author: WINFREE, Justice.

text:
    VIOLET C., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Jack C., Appellant, v. State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellee.
    Supreme Court Nos. S-17038/17066 (Consolidated)
    Supreme Court of Alaska.
    March 1, 2019
    Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Violet C.
    Carolyn Perkins, Salt Lake City, Utah, for Appellant Jack C.
    Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maasen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

The superior court terminated a mother's and father's parental rights, finding their two children were in need of aid based on abandonment, incarceration, risk of domestic violence, and substance abuse. The court also determined that the Office of Children's Services (OCS) had satisfied its duty to make reasonable efforts to reunify the parents and children. The mother and father separately appealed the court's reasonable-efforts determinations, and the mother also appealed the court's findings that the children were in need of aid based on abandonment and domestic violence. We consolidated the appeals for consideration and decision. Seeing no reversible error, we affirm the superior court's decision to terminate the mother's and father's parental rights.

II. FACTS AND PROCEEDINGS

Violet C. and Jack C. are the separated biological parents of Maggie and Doug, eight-year-old twins. Jack was in a different state for the entirety of the case and incarcerated for its majority.

A. Initial Reports And Removal

In early August 2015 OCS received a report alleging that Violet was addicted to substances and abusing alcohol. An OCS caseworker visited the home, found no safety threats, and left without taking action. The caseworker returned a few weeks later after receiving renewed reports of harm. During this visit Violet's grandmother relayed concerns about Violet leaving the home and returning under the influence; the grandmother reported that Violet bullied her by beating on the door and yelling, and that Violet had once kicked a hole in the door. Violet's grandmother also reported that Violet once "grabbed [Maggie] by the arm and yanked her up and hauled her out" of a bedroom.

The OCS caseworker observed that Violet had sores on her face and legs, that she presented with jerky movements, and that she continually paced and turned during their conversation. Violet refused to allow OCS to assess the children or create a protective action plan, but she agreed to participate in urinalysis and hair follicle tests, which later yielded positive drug results.

OCS assumed custody of the twins in late August and filed for their adjudication as children in need of aid shortly thereafter.

B. OCS's Case Plan And Early Reunification Efforts

In September Violet notified OCS that she has hearing and mobility impairments; due to her disabilities, she requested transportation funding, patience in communication, and prioritization of in-person and email contact. OCS arranged for transportation services to visitation, parenting classes, treatment, and drug testing. OCS initially provided Violet taxi vouchers through mid-October. Before approving further taxi vouchers, it required documentation of her disabilities, which Violet did not provide until the following March. In the interim OCS arranged for third-party transportation services beginning in December. Violet did not fully utilize these services; testimony detailed multiple occasions when she was unavailable for transportation she had previously arranged.

OCS's November 2015 case plan required Violet to submit to random urinalysis tests, obtain a substance abuse assessment, follow treatment recommendations, and participate in parenting classes and mental health services. The case plan made no mention of Violet's disabilities or accommodation requests, instead noting that she was "physically able" and "possesse[d] adequate energy."

Violet inconsistently participated in supervised visitation. Visitation temporarily ceased in January 2016 due to her "excessive absences." She maintained telephonic contact with the twins, and OCS asked their foster parent to identify each voice and ensure they were not on the phone at the same time.

When OCS formulated Jack's case plan, he had recently been released from incarceration in Florida and relocated to Texas. He expressed an interest in having custody of the children. OCS's case plan required Jack to complete a substance abuse assessment and obtain treatment, participate in parenting classes, and obtain a psychological assessment. OCS worked with local providers to arrange the assessments.

Jack never notified OCS that he had trouble accessing services, and he later acknowledged that he "did not participate in these services." An OCS caseworker testified that she was unable to begin the process for placement with Jack under the Interstate Compact on the Placement of Children (ICPC) because he had only recently been released from jail, moved to a new home, and needed to first engage in services.

