's best interests. In Fiona P. v. State, Department of Health & Social Services, Office of Children's Services , an unreported case, we explicitly considered and rejected this same argument. We stated that "underlying this argument is the notion that if a guardianship were in the children's best interests, ... parental rights would not need termination." We noted that although the superior court may consider alternative options, we have "never expressed ... a legal requirement" that courts consider guardianship before termination.

Dena may be correct that there would be some "positive benefits for the children in maintaining a parental connection in this case," but the superior court considered those benefits in its termination order. It found "no hope that either parent could be made capable of parenting either child at any time in the foreseeable future." The court wrote detailed factual findings regarding OCS's long history with Dena and Dustin and thoroughly addressed why terminating parental rights was in the children's best interests. As OCS notes, the superior court is required to determine whether termination of parental rights is in the children's best interests; that is precisely what the court did in this case.

Dena finally argues that this court's interpretation of AS 47.10.088(a)"limits the court to terminating parental rights only where done for the purpose of facilitating or freeing the child for adoption or permanent placement." In A.B. v. State, Department of Health & Social Services we remanded a case because it was "unclear whether the superior court terminated [the parent's] parental rights 'for the purposes of freeing [the child] for adoption or other permanent placement.' " But unlike in A.B. , the superior court in this case made clear that terminating parental rights was for the purpose of establishing a permanent placement. After stating that termination was the only "realistic ... option," the court stated that Molly's "preference against adoption can be addressed in future proceedings. The current placement is well suited to [Molly] and [Kelton]. They each have significant support from the community and the tribe." The court further stated that the "positive factors associated with their current placement provide a good foundation for permanency, with or without adoption for [Molly]." The court thus terminated parental rights with an eye expressly toward the permanent placement to follow.

Reviewing the record in the light most favorable to OCS, we hold that the superior court did not clearly err by finding that termination was in the children's best interests or otherwise err in its consideration of a possible guardianship.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the superior court's termination of Dena's and Dustin's parental rights.

      We use pseudonyms to protect the family members' privacy.

      See 25 U.S.C. § 1903(4) (2012) (" 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.").

      See AS 47.10.011(8)(B), (9), (10).

      CINA Rule 3(g)(1) provides that the superior court "may conduct any hearing with telephonic participation by one or more parties, counsel, witnesses, foster parents or out-of-home care providers, or the judge." A statewide presiding judge order augments this rule, stating that "[a]ny case participants, including out-of-home care providers, grandparents, tribes, parties, counsel, witnesses or the judge, who are not physically present at the court location may participate telephonically in any CINA hearing without court approval or prior notice." Presiding Judge Administrative Order, First Judicial Dist. Admin. Order No. 16-02; Second Judicial Dist. Admin. Order No. 1602; Third Judicial Dist. Admin. Order No. 16-06; Fourth Judicial Dist. Admin. Order No. 16-02 (effective July 1, 2016) (establishing statewide procedures for telephonic participation in CINA proceedings).

      Despite this argument to the superior court, the GAL has joined in OCS's appellate brief "in full."

      See AS 47.10.011(6), (9), (10).

      Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs ., 71 P.3d 811, 817 (Alaska 2003).

      Luther v. Lander , 373 P.3d 495, 499 (Alaska 2016) (quoting Pedersen v. Blythe , 292 P.3d 182, 184 (Alaska 2012) ); see also Alaska R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."); CINA Rule 1(e) (applying Civil Rule 61 to CINA proceedings).

      Theresa L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 353 P.3d 831, 837 (Alaska 2015).

      Barbara P. v. State, Dep't of Health & Soc. Servs. , Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010) (quoting Brynna B. v. State, Dep't of Health & Soc. Servs. , Div. of Family & Youth Servs. , 88 P.3d 527, 529 (Alaska 2004) ).

      Compare Alaska R. Civ. P. 99(a) (permitting telephonic participation in civil proceedings by "one or more parties, counsel, witnesses, or the judge ... in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties"), with CINA Rule 3(g)(1) (providing superior court "may conduct any hearing with telephonic participation by one or more parties, counsel, witnesses, foster parents or out-of-home care providers, or the judge").

      See Sarah A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 427 P.3d 771, 780 (Alaska 2018) (alterations in original) (quoting D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 210 (Alaska 2000) ) (noting we have "denied due process claims where a parent failed to identify any 'plausible' basis for finding prejudice or did not theorize about how the requested procedural safeguard might 'potentially alter[ ] the findings about ... parental conduct' ").

      Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles , 20 P.3d 1130, 1137 (Alaska 2001). Other courts have recognized that in-person testimony aids in evaluating witness credibility, establishing witness identity, impressing formalities upon the witness, assuring no outside influences exist, and assuring no documents are referred to improperly. See, e.g. , Bonamarte v. Bonamarte , 263 Mont. 170, 866 P.2d 1132, 1134 (1994) ; Kelly v. Kelly , 445 S.W.3d 685, 694 (Tenn. 2014).

      See Alaska R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."); CINA Rule 1(e) (applying Civil Rule 61 to CINA proceedings); see also Mary E. v. State , No. S-10705, 2003 WL 22994469, at *10 (Alaska Dec. 17, 2003) ("[Appellant's] examples [of prejudice from telephonic testimony] do not demonstrate 'substantial prejudice.' No doubt she was inconvenienced, but the court made substantial efforts to mitigate that inconvenience.").

      See, e.g. , Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 71 P.3d 811, 832 (Alaska 2003) (concluding denial of prisoner's request for transportation to attend his termination of parental rights trial did not violate his due process rights in part because his "credibility was not at issue on any material matter and therefore that any value added by in-person testimony ... would have been negligible"); cf. In re Hospitalization of Jacob S. , 384 P.3d 758, 765 (Alaska 2016) (concluding that appellant was not prejudiced by telephonic testimony in part because he did not challenge witness credibility).

      Alaska Statute 47.10.088(a) provides that parental rights "may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds by clear and convincing evidence that" the child is a child in need of aid, that the parent has not remedied the conduct that made the child in need of aid, and that OCS has made reasonable reunification efforts.

      Doug Y. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. , 243 P.3d 217, 229-30 (Alaska 2010) (quoting C.W. v. State, Dep't of Health & Soc. Servs. , 23 P.3d 52, 57 (Alaska 2001) ).

      Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 329 P.3d 980, 987 (Alaska 2014).

      See Doug Y., 243 P.3d at 229-30 (holding that superior court "did not err in terminating parental rights and not establishing a guardianship" because it "implicitly rejected the guardianship proposal" in its best interests analysis); C.W. , 23 P.3d at 57 (holding that court properly terminated parental rights rather than institute guardianship after court "implicitly rejected the guardianship proposal").

      See Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 289 P.3d 924, 933 (Alaska 2012) ("Merely because the superior court reached a different conclusion than [the parent] desired does not constitute legal error.").

      No. S-16301, 2017 WL 729765, at *2 (Alaska Feb. 22, 2017).

      Id.

      Id.

      7 P.3d 946, 953-54 (Alaska 2000) (quoting AS 47.10.088(a) ).

      See AS 47.10.088(a).

      See Barbara P. v. State, Dep't of Health & Soc. Servs. , 234 P.3d 1245, 1253 (Alaska 2010) (stating we review fact findings in light most favorable to party prevailing below).


source: Caselaw Access Project

license: Public Domain

text:
    Elias ROBINSON, Appellant, v. ALASKA HOUSING FINANCE CORPORATION, Appellee.
    Supreme Court No. S-17055
    Supreme Court of Alaska.
    June 14, 2019
    Elias Robinson, pro se, Anchorage, Appellant.
    Jonathan P. Clement, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

A self-represented litigant appeals from the dismissal of his complaint against Alaska Housing Finance Corporation (AHFC) for failure to state a claim upon which relief could be granted. Because the superior court gave the litigant multiple opportunities to amend his complaint before it correctly concluded that all of his claims were either time-barred, subject to a res judicata defense, or inadequately pleaded, we affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

Elias Robinson appeals from the dismissal of his 2016 complaint against AHFC. Because his complaint refers to previous administrative and superior court proceedings, relevant history is summarized below in Subsections A-C. Subsection D describes the superior court proceedings from which Robinson appeals.

A. 2009 Landlord-Tenant Litigation

Robinson and his family rented an Anchorage apartment from the Johnsons. Robinson's daughter was bitten by another tenant's dog in June 2008. The Robinsons' relationship with the Johnsons soured quickly thereafter. The Johnsons asked the Robinsons to pay for repairing damage to their apartment, and the Robinsons disagreed that they were responsible. The parties mutually agreed to a termination of the Robinsons' tenancy, and they moved out in January 2009.

Robinson's wife then sued the Johnsons for the daughter's dog-bite-related injuries. The Johnsons counterclaimed for the alleged apartment damage. The superior court dismissed the Robinsons' personal injury claim and entered judgment in the Johnsons' favor on their property damage counterclaim in September 2009. Robinson and his wife subsequently filed for bankruptcy protection, and the judgment debt was discharged.

B. 2010 To 2011 Housing Voucher Termination

When the Robinsons lived in the Johnsons' apartment, AHFC paid part of their monthly rent through a federal housing voucher program. After the Johnsons were awarded judgment on their property damage claim, AHFC notified the Robinsons that they were being terminated from the program for failure to comply with its terms because they had damaged their apartment. The Robinsons requested an administrative review, and in December 2009 an AHFC hearing officer affirmed the Robinsons' housing benefit termination. The Robinsons then requested an informal hearing.

At the informal hearing two AHFC employees testified that it was AHFC's policy to terminate a family from the voucher program if a landlord obtained a judgment against the family for damaging an apartment. The Robinsons argued that because the judgment against them had been discharged in bankruptcy, AHFC could not rely on the judgment to terminate them from the voucher program. AHFC's hearing officer disagreed and upheld the termination in September 2010.

Robinson, with attorney assistance, appealed AHFC's administrative determination to the superior court in October. The appeal was stayed in November for AHFC to consider possible mitigating circumstances in the Robinsons' case. The superior court ordered AHFC to keep the Robinsons' subsidy in place while reconsidering the termination decision. At a subsequent hearing the Robinsons presented evidence of medical problems they had had during their tenancy. In March 2011 an AHFC hearing officer again upheld AHFC's termination decision, concluding that the Robinsons had failed to demonstrate mitigating circumstances that would excuse damaging or failing to maintain the apartment.

In August Robinson's attorney withdrew as counsel in the superior court appeal of AHFC's decision. In September 2011 Robinson and AHFC agreed to dismiss the appeal with prejudice.

C. 2011 Eviction Action

While the Robinsons were appealing AHFC's housing voucher termination, they resided in an Anchorage apartment owned by T. McGlohn. In January 2011 McGlohn initiated an eviction action against them, alleging nonpayment of rent. The Robinsons answered, claiming as an affirmative defense that AHFC had failed to pay part of its portion of the rent.

Trial was held over the course of three days in November 2012 and May 2013. McGlohn called AHFC's housing specialist to testify on his behalf on the first day. She apparently testified about the Robinsons' housing voucher being terminated for failure to comply with program rules. The district court ultimately entered judgment for McGlohn in November 2013.

The Robinsons appealed the district court's decision to the superior court in December. The Robinsons appear to have prevailed on appeal at least in part; jurisdiction was returned to the district court in January 2015. The case apparently was settled in December and the court vacated a scheduled trial. The parties then stipulated to dismiss the case with prejudice in February 2016.

D. 2016 Complaint Against AHFC

In October 2016 Robinson filed a one-page complaint against AHFC. Read liberally, the complaint appears to bring four claims: (1) AHFC improperly terminated Robinson's housing choice voucher; (2) Robinson did not receive a fair hearing from AHFC regarding the voucher termination; (3) Robinson's wife would not have had judgment entered against her for damage to the Johnsons' apartment if AHFC had completed necessary inspections and walk-throughs that would have shown the Robinsons had not, in fact, damaged the apartment; and (4) AHFC employees' testimony at McGlohn's eviction action "secur[ed] the termination of [the Robinsons'] housing voucher."

After considerable wrangling about service of process and Robinson's efforts to obtain entry of default against AHFC, the court ordered AHFC to answer Robinson's complaint. AHFC instead filed a motion to dismiss, arguing that Robinson's complaint failed to state a claim upon which relief could be granted.