After losing contact with Jack, OCS became aware at the adjudication hearing of his reincarceration. OCS often had trouble contacting Jack, unsuccessfully attempting to contact him at the telephone number he provided, through his attorney, and through the jail itself.

In April 2016 the superior court issued its adjudication order, finding that Maggie and Doug were children in need of aid based on Jack's abandonment and incarceration and Violet's substance abuse. The court found that OCS had provided reasonable efforts to Jack but that OCS had not made reasonable efforts to provide Violet remedial services and allow the children to return to her care from September 2015 through February 2016. The court stated that OCS "viewed [Violet's] documented disabilities with skepticism, required outside verification of her disabilities, formulated a case plan not tailored to her needs, failed to accommodate [her] request for important information to be conveyed in writing, and cut off transportation and service referral funding in response to less-than-perfect performance."

But the court also found that OCS had provided Violet reasonable efforts since March 2016, "after transportation assistance resumed and [OCS] made better efforts to communicate" with her. The court found that around February 2016 OCS was able to obtain a transportation grant allowing Violet to attend visitation, a drug assessment, mental health appointments, and other services. The court therefore ordered the children placed in OCS's temporary custody.

C. Post-Adjudication Conduct; Trial

A new OCS caseworker was assigned to the case in October 2016. This caseworker met with Violet in person, ensured that Violet could read her lips, and communicated through text messages. By that point Violet had been discharged from treatment programs several times for noncompliance.

As of January 2017 Violet was involved with Sam. Sam has a history of both substance abuse and domestic violence, including a conviction for third-degree assault against an ex-girlfriend. He has twice violated his probation for failing to engage in a domestic violence intervention program and failing to report to his probation officer. Violet became pregnant with Sam's child in mid-2017. Although OCS referred her to a sober housing center, she refused to enter because Sam's domestic violence history prevented him joining her. They instead lived in Violet's often non-drivable van.

The termination trial took place over three days in February and March 2018. Although Violet regularly participated in drug tests for a few months prior to trial, yielding negative results except for one dilute sample, she earlier had failed to participate in urinalysis tests between April and September 2017. She completed a parenting class in April 2017 as required by her case plan, but she still needed to complete the plan's other aspects, including to secure appropriate housing, be consistent in her urinalysis tests, complete an inpatient substance abuse and after-care treatment program, and demonstrate sustained sobriety for at least six months.

Between the adjudication order and termination trial, Jack again had been released on supervised parole. But by the time of the termination trial his parole had been revoked for drinking, failing to report, traveling outside of an approved county, failing to perform community work service, failing to pay fines, and failing to complete a treatment program. Jack believed, but provided no evidentiary support, that he would be released from prison shortly after the termination trial.

Jack had completed anger management, drug rehabilitation, and parenting classes through the Texas Department of Corrections. Jack acknowledged that at the time of the termination trial he was not having regular telephonic contact with the twins. The foster parent testified to the twins' difficulty identifying their father and said they refer to him by first name rather than "dad."

In March 2018 the court issued its order terminating Violet's and Jack's parental rights, finding the twins to be children in need of aid under AS 47.10.011(1) (abandonment), (8) (risk of exposure to domestic violence by Sam), and (10) (substance abuse) based on Violet's conduct, and under subsections (1) (abandonment), (2) (incarceration), (8) (risk of exposure to domestic violence), and (10) (substance abuse) based on Jack's conduct.

The court stated that Violet "failed to complete a suitable case plan" and that she "inconsistently visits" the twins. The court noted she had "not demonstrated sustained stability and sobriety and ha[d] used substances within the past year. [Her] ability to parent has been substantially impaired by the addictive or habitual use of drugs, resulting in a substantial risk of harm to the children."

The court entered findings regarding OCS's efforts to provide Violet transportation services, written instructions, in-person meetings, referral funding for access to services, a peer navigator, and frequent communication. The court found specifically that "[w]hen taxi cab vouchers were made available to her, [Violet] chose not to use them." The court found that Violet "often had a working vehicle and friends would drive her to appointments." The court found that Violet had not remedied the conduct placing the children at substantial risk of harm and that termination of her parental rights was in the twins' best interests.

The court found that Jack had not remedied the conduct that put the twins at risk, pointing to Jack's lack of relationship or contact with his children. The court found that he also had "not demonstrated sustained stability and sobriety" and had "made minimal efforts to communicate and support the children." The court acknowledged that both parents "sincerely love" the children but found that termination was in the children's best interests.

Violet and Jack both appeal. Violet contends that the court erred by finding the twins were children in need of aid under AS 47.10.011(1) (abandonment) and (8) (domestic violence) and determining OCS made reasonable efforts to reunite her with her children. Jack contends that the court erred by determining OCS made reasonable efforts to reunite him with his children.

III. STANDARD OF REVIEW

Violet's appeal of fewer than all of the court's relevant child in need of aid findings raises the issue of mootness. "Because it is a matter of judicial policy, mootness presents a question of law" to which we apply our independent judgment.

" 'Whether OCS made reasonable efforts to reunify the family is a mixed question of law and fact.' For mixed questions, 'we review factual questions under the clearly erroneous standard and legal questions using our independent judgment.' " "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. Because Violet Does Not Contest The Superior Court's Finding That The Twins Were In Need Of Aid Based On Substance Abuse, We Decline To Consider The Court's Alternative Findings.

1. Violet does not challenge the superior court's finding under AS 47.10.011(10).

To terminate a parent's rights and responsibilities, the superior court must find by clear and convincing evidence that the children have been subjected to conditions that would qualify them as children in need of aid under one of the subsections of AS 47.10.011. Violet challenges the court's findings under subsections (1) (abandonment) and (8) (domestic violence). But because only one child in need of aid finding is necessary based on our case law - and Violet does not challenge the court's finding under subsection (10) (parental substance abuse) - we need not consider Violet's challenges to the other findings.

2. Violet's challenges to the superior court's alternative child in need of aid findings are moot.

Violet nonetheless asks us to vacate the superior court's alternative findings under subsections (1) and (8). Although her challenges are moot, she urges that we address those findings because they "could be used as evidence against her" and "she would be precluded from challenging" them in a subsequent child in need of aid case. Without citing relevant authority, Violet suggests that the collateral consequences doctrine applies. But inability to obtain review of her claims on appeal means that she will not be precluded from challenging the court's findings in a subsequent case. We therefore decline to apply the collateral consequences doctrine in this context.

3. Conclusion

Because Violet does not contest the superior court's child in need of aid finding under AS 47.10.011(10), and because we hold her challenges to the court's alternative findings moot, we affirm the court's determination that the twins were children in need of aid.

B. The Superior Court Did Not Err By Determining That OCS Made Reasonable Reunification Efforts.

Violet and Jack separately challenge the court's determination that OCS made reasonable reunification efforts. Before terminating parental rights, the superior court must find by clear and convincing evidence that OCS has complied with the AS 47.10.086 provisions governing reasonable efforts. That statute requires OCS to "make timely, reasonable efforts to provide family support services to the child and to the parents ... that are designed to ... enable the safe return of the child to the family home." OCS's efforts must be "reasonable but need not be perfect." "A parent's demonstrated unwillingness to participate in treatment may be considered in determining the reasonableness of state efforts."

The superior court found that OCS failed to provide reasonable efforts from September 2015 through February 2016 but that OCS had made reasonable efforts after that time. Violet contends that although "some failings had been cured by the time of the termination trial, not all were, resulting in a lack of reasonable efforts toward [her], contrary to the court's findings." Violet specifically points to OCS's failure to provide consistent transportation services. She argues that transportation issues - including a lack of reliable transportation because she lived in a non-drivable van and owned a car in need of repairs - made it "difficult to participate in programs, such as the random [urinalysis tests]." She argues that if OCS had offered "consistent assistance in transportation for services, her engagement level likely would have been more consistent and she might have been able to remedy her conduct in a timely fashion."