AHFC interpreted Robinson's claims as arising entirely out of its housing voucher termination, the litigation of which had concluded in 2011 when the parties stipulated to dismiss the superior court appeal with prejudice, and AHFC thus asserted that Robinson's claims were barred by the statute of limitations and the doctrine of res judicata. AHFC argued that if Robinson had tort claims, the statute of limitations was two years and that if Robinson had contract claims, the statute of limitations was three years. Robinson opposed AHFC's motion, arguing that AHFC's failure to file an answer entitled him to a default judgment. He also seemed to contend that the statute of limitations had not yet run because McGlohn's eviction case had not concluded until February 2016.

The court rejected Robinson's default judgment argument, concluding that AHFC had timely responded to the court's orders and that any delay was insignificant and had not prejudiced Robinson. The court then directed Robinson to file a supplemental opposition providing a "clearer and more definite statement of what action or inaction by AHFC he believes was wrong" and explaining why he should not be "barred from renewing the action he agreed to dismiss with prejudice in 2011."

Robinson filed a timely supplemental statement, asserting that his complaint was "not about what happened at [the] time [his voucher was terminated,] it is about what has been happening since then." He appeared to claim that AHFC and its employees who had testified at the voucher termination hearing harmed him by: (1) testifying against him in McGlohn's eviction action; (2) causing Cook Inlet Housing Authority to deny his rental application; (3) interfering with his apartment-hunting process in other unspecified ways; and (4) wrongfully terminating his housing voucher, causing him to have to pay more rent than he otherwise would have.

AHFC responded that Robinson still had not presented a claim upon which relief could be granted. AHFC had "little doubt" that Robinson continued to suffer the consequences of the housing choice voucher termination, but it argued that despite those consequences, Robinson could "not escape the legal bar" imposed by the 2011 stipulation dismissing his appeal with prejudice.

The court largely agreed with AHFC and granted its motion to dismiss "to the extent [Robinson] raises or attempts to raise any complaint regarding conduct of AHFC or its employees in 2011 or earlier." But the court gave Robinson one more opportunity to amend his complaint to supply more detail about his claims related to AHFC's testimony against him and its efforts to interfere with his housing applications. The court warned Robinson that if he failed to file a motion to amend his complaint and a proposed amended complaint complying with the court's order, his case would be dismissed.

Robinson responded with a "[m]otion not to dismiss 2011 or ... 2009 events by AHFC," reiterating his claims about AHFC's failure to conduct required inspections or walk-throughs, its termination of his housing voucher, its alleged testimony against him in the eviction case, and its role in Cook Inlet Housing Authority denying his rental application in 2013. AHFC opposed the motion, pointing out that all of the dates Robinson referenced were outside the statutes of limitations for tort and contract claims.

In March 2018 the superior court dismissed all of Robinson's claims with prejudice. The court stated that Robinson had "failed to show why he should not be bound by his 2011 agreement and ha[d] not shown any basis for a complaint regarding events occurring after the 2011 agreement."

Robinson appeals.

III. STANDARD OF REVIEW

We review a superior court's "grant of a motion to dismiss a complaint for failure to state a claim under Alaska Civil Rule 12(b)(6)... de novo." We also review de novo whether a claim is within an applicable statute of limitations or whether res judicata applies.

IV. DISCUSSION

A. Legal Standards And Robinson's Claims

"In reviewing a Rule 12(b)(6) dismissal, we liberally construe the complaint and treat all factual allegations in the complaint as true." And we also "liberally" construe the claims of self-represented litigants like Robinson. Rule12(b)(6)dismissals should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief."

Based on a liberal reading of Robinson's filings, we have identified six potential claims: (1) AHFC's failure to conduct required inspections of the apartment the Robinsons rented from the Johnsons resulted in the Johnsons' September 2009 judgment and the Robinsons' subsequent bankruptcy; (2) AHFC wrongfully terminated the Robinson family's housing voucher benefit; (3) AHFC's voucher termination appeal procedures did not comply with due process; (4) AHFC wrongfully caused the Robinsons' Cook Inlet Housing Authority rental application to be denied; (5) AHFC wrongfully interfered with the Robinsons' housing search in other ways; and (6) AHFC harmed the Robinsons when its employees testified against them in the McGlohn eviction action. Because we conclude that all of these claims were either time-barred, barred by the doctrine of res judicata, or inadequately pleaded, we agree with the superior court that Robinson failed to state a claim upon which relief could be granted.

B. Three Claims Are Clearly Outside The Applicable Statute Of Limitations .

"Failing to file a complaint within the time set out by a statute of limitation is a ground for dismissal under Rule 12(b)(6)." In Alaska tort claims must be brought within two years of the cause of action's accrual and contract claims must be brought within three years. Although in some cases "the statute of limitations does not begin to run until the plaintiff discovers, or reasonably should discover, the existence of all the elements of his or her cause of action," Robinson made no argument that he was not aware of his claims when they accrued.

1. AHFC's alleged failure to conduct required inspections

Robinson contends that AHFC's failure to conduct required inspections of the Johnsons' apartment resulted in his wife's inability to defend against the Johnsons' counterclaim for damages and the subsequent judgment in their favor. Putting aside that Robinson's wife is not a party to this case, this claim is untimely. The Robinsons moved out of the Johnsons' apartment in January 2009; the Johnsons obtained the judgment for damages to the apartment in September 2009. Robinson should reasonably have discovered the existence of all the elements of any cause of action by September 2009, at the latest. Because he did not file his claim for over seven years, the superior court properly dismissed it as untimely.

2. AHFC employees' alleged wrongful testimony against Robinson

Robinson alleges AHFC harmed him when its employees testified against him in McGlohn's eviction case. To the extent Robinson is arguing he was defamed or that AHFC committed some other tort by way of the testimony, such a claim accrued when the testimony occurred in November 2012, more than three years before Robinson filed his complaint. The superior court thus properly dismissed the claim as untimely.

3. AHFC's alleged role in Cook Inlet Housing Authority's denial of Robinson's rental application

Robinson alleges that AHFC was responsible for his housing application being denied by Cook Inlet Housing Authority in February 2013. This denial occurred more than three years before Robinson filed his complaint; the superior court thus properly dismissed the claim as untimely.

C. Two Claims Are Clearly Barred By Res Judicata.

Although res judicata typically is an affirmative defense, it can be raised in a motion to dismiss a complaint for failure to state a claim upon which relief could be granted. We give a judgment res judicata effect "when it is (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action." For purposes of the first requirement, "a dismissal with prejudice is treated as a dismissal on the merits and is, therefore, a final judgment on the merits." For purposes of the last requirement, the "same cause of action" includes "[n]ew claims arising from 'the same transactions as those in the first suit.' "

Robinson's claims that AHFC wrongfully terminated his housing voucher and that it denied him due process when he appealed the termination both are barred by res judicata. Robinson stipulated to dismiss his appeal of AHFC's termination decision with prejudice in 2011. Dismissal with prejudice operates as a final judgment on the merits for res judicata purposes, it was entered by a court of competent jurisdiction, and it was between the same parties as this case, Robinson and AHFC. Robinson's wrongful housing voucher termination claim was directly at issue in his previous case against AHFC, and whether its procedures complied with due process arises out of the same transaction. We thus conclude that the superior court properly granted AHFC's motion to dismiss those two claims.

D. Robinson's Claim Regarding AHFC's Other Housing-Search Interference Was Inadequately Pleaded.

Alaska Civil Rule 8(a) requires a complaint to contain "(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks." Alaska has "liberal pleading rules." Plaintiffs must present only "a brief statement that 'give[s] the defendant fair notice of the claim and the grounds upon which it rests.' " But Robinson made only a vague and non-specific statement alleging AHFC interfered with his attempts to find housing, and his complaint does not give AHFC "fair notice" of the grounds for his claim.

Robinson stated in response to AHFC's motion to dismiss that he "was homeless for about a year because of [AHFC] interfering in [his] process of [apartment] hunting." The only specific example he pointed to was alleging that an AHFC employee told Cook Inlet Housing Authority not to rent to the Robinsons. As noted in Subsection C, that claim is outside the statute of limitations. Beyond that allegation, Robinson provided no details about how or when AHFC interfered in his apartment search.

AHFC would be hard-pressed to mount a defense to this claim because it is unclear what Robinson alleges it did. We conclude that the superior court properly dismissed the claim for failure to state a claim upon which relief could be granted.

V. CONCLUSION

The superior court's decision is AFFIRMED.

      See Alaska R. Civ. P. 12(b)(6) (authorizing, prior to answer, filing motion to dismiss complaint for failure to state claim upon which relief could be granted).

      See AS 09.10.070(a).

      See AS 09.10.053.

      Clemensen v. Providence Alaska Med. Ctr. , 203 P.3d 1148, 1151 (Alaska 2009).

      See Richardson v. Municipality of Anchorage , 360 P.3d 79, 84 (Alaska 2015) (quoting Brotherton v. Brotherton , 142 P.3d 1187, 1189 (Alaska 2006) ).

      Patterson v. Infinity Ins. Co. , 303 P.3d 493, 497 (Alaska 2013) (quoting Smith v. CSK Auto, Inc. , 132 P.3d 818, 820 (Alaska 2006) ).

      Patterson v. Walker , 429 P.3d 829, 831 (Alaska 2018) (quoting Bachner Co. v. State , 387 P.3d 16, 20 (Alaska 2016) ).

      Id. (quoting Barber v. Schmidt , 354 P.3d 158, 162 (Alaska 2015) ).

      Clemensen , 203 P.3d at 1151 (quoting Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 177 P.3d 1181, 1184 (Alaska 2008) ).

      Robinson appears also to contend that, as a procedural matter, the superior court erred by not having an in-person hearing on AHFC's motion to dismiss. But Robinson never requested such a hearing.

      Jackson v. Municipality of Anchorage , 375 P.3d 1166, 1170 (Alaska 2016).

      AS 09.10.070(a).

      AS 09.10.053.

      Hutton v. Realty Execs., Inc. , 14 P.3d 977, 980 (Alaska 2000).

      At oral argument to us, Robinson alleged that his claims were timely under a federal statute, 28 U.S.C. § 1658(a) (2012). Section 1658(a) provides a four-year statute of limitations for actions arising under federal law. See id. Because Robinson did not plead any federal causes of action, the statute is inapplicable to his claims.

      See AS 09.10.053, .070(a).

      See McCutcheon v. State , 746 P.2d 461, 464 (Alaska 1987) ("The statute [of limitations in a defamation action] begins to run upon 'publication' of the allegedly defamatory statements." (quoting Chiei v. Stern , 561 P.2d 1216, 1217 (Alaska 1977) )).

      See AS 09.10.070(a).

      See AS 09.10.053, .070(a).

      See 61A Am. Jur. 2d Pleading § 334 ("[R]es judicata is an affirmative defense that is generally pleaded in a defendant's answer, but is also properly brought in a preanswer motion to dismiss for failure to state a claim upon which relief can be granted when all relevant facts are shown by the court's own records, of which the court takes notice, or if it is clear from the face of the complaint that the plaintiff's claims are barred as a matter of law." (internal citations omitted)).

      Patterson v. Infinity Ins. Co. , 303 P.3d 493, 497 (Alaska 2013) (quoting Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) ).

      Smith v. CSK Auto, Inc. , 132 P.3d 818, 820 (Alaska 2006).

      Id. at 820-21 (quoting Alderman v. Iditarod Props., Inc. , 104 P.3d 136, 141 (Alaska 2004) ).

      See id. at 820.

      See id. at 821 (quoting Alderman , 104 P.3d at 141 ).

      Alaska R. Civ. P. 8(a).

      See Griffith v. Taylor , 937 P.2d 297, 307 (Alaska 1997).

      Alaska Commercial Fishermen's Mem'l in Juneau v. City & Borough of Juneau , 357 P.3d 1172, 1178 (Alaska 2015) (alteration in original) (quoting Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co. , 45 P.3d 657, 673 (Alaska 2002) ).


text:
    JESSICA J., a Minor, Appellant, v. STATE of Alaska, Appellee.
    Supreme Court No. S-17246
    Supreme Court of Alaska.
    June 14, 2019
    Diana Wildridge, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
    Aisha Tinker Bray, Assistant Attorney General, Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

The Interstate Compact for Juveniles (ICJ) governs the return of juveniles who have left their home states without permission. With her mother's permission, a juvenile left her home state to visit family friends in Alaska; she then refused to return home. The home state sought her return under the ICJ, and the Alaska superior court complied. The superior court found that it was not authorized to consider the juvenile's best interests and that the requisition paperwork demonstrated proof of entitlement for her return. We affirm the superior court's order, holding that the ICJ authorizes only the home state to consider a juvenile's best interests in this context and that proof of entitlement was established in this case.