But we are not persuaded that OCS's failure to provide consistent transportation was the reason Violet could not comply with her case plan. The superior court found - and Violet acknowledges - that Violet failed to tell OCS about her transportation difficulties. Ultimately, although OCS's efforts to provide transportation may not have been perfect, they were reasonable.

In addition to her general argument contesting the court's reasonable-efforts finding, Violet contests two specific fact findings: (1) that when "taxi cab vouchers were made available to her, [she] chose not to use them"; and (2) that she "often had a working vehicle and friends would drive her to appointments."

In support of the first finding, the court cited a page of Violet's behavioral health records reporting that her "track record of keeping [appointments] even with approved cab vouchers is not good - she no-showed for the last two sessions when cab vouchers were authorized." Reviewing the record in the light most favorable to OCS, we are not persuaded that the court clearly erred by inferring that Violet "chose" not to use the vouchers when they were available but unused.

The court supported the second contested fact finding - that Violet "often had a working vehicle and friends would drive her to appointments" - by citing termination trial testimony in which a friend recalled taking Violet to visitation. The friend stated that "if [Violet] needed to go someplace, then yes, I drove her." Violet concedes in her brief that the court did not err by finding she had a working vehicle and friends who could transport her: "To a limited extent, then, the trial court was correct that Violet was able, at times, to use other sources for help." We therefore see no clear error in the court's finding on this point.

Overall the superior court found that OCS provided numerous services to the family including transportation, written instructions, in-person meetings, referral funding for case management services, a peer navigator, referrals to parenting classes and substance abuse assessments, weekly supervised visits, and referrals for housing at a local shelter and residential treatment center. In light of these findings, we hold that the superior court did not err by determining that OCS made reasonable efforts to reunite Violet with her children.

Nor did the superior court err by determining that OCS made reasonable efforts to reunite Jack with his children. He argues that OCS failed to coordinate telephonic visitation with his children or start an ICPC process.

The "practical circumstances" of Jack's incarceration made it difficult for OCS to provide extensive services. Testimony detailed that OCS could not initiate an ICPC placement during the short time when Jack was not incarcerated because he had only recently been released from jail, moved to a new home, and needed to first engage in services; his later reincarceration would have rendered ICPC progress ineffectual.

OCS repeatedly and unsuccessfully attempted to contact Jack through the telephone number he provided, through his attorney, and through the Texas Department of Corrections where he was incarcerated. OCS secured some services for Jack within his community when he was not incarcerated. And OCS attempted to arrange telephonic visitation between Jack and his children and provide him with case management services. The court's determination that OCS provided reasonable efforts to reunite Jack with his children was therefore not erroneous.

V. CONCLUSION

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

      We use pseudonyms to protect the family members' privacy.

      Jennifer L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 357 P.3d 110, 113 (Alaska 2015) (quoting Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 146 P.3d 991, 993-94 (Alaska 2006) ).

      Kylie L. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. , 407 P.3d 442, 448 (Alaska 2017) (quoting Joy B. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. , 382 P.3d 1154, 1162 (Alaska 2016) ).

      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. , 88 P.3d 527, 529 (Alaska 2004) ).

      AS 47.10.088(a)(1) ; CINA Rule 18(c)(1)(A).

      See Rick P. v. State, OCS , 109 P.3d 950, 956 (Alaska 2005) (noting it is unnecessary to consider other findings if record supports one ground for finding children to be in need of aid).

      See Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 146 P.3d 991, 994 (Alaska 2006) (" 'A claim is moot if it has lost its character as a present, live controversy.' If the party bringing the action would not be entitled to any relief if it prevails, there is no 'case or controversy' for us to decide." first quoting Kleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d 518, 523 (Alaska 1993) ; and then citing Ulmer v. Alaska Rest. & Beverage Ass'n , 33 P.3d 773, 776 (Alaska 2001) ).