II. FACTS AND PROCEEDINGS

In late April 2018, 15-year-old Jessica J. traveled from Iowa to Alaska to spend the summer with family friends. Jessica's divorced parents shared legal custody; her mother, who retained primary physical custody, gave Jessica permission. Jessica's mother then changed her mind and told Jessica to return home. Jessica's mother booked several return flights for Jessica, the final on May 30.

On May 30 Jessica's mother reported to Iowa police that the Alaska family friends refused to send Jessica home; the police treated Jessica as a missing person. Alaska police located her at the family friends' home and indicated she was "safe until [her] mother c[ould] pay for plane fare out of Alaska." But the Iowa police still considered Jessica a missing person, and a week later Alaska police located her at a shelter, where she apparently had gone to avoid getting "the family that she was staying with in trouble if there were legal repercussions ... for staying in Alaska." Police transported her to a youth facility pending further legal proceedings.

The following day the State petitioned the Alaska superior court to "commence AS 47.15 Interstate Compact for Juvenile proceedings." The superior court appointed counsel for Jessica and held five hearings on the matter. At the first hearing, the court appointed a guardian ad litem (GAL) for Jessica. The court acknowledged, but did not consider, a petition for a domestic violence protective order that Jessica's father, who also lived in Alaska, had filed on her behalf against her mother.

At the second hearing, the superior court dismissed the father's petition for a domestic violence protective order, but it noted that it would consider a new petition if Jessica's "attorney and/or her GAL now determine that she should have a [domestic violence] order." The court stated that "if, in fact, the mother started this on a false basis, which is that [Jessica] was missing or a runaway, that could affect whether or not the requisition from Iowa is, in fact, in order." The court also stated that if Jessica were returned to Iowa, there were "avenues other than living at home down there. And, in fact, [her] father could file for change of custody or whatever else he might think is appropriate for him to do."

Before the next hearing, Jessica's mother filed a petition and supporting documents in the Iowa court seeking Jessica's forced return under ICJ Rule 6-103(3). The Iowa court filled out the responsive paperwork, which included a finding that Jessica "has run away; and that [Jessica's] continued absence from legal custody and control is detrimental to the best interest of [Jessica] and the public." Iowa's ICJ office sent the required paperwork to Alaska's attorney general, who, in turn, notified the superior court and requested a hearing.

At the third hearing, the superior court formally notified Jessica of the requisition per ICJ Rule 6-103(6). There was significant debate whether the ICJ applied, and the court believed that Jessica should "have the opportunity ... to present evidence to a court" that she should not be sent back. Noting mixed authority on whether holding states may consider a juvenile runaway's best interests before ordering return, the court stated that "there is good reason to have the hearing held." At the fourth hearing, the superior court denied the order to enforce the requisition, in part due to concerns about it being based on false information regarding whether Jessica was missing. The court ordered additional briefing on relevant case law and how to proceed.

By the fifth hearing, in September, the superior court judge assigned to the case had retired; the newly assigned judge found that Jessica was subject to the ICJ as a runaway. The court concluded that "there is no authority for this court to conduct a best-interests hearing" and that it would conduct a hearing only to determine whether the requisition paperwork was in order. At the final hearing, the superior court determined there was proof of entitlement and ordered Jessica's forced return to Iowa.

Jessica appeals, arguing that the superior court erred by failing to consider her best interests as part of the ICJ requisition proceeding and by finding there was proof of entitlement for her return to Iowa.

III. STANDARD OF REVIEW

"We use our independent judgment to review matters of ... statutory interpretation." And we do so "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."

IV. DISCUSSION

A. The ICJ Does Not Authorize The Holding State To Conduct A Best-Interests Analysis Before Ordering A Juvenile Runaway's Return.

1. The ICJ's plain language does not authorize the holding state to consider a juvenile runaway's best interests.

The ICJ governs the transportation of juveniles across state lines. Nearly every state has adopted some version of the ICJ. The ICJ declares that compacting states "recognize that each state is responsible for the proper supervision or return of juveniles ... who have absconded, escaped, or run away." These states "also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence."

ICJ Rule 6-103 governs the non-voluntary return of runaways. This rule provides that the runaway juvenile's legal guardian "shall petition the court of jurisdiction in the home/demanding state for a requisition." If the home state judge determines, among other things, "that said juvenile's continued absence from legal custody and control is detrimental to the best interest of said juvenile and the public," the judge completes a Form I Requisition for Runaway Juvenile. The form and requisition packet then are forwarded to the holding state, and the "court in the holding state shall inform the juvenile of the demand made for his/her return and may elect to appoint counsel or a [GAL]." The "purpose of said hearing is to determine proof of entitlement for the return of the juvenile." Although the ICJ rules do not define "proof of entitlement," if it "is not established, the [holding state] judge shall issue written findings detailing the reason(s) for denial."

ICJ Rule 6-105 concerns the return of juveniles when there are reports of abuse or neglect. Under that section:

When a holding state has reason to suspect abuse or neglect by a person in the home/demanding state, the holding state's ICJ Office shall notify the home/demanding state's ICJ Office of the suspected abuse or neglect. The home/demanding state's ICJ Office shall work with the appropriate authority and/or court of competent jurisdiction in the home/demanding state to affect the return of the juvenile. ... Allegations of abuse or neglect do not alleviate a state's responsibility to return a juvenile within the time frames in accordance with the rules.[ ]

Jessica argues that "[a]lthough not explicit, the ICJ's current language indicates that an inquiry into best interests is required" by the holding state. She argues that the ICJ allows the superior court to appoint a GAL whose "role in any case is to investigate and inform the court of the child's best interest." She argues that the GAL's role, read in conjunction with the holding state's requirement to conduct a hearing on proof of entitlement, "indicate[s] that a [holding state] court may take into consideration the juvenile's best interest."

But as the State notes, "[a]ppointment of a [GAL] is not mandatory." ICJ Rule 6-103(6) provides that the holding state "may elect to appoint counsel or a [GAL]." (Emphasis added.)

Based on this specific wording, not only is a GAL not required, the GAL's role in protecting a juvenile's best interests would be the same as counsel's; representation, by counsel or GAL if the court elects to appoint either, is limited to contesting whether proof of entitlement has been established.

Further, the ICJ accounts for the holding state's concerns about the juvenile's best interests, mandating that "[w]hen a holding state has reason to suspect abuse or neglect by a person in the home/demanding state, the holding state's ICJ Office shall notify the home/demanding state's ICJ Office of the suspected abuse or neglect." After the holding state reports its suspicions, the "home/demanding state's ICJ Office shall work with the appropriate authority and/or court of competent jurisdiction in the home/demanding state to affect the return of the juvenile" to the legal guardian. The ICJ mandates that "[a]llegations of abuse or neglect do not alleviate a state's responsibility to return a juvenile within the time frames in accordance with the rules." The holding state thus must alert the home state when there are suspicions of abuse or neglect, but the home state is the proper forum to address those concerns.

Finally, under the expressio unius canon of statutory construction, the ICJ's requirement that the home state consider a juvenile's best interests, without also providing that the holding state consider the same, implies that the holding state should not also conduct the inquiry. The juvenile's best interests are not overlooked; the home state expressly must find, albeit in a standardized form, that "said juvenile's continued absence from legal custody and control is detrimental to the best interest of said juvenile and the public."

Based on this plain language, we find unpersuasive Jessica's argument that "the ICJ's current language indicates that an inquiry into best interests is required" by the holding state and that "a trial court must consider a non-delinquent juvenile's best interests prior to ordering the juvenile's requisition."

2. Legislative history also indicates that the holding state is not authorized to consider a juvenile runaway's best interests.

Jessica argues that ICJ changes indicate the holding state must consider a juvenile runaway's best interests. She contends that "[b]efore the Alaska legislature restructured [its version of the ICJ] in 2009, the statute included language providing for a court to consider a child's best interest" and that no legislative history exists indicating "that the Alaska legislature intended to prohibit Alaska courts from considering a child's best interest as part of their considerations under the ICJ."

Although Jessica is correct that prior ICJ language explicitly mandated considering a juvenile's best interests, that mandate has always been directed to the home state in ordering a requisition, not to the holding state complying with a requisition. Alaska initially adopted the ICJ in 1960; a revised version was adopted in 2009. According to legislative staff, the new version "replace[d] the old [ICJ] which was created in 1955.... The new [ICJ] ensures that all states will have identical language in their statutes which would help with compliance issues."

To ensure uniformity among compacting states, the newly established Interstate Commission, rather than individual states, would be responsible for creating and amending ICJ language.

Although the governing body for language changed, the substantive requirement that the home state consider the juvenile's best interests did not. The original 1955 version of the ICJ, which governed in Alaska from 1960 through 2009, explicitly placed the burden of determining the juvenile's best interests on the home state. The text provided that after the legal guardian petitioned the home court, the home court judge could "hold a hearing thereon to determine whether for the purposes of [the ICJ] the petitioner is entitled to the legal custody of the juvenile, ... and whether or not it is in the best interest of the juvenile to compel his return to the state." Although a hearing was not required, home state approval of a requisition required a finding that return was "in the best interest and for the protection of such juvenile."

The ICJ's current version maintains the requirement that the home state court consider the juvenile's best interests, relocating the mandate from the ICJ's substantive text to the form the home state is required to sign before presenting the requisition paperwork to the holding state. As the State contends, "[i]t was and remains the home state's responsibility or purview to determine the status of its juvenile resident .... Nothing in the ICJ [a]rticles or [r]ules has shifted or added this obligation to the asylum state." And although the "omission of the 'best interests' language was not a targeted revision," as Jessica argues, Alaska, as a holding state, has never had statutory authority to consider a juvenile's best interests as part of ensuring proof of entitlement, and nothing in Alaska's or the ICJ's legislative history suggests otherwise.

3. Neither case law from other jurisdictions nor policy considerations compels a different result.

Jessica makes several additional arguments why holding states should consider a juvenile's best interests before ordering return. She first points out that "cases from various other jurisdictions ... support the position that a child be afforded a best interest consideration." As she notes, courts in Montana, New York, Washington, and West Virginia have required the holding state to consider a juvenile's best interests. But courts in North Carolina, Oregon, Pennsylvania, and Texas have ruled otherwise.

We are persuaded by the Pennsylvania Supreme Court's analysis in In the Interest of C.P. , leading it to hold that the ICJ's "intent was that the requisitioning state, alone, should be charged with the duty of making findings regarding the juvenile's best interests." The court noted that this "conclusion comports with the logical notion that, in the usual case, it will be the requisitioning state that has the more significant, established, and longer-term contacts with the runaway child, thus placing it in a better position to bring evidence to bear on the question of the juvenile's best interests." Highlighting the ICJ's focus on expedited return of juvenile runaways, the court stated that "the need for inconvenient and duplicitous determinations of the best-interests issue was one of the obstacles that the [ICJ] was no doubt designed to eliminate." The court noted the "salient goal" of the ICJ to "promote interests in reciprocity and cooperation among the participating states" and stated:

The furtherance of those interests is dependent upon each participating state recognizing that sister sovereign states display no less jurisprudential excellence in dealing with issues involving the interests of runaway children. Deference to the best-interests determination of the requisitioning state is, therefore, an integral part of the scheme, and is a reason for having made mandatory an asylum state's return of juveniles that are subject to valid requisition orders.[ ]

The court concluded that the ICJ provides for a hearing which "allow[s] challenges to the legality of the proceedings as a matter of right" and that "litigation may address matters of whether the form and contents of the requisition are in compliance, ... [but] it does not encompass relitigation of the best-interests issue that is properly in the realm of the requisitioning forum."

We agree with the Pennsylvania court and note that the ICJ's "Bench Book for Judges" confirms this interpretation, providing that "[a]lthough it generally has been held that a runaway is entitled to a hearing prior to being returned to the custodial state, the nature of the hearing need not rise to the level of a full due process hearing."