      See James G. v. Veronica G. , No. S-11762, 2006 WL 204782, at *7-8 (Alaska Jan. 25, 2006) (noting general rule that case mooted pending appeal cannot be given preclusive effect, meaning collateral estoppel cannot be applied to child in need of aid finding if appellant cannot obtain appellate review of that finding; this rule protects the appellant's right to "obtain meaningful review on any issue that affects his rights" citing 18A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4433 (2d ed. 2002) ); but see Taryn M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , No. S-16326, 2017 WL 3122387, at *1 n.1 (Alaska July 19, 2017) (reviewing moot adjudication finding, without explanation, under collateral consequences doctrine).
      We also note - without considering its application to this case - the Restatement rule that even in cases where litigants fail to appeal, collateral estoppel does not apply when multiple grounds are each sufficient to support a judgment. Restatement ( Second ) of Judgments § 27 cmt. i (1982) ("If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.").

      AS 47.10.088(a)(3) ; CINA Rule 18(c)(2)(A).

      AS 47.10.086(a).

      Audrey H. v. State, Office of Children's Servs. , 188 P.3d 668, 678 (Alaska 2008) (citing Jeff A.C., Jr. v. State , 117 P.3d 697, 706 (Alaska 2005) ).

      Id. (citing E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986, 991 (Alaska 2002) ).

      Id . (citing Jeff A.C. , 117 P.3d at 706 ).

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

      See A.A. v. State, Dep't of Family & Youth Servs. , 982 P.2d 256, 261 (Alaska 1999) (holding in ICWA context, where OCS bears higher burden of making "active efforts" to promote reunification, that "the practical circumstances surrounding a parent's incarceration ... may have a direct bearing on what active remedial efforts are possible").


source: Caselaw Access Project

author: MAASSEN, Justice.

license: Public Domain

text:
    Raymond LEAHY, Appellant, v. John CONANT and Clare Sullivan, Appellees.
    Supreme Court No. S-16781
    Supreme Court of Alaska.
    March 8, 2019
    Raymond Leahy, pro se, Wasilla, Appellant.
    Mary B. Pinkel, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellees.
    Before: Stowers, Chief Justice, Maassen, Bolger, and Carney, Justices. [Winfree, Justice, not participating.]
   MAASSEN, Justice.

I. INTRODUCTION

A prisoner sued two prison superintendents, claiming that a mail policy instituted by the Alaska Department of Corrections (DOC) violated his religious rights because it prohibited him from writing letters to fellow Muslims in two other prisons. He asked for damages and a declaratory judgment that the mail policy violated the Alaska Constitution and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

DOC rescinded the policy while the case was pending. The superior court granted summary judgment in favor of the superintendents, finding that the prisoner was not entitled to damages because the superintendents had not been personally involved in creating the policy and that his claims for non-monetary relief were mooted by the policy's rescission. The prisoner appeals.

We affirm the superior court's decision that the prisoner is not entitled to damages, though on different grounds. We conclude that the superintendents were entitled to qualified immunity because the prisoner's right to a religious exception from the mail policy was not "clearly established" under existing law. We also affirm the superior court's decision that the prisoner's claim for declaratory relief is moot. Finally, we see no abuse of discretion in the superior court's handling of the prisoner's pro se status or its failure to designate the prisoner as the prevailing party.

II. FACTS AND PROCEEDINGS

Raymond Leahy is a prisoner at Goose Creek Correctional Center (Goose Creek). He is a practicing Muslim and identifies himself as the Imam of the "Ummah of Incarcerated Alaskan Muslims." John Conant and Clare Sullivan, the appellees, have served as superintendents of Goose Creek and Spring Creek Correctional Facilities, respectively.

Leahy's complaint arose from a February 2014 DOC directive that prohibited mail between prisoners residing at three correctional facilities: Goose Creek, Spring Creek, and the Anchorage Correctional Complex. Though not in the record, the directive is described in several affidavits and an implementing memorandum, and its substance is not in dispute. Sullivan attests that the directive was issued by former DOC Commissioner Bryan Brandenberg and stemmed from a concern that prisoners returning from private prisons outside Alaska were involved in gang and drug-trafficking activity and could "use the prison mail system to pass information for planning and carrying out assaults, conducting illegal business and drug activities, as well as recruiting and communicating [gang] activities." The directive contained exceptions for mail to "immediate family members" and co-litigants in criminal cases.

According to Leahy, in June 2015 he attempted to send a letter to a prisoner at Spring Creek who was the Imam in the Spring Creek community. Leahy sent his letter during Ramadan; he explains that the teachings of the prophet Muhammad require that he engage in dialogue with Muslims in "communities outside [his] own" and that he "holds a sincere religious belief that it is obligatory for him to reach out and support fellow Muslims within the Ummah of Incarcerated Alaskan Muslims." DOC returned Leahy's letter to him as undeliverable.

Leahy sought unsuccessfully to meet with Superintendent Sullivan to explain why his letter to the Imam was important to his religious practice. He then filed a grievance, which was denied, and appealed it without success. In June 2016 he filed a complaint in superior court, asserting that DOC's refusal to allow him "to reach out and support fellow Muslims within the Ummah of Incarcerated Alaskan Muslims" placed "a substantial burden on his religious exercise," violating his rights under RLUIPA and the Alaska Constitution and supporting claims for damages and declaratory relief under 42 U.S.C. § 1983. The suit named Conant and Sullivan as defendants in both their official and individual capacities. It sought a declaration "that the acts and omissions described herein violate Leahy's rights"; an order that each of the superintendents "pay nominal and punitive damages, in the amount of $20,000.00"; an award of "costs, fees, and postage"; and "any other just and equitable relief [the superior court] deems appropriate."

While the suit was pending - in November 2016 - the 2014 directive was rescinded by new DOC Commissioner Bruce Busby. According to Sullivan, who had become Deputy Commissioner, the directive was rescinded because while "the restriction was appropriate at the time it was issued, it [was] no longer necessary .... [since DOC was] now in a better position to monitor inmate mail than [it had been] two years ago, and the threat posed by inmate to inmate mail at present [was] not as great as it [had been] previously." The new policy restricted mail "only on a case-by-case basis"; the restriction was to "be no broader than necessary to address ... safety or security concerns."

Leahy filed a motion for summary judgment, contending that the 2014 directive had violated his religious rights, that the rescission of the directive meant that he was now "entitled to judgment as a matter of law," and that he was entitled to damages for the past violation. The superintendents filed a cross-motion for summary judgment, arguing that Leahy's claims were now moot, that the superintendents were otherwise entitled to qualified immunity, and that the 2014 directive did not violate Leahy's rights.

The superior court denied Leahy's motion and granted the superintendents' cross-motion. The court reasoned that the superintendents could not be liable for damages under 42 U.S.C. § 1983 because they "did not personally participate in the decision to institute the mail restriction" and that Leahy's claims for declaratory and injunctive relief were moot because of the directive's rescission.

Leahy appeals.

III. STANDARD OF REVIEW

"We review grants of summary judgment de novo, drawing all factual inferences in favor of, and viewing the facts in the light most favorable to the non-prevailing party (generally the non-movant)." We will "affirm grants of summary judgment when there are no genuine issues of material fact, and the prevailing party (generally the movant) was entitled to judgment as a matter of law." "We may affirm the superior court on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party."

"We review for abuse of discretion 'decisions about guidance to a pro se litigant ....' " Finally, "[w]e review for abuse of discretion a trial court's prevailing party determination," which will be overturned only if it is "manifestly unreasonable."

IV. DISCUSSION

A. The Superintendents Were Entitled To Qualified Immunity From Leahy's Damages Claims.

Leahy did not sue the State or DOC; he sued only the two prison superintendents, in both their official and their individual capacities, alleging that they violated his rights under the Alaska Constitution and RLUIPA by "denying [his] correspondence with fellow Muslims in other [DOC] facilities, without justification." The superintendents raised qualified immunity as a defense and argued for it as one ground for summary judgment. The superior court did not rely on that defense when it decided the case, however, holding instead that under 42 U.S.C. § 1983 the superintendents could not be liable for violations of Leahy's religious rights except "upon a showing of personal participation," and Leahy failed to show that the superintendents "personally participate[d] in the decision to institute the mail restriction."