Considering other policy, Jessica argues that "Alaska courts routinely consider a child's best interest as part of any proceeding involving the placement of non-delinquent children." Comparing this case to parental custody and child in need of aid cases, Jessica argues that Alaska should conduct a best-interests inquiry in ICJ cases for consistency. But, as the State aptly notes, a case under the ICJ implicates different concerns than does a custody or child in need of aid case. It is not up to the holding state to determine the juvenile runaway's ultimate placement; that question is reserved for the home state, which "shall follow its procedures for reporting and investigating allegations of abuse or neglect of juveniles." Again, it is not that the juvenile runaway's best interests never will be considered; rather, they will be considered in the home state's own proceedings. As a matter of policy, it is not necessary for the holding state to conduct its own best-interests analysis.

Jessica also argues that, in her case, the "Alaska court [is] in the best position to conduct best interest inquiries." She argues that "Alaska courts are much better poised to consider" her best interests because she "is subject to an Alaska custody order, and because there is an ongoing custody dispute between [her] parents" in Alaska courts. It may be that in this particular case Alaska has a substantial amount of information about Jessica and her parents, but this is not a reason to second-guess Iowa's determination that her best interests would be served by her return. As the Pennsylvania Supreme Court concluded in C.P. , the "salient goal" of the ICJ is "to promote interests in reciprocity and cooperation among the participating states." That goal, which Alaska's legislature has adopted by implementing the ICJ, cannot be accomplished unless "each participating state recogniz[es] that sister sovereign states display no less jurisprudential excellence in dealing with issues involving the interests of runaway children."

Not conducting a best-interests analysis under the ICJ will neither strip Alaska's courts of the ability to rule in the parents' custody litigation nor take away Jessica's opportunity to challenge her mother's actions in Iowa courts. Second-guessing the analysis could lead to interstate discord, which would not further the ICJ's goal of uniformity and trust in other court systems. Although Alaska may have sufficient knowledge about Jessica's best interests in this particular case, this would be the exception and not the rule.

Jessica also asserts that "the ICJ does not provide an opportunity for the child to seek recourse once she is returned." This is inaccurate; she will have the same recourse as any other child whose custody is with an allegedly abusive parent. As the superior court noted at its second hearing, when Jessica is returned to Iowa there will be "avenues other than living at home down there. And, in fact, [her] father could file for change of custody or whatever else he might think is appropriate for him to do." If Jessica or others believe that her best interests are not served by being in her mother's legal or physical custody, the proper forum to litigate that issue is in the custody case, not in this ICJ proceeding.

4. Conclusion

The Iowa court found that it was in Jessica's best interests to be returned to Iowa. The ICJ does not give the holding state authority to make that determination. We therefore affirm the superior court's determination that it could not consider Jessica's best interests as part of the ICJ requisition proceeding.

B. The Superior Court Did Not Err By Finding Proof Of Entitlement Existed.

Jessica argues that the superior court erred by finding there was proof of entitlement, for two reasons. She first argues that the court erred by relying solely on the Alaska ICJ Administrator's testimony that the paperwork was in order, without allowing Jessica to present her own evidence. She also argues that the underlying missing person's report was fraudulent, necessarily tainting the requisition paperwork. Both arguments lack merit.

Under ICJ Rule 6-103(3)(a), a petition for the non-voluntary return of a juvenile runaway must state the juvenile's name and birthday, as well as the petitioner's "basis of entitlement to the juvenile's custody, the circumstances of his/her running away, his/her location at the time application is made, and other facts showing that the juvenile is endangering his/her own welfare or the welfare of others and is not an emancipated minor." The petition must be verified by affidavit and accompanied by certified copies of documents establishing the entitlement claim. After "it is determined that the juvenile should be returned, the judge in the home/demanding state shall sign" the requisition paperwork.

Jessica's argument that she was not allowed to present evidence rebutting Alaska's ICJ Administrator's testimony is inaccurate. Before hearing testimony on proof of entitlement, the superior court stated that the "parties have an opportunity, if they want to present any argument, that the requisition is not in order." The court did not allow Jessica's mother to testify, stating that "[t]here is no requirement under the ICJ for a parent to testify to whether paperwork is in order. That's a determination made by the Interstate Compact Administrator." The court then called on Alaska's ICJ Administrator, who stated that, under ICJ Rule 6-103, the requisition contained each of the required elements and that it had been reviewed by both an Iowa judge and Iowa's ICJ office prior to Alaska's "receipt and review of that document." The court found "the requisition is in order" and asked Jessica's counsel and GAL if they had anything to add.

The GAL then discussed, at some length, that the mother's original missing person's report was fraudulent because Jessica was not actually missing. The superior court impliedly found that this alleged misrepresentation did not suffice to negate proof of entitlement, ordering Jessica's return under the ICJ in a written order later that day. The court heard Jessica's evidence relating to the missing person's report; her argument that she was not allowed to present evidence on proof of entitlement therefore fails.

Jessica's argument that the underlying missing person's report was fraudulent, and therefore an invalid basis for the superior court's proof of entitlement finding, also fails. In Matter of Aubree C. the New York family court stated that the ICJ does "not require any specific documentation of entitlement for the non-voluntary return [of] the juvenile other than the requisition." The court found that the ICJ lists certain examples but "does not require the submission of any specific supporting documentation." The court in that case examined the paperwork before it, finding that it was not "in order" because it was not properly verified or signed by an appropriate authority and "the ground cited for return ... is not supported by documentation." The court thus denied enforcing the requisition order.

Jessica suggests that there was no "appropriate authority from the requisitioning state" in this case, like in Aubree C. , because an "ICJ official from Iowa was not present at the proof of entitlement hearing." But the Aubree C. court did not require the ICJ authority's presence at the hearing itself; the court required only that the requisition paperwork be signed by an appropriate authority. Alaska's ICJ Administrator confirmed that the requisition paperwork in this case was proper: The petition included the necessary information and the basis of entitlement, which was that Jessica "did not return" and that her mother "is the custodian and guardian." The petition was verified by affidavit, certified copies of Jessica's birth certificate and the custody order were attached, and an Iowa judge signed the requisition form.

Jessica also argues that in the missing person's report her mother misstated the date she had last seen Jessica and that this "may have affected the validity of the Missing Person's report and, therefore, undermined the Alaska court's determination that the paperwork was 'in order.' " But even assuming the date's falsity, Iowa's requisition did not rely on the missing person's report, instead relying on Jessica's mother's petition, which stated that Jessica had run away and that her mother had legal custody. The petition alleged that Jessica was a "missing person in accordance to Iowa code" and did not include or allude to the missing person's report. ICJ Rule 6-103 does not require a missing person's report, and, therefore, its alleged invalidity in this case is not relevant to whether the superior court appropriately found the requisition paperwork in order.