We note first that the superintendents' lack of involvement in the directive's implementation or say in its enforcement is not a defense to a § 1983 claim. "[S]ince World War II, the 'just following orders' defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a reason why any of them should question the validity of that order." "[U]nder the Supremacy Clause, [government] officials have an obligation to follow the [U.S.] Constitution even in the midst of a contrary directive from a superior or in a policy." Government officials may thus be liable for damages under § 1983 upon a showing that they acted unreasonably in following a superior's lead, or that they knew or should have known that their conduct might result in a violation of the plaintiff's constitutional rights.

That said, the superintendents were nonetheless entitled to summary judgment on Leahy's damages claims because there was no showing that they acted unreasonably in following the directive; they are therefore protected by qualified immunity. We "follow federal precedent for determining whether qualified immunity should be conferred for [official] acts alleged to contravene a statutory or constitutional mandate." "Specifically, [in Breck v. Ulmer ] we adopted a test established by the United States Supreme Court in Harlow v. Fitzgerald ," under which "qualified immunity shields public officials from civil liability 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " The inquiry is an objective one.

"The burden of establishing that a right is clearly established falls upon the plaintiff."

1. Federal precedent favors the constitutionality of similar mail restrictions.

We conclude that Leahy did not demonstrate the existence of a "clearly established right" of which a reasonable prison official would have known. Alaska case law has not definitively addressed the issue of restrictions on prisoner-to-prisoner mail. And federal law favors the constitutionality of the directive at issue; the United States Supreme Court deferred to a prison system's similar mail restrictions in Turner v. Safley , a case with close parallels to this one.

In Turner , Missouri prisoners brought a constitutional challenge against a mail policy that only allowed "correspondence between inmates [at different state prisons] ... if 'the classification/treatment team of each inmate deem[ed] it in the best interest of the parties involved.' " The policy exempted mail sent between family members and mail concerning legal matters. A federal district court held the policy unconstitutional, finding that it was "unnecessarily broad ... because prison officials could effectively cope with the security problems raised by inmate-to-inmate correspondence through less restrictive means, such as scanning the mail of potentially troublesome inmates." The Court of Appeals for the Eight Circuit affirmed.

The Supreme Court reversed. While acknowledging that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," the Court observed that "[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." The Court concluded that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Such a deferential standard is necessary, the Court reasoned, to ensure that "the difficult judgments concerning institutional operations" are left primarily to prison administrators rather than judges. Factors relevant to determining whether a regulation is reasonable include (1) whether there is "a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates" ; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and (4) "the absence of ready alternatives."

The Supreme Court found the Missouri mail restriction constitutional under this test. The Court first cited trial testimony that the restriction "was promulgated primarily for security reasons" - much like those that prompted the directive at issue here - and was "logically connected to these legitimate security concerns." The Court noted that the policy did not "deprive prisoners of all means of expression" because it barred "communication only with a limited class of other people with whom prison officials [had] particular cause to be concerned." It observed that allowing unrestricted mail between prisoners could affect the safety of guards and other prisoners, and "[w]here exercise of a right requires this kind of tradeoff, we think that the choice made by corrections officials - which is, after all, a judgment 'peculiarly within [their] province and professional expertise,' - should not be lightly set aside by the courts." Finally, the Court noted that there were "no obvious, easy alternatives to" the Missouri mail policy; the one identified by the inmates - reviewing all inmate correspondence - "clearly would impose more than a de minimis cost on the pursuit of legitimate corrections goals."

2. Federal precedent would not lead a state corrections official to believe that the challenged mail policy violated a clearly established right.