Jessica finally contends that the superior court erred by failing to consider evidence regarding her best interests before finding that proof of establishment existed. This argument is just the "best interests" argument recast in proof-of-entitlement terms, and we reject it for the reasons discussed above.

The superior court properly considered whether the requisition paperwork was in order and did not err by finding proof of entitlement existed in this case. We therefore affirm its decision on this issue.

V. CONCLUSION

We AFFIRM the superior court's ICJ order for Jessica to return to her home state.

      We use a pseudonym to protect the minor's identity.

      The rule provides: "When the juvenile is a runaway and/or an accused status offender, the legal guardian or custodial agency shall petition the court of jurisdiction in the home/demanding state for a requisition." ICJ Rule 6-103(3) (Interstate Comm'n for Juveniles 2018). The ICJ defines the "[h]ome state" as "the state where the legal guardian or custodial agency is located" and the "[h]olding state" as "the state where the juvenile is located." ICJ Rule 1-101. In this case, Alaska is the holding state, and Iowa is the home state.

      ICJ Rule 6-103(4) provides that after receiving the required paperwork, the home state's ICJ office must "submit the requisition packet through the electronic data system to the ICJ Office in the state where the juvenile is located." Upon receipt, the holding state's ICJ office must send the paperwork "to the appropriate court and request that a hearing be held within thirty (30) calendar days of the receipt of the requisition." ICJ Rule 6-103(5).

      ICJ Rule 6-103(6) provides: "The court in the holding state shall inform the juvenile of the demand made for his/her return and may elect to appoint counsel or a [GAL]. The purpose of said hearing is to determine proof of entitlement for the return of the juvenile."

      State v. Planned Parenthood of the Great Nw. , 436 P.3d 984, 991 (Alaska 2019).

      Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C. , 370 P.3d 1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth , 361 P.3d 898, 905 (Alaska 2015) ).

      See generally AS 47.15.010.

      Thomas A. Jacobs, 2 Children and the Law: Rights and Obligations , § 8:53 (2018).

      AS 47.15.010.

      Id.

      ICJ Rule 6-103(3).

      ICJ Rule 6-103(3)(b); ICJ Form I Requisition for Runaway Juvenile (2016) (emphasis added).

      ICJ Rule 6-103(4), (6).

      ICJ Rule 6-103(6)

      Id.

      ICJ Rule 6-105(1)-(2).

      ICJ Rule 6-103(6) (providing that holding state must hold "hearing ... to determine proof of entitlement for the return of the juvenile").

      ICJ Rule 6-105(1).

      Id.

      ICJ Rule 6-105(2).

      See Ranney v. Whitewater Eng'g , 122 P.3d 214, 218 (Alaska 2005) (noting that expressio unius canon "establishes the inference that, where certain things are designated in a statute, 'all omissions should be understood as exclusions' " (quoting Croft v. Pan Alaska Trucking, Inc. , 820 P.2d 1064, 1066 (Alaska 1991) )).

      ICJ Form I Requisition for Runaway Juvenile (2016).

      Ch. 88, § 1, SLA 1960.

      See AS 47.15.010, as amended by ch. 37, § 4, SLA 2009.

      Minutes, Senate Finance Comm. Hearing on HB 141, 26th Leg. (Apr. 18, 2009) (Statement of Amanda Mortenson, Staff, Representative Coghill).

      See AS 47.15.010.

      Ch. 88, § 1, SLA 1960; ch. 37, § 4, SLA 2009.

      Interstate Compact on Juveniles , art. IV, § (a) (1955).

      Id .

      Id.

      See ICJ Form I Requisition for Runaway Juvenile (2016).

      Application of Pierce , 184 Mont. 82, 601 P.2d 1179 (1979) ; Application of Chin , 41 Misc.2d 641, 246 N.Y.S.2d 306 (N.Y. Sup. 1963) ; In re Wiles' Welfare , 15 Wash.App. 61, 547 P.2d 302 (1976) ; In re M.D. , 171 W.Va. 209, 298 S.E.2d 243 (1982).

      Matter of Teague, 91 N.C.App. 242, 371 S.E.2d 510 (1988) ; State ex rel. Juvenile Dep't of Multnomah Cty. v. Edwards , 15 Or.App. 677, 516 P.2d 1303 (1973) ; In the Interest of C.P. 516 Pa. 541, 533 A.2d 1001 (1987) ; In re Texas , 97 S.W.3d 744 (Tex. App. 2003).

      533 A.2d at 1003.

      Id.

      Id. at 1004.

      Id.

      Id.

      Interstate Commission for Juveniles, Bench Book for Judges & Court Personnel , 59 (2018); see also Jacobs , supra note 8 ("The asylum state has no jurisdiction to inquire into the juvenile's best interests, although at least one jurisdiction has held that when abuse is alleged, the asylum state may require the requisitioning state to produce evidence of a proposed plan for dealing with the juvenile when he or she is returned."); Phillip E. Hassman, Annotation, Extradition of Juveniles , 73 A.L.R.3D 700 § 2 (1976) ("Whether the extradition of a juvenile is in his best interest need not be determined by the asylum state before extraditing him under [the ICJ].").

      ICJ Rule 6-105(3).

      533 A.2d at 1004.

      Id.

      In her reply brief Jessica argues that due process requires the holding state to consider a juvenile's best interests. Although summarily raised before the superior court in reference to other jurisdictions' holdings, Jessica waived this issue by failing to raise it in her opening brief and by failing to provide legal citations or argument on any relevant due process standard. See Levi v. Dep't of Labor & Workforce Dev. , 433 P.3d 1137, 1147 n.37 (Alaska 2018) (deeming issue waived when not argued in opening brief or raised before superior court); Burns-Marshall v. Krogman , 433 P.3d 1121, 1126 n.16 (Alaska 2018) (deeming issue waived when party failed to provide citations or legal arguments).

      ICJ Rule 6-103(3)(a)(i-iii).

      ICJ Rule 6-103(3)(b).

      61 Misc.3d 280, 79 N.Y.S.3d 478, 483 (N.Y. Fam. 2018).

      Id.

      Id. at 484-85.

      Id. at 485.

      Id. at 484.