An objective application of the Turner analysis to DOC's mail policy leads to a similar conclusion in this case. Sullivan's affidavit explained that the policy was instituted in reaction to concerns "that Alaska inmates, in particular inmates who were returning from private prisons out of state, were affiliated with gangs and involved with drug trafficking" and that they "would use the prison mail system to pass information for planning and carrying out assaults, conducting illegal business and drug activities, as well as recruiting and communicating security threat group ('STG') activities." Addressing such concerns is a legitimate penological interest, and there is a rational connection between this interest and the restrictions on prisoner-to-prisoner mail. Leahy had alternative means of exercising his faith's requirement that he communicate with Muslim communities outside his own; the only restriction was on letters to two other prisons.

Less clear is the application to this case of the third and final Turner factors - "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally," and "the absence of ready alternatives." In the superior court, Leahy urged that the way to accommodate his constitutional rights was by compliance with the existing regulation, 22 AAC 05.520(c)(1), which contains no restrictions on addressees but rather contemplates DOC review of individual pieces of mail "upon reasonable grounds to believe that the content falls into any of the categories" of content specifically prohibited by the regulation, including, for example, threats, plans for smuggling contraband, coded messages, and unauthorized solicitations. And in fact DOC returned to a method of individualized review after the directive was rescinded. This could imply that accommodating Leahy's asserted right to send mail to other prisoners while still maintaining an appropriate level of security was not particularly challenging in terms of security or "the allocation of prison resources generally."

But Sullivan attested that the directive was rescinded "because, although the restriction was appropriate at the time it was issued, it is no longer necessary," explaining that "[t]he correctional facilities are now in a better position to monitor inmate mail than they were two years ago, and the threat posed by inmate to inmate mail at present is not as great as it was previously." This explanation lacks detail, but it was not disputed on summary judgment, and we may therefore assume it to be true for purposes of our review. We conclude that an analysis of the Turner factors leads to the same result in this case as it did in Turner .

Courts in some cases have concluded that prisoner's religious rights are "clearly established" such that prison officials accused of violating them are not entitled to qualified immunity. In Hayes v. Long , the Eighth Circuit affirmed a district court's decision that prison officials were not entitled to qualified immunity after disciplining a Muslim prisoner who refused to serve pork. The court observed that previous cases in the Arkansas district where the prison was located had "clearly established ... that Muslim inmates have the right to avoid contact with pork or with any food that has been contaminated by pork" and that the Arkansas Department of Corrections had been a defendant in one such case. Courts have also rejected the immunity defense for prison officials who refused to send mail for prisoners who used an assumed religious name, reasoning that the issue "has been litigated extensively and courts have consistently recognized an inmate's First Amendment interest in using his new, legal name...." But case law shows no similar "clearly established right" in the context of prisoner-to-prisoner mail.

Indeed, because the Supreme Court upheld similar prisoner-to-prisoner mail restrictions in Turner , we would be hard pressed to conclude that existing case law would have alerted reasonable corrections officials that a general ban on such correspondence was unconstitutional absent an exception for religious communications. The superintendents therefore had qualified immunity from suit and were entitled to summary judgment on Leahy's damages claims on that basis.

B. Leahy Has No Viable Damages Claims Under RLUIPA Against The Individual Superintendents, And His Declaratory Judgment Claim Is Moot .

One basis of Leahy's lawsuit was RLUIPA. The cause of action available under RLUIPA for litigants like Leahy is a suit for injunctive or declaratory relief against defendants in their official capacity. Qualified immunity does not bar such a suit under federal law. RLUIPA does not authorize damage awards against states or individual state actors.

In his complaint, Leahy requested a declaratory judgment "that the acts and omissions described herein violate [his] rights under the Alaska Constitution, the [RLUIPA], and the Alaska [DOC's] own Policies and Procedures." He sought summary judgment on this claim for declaratory relief, arguing that despite the directive's rescission the court should "call[ ] out defendants[ ] as having violated plaintiff's protected rights." Though conceding in his summary judgment pleadings that any claim for injunctive relief had "become moot," he argued in his motion for reconsideration that a declaratory judgment would serve essentially the same purpose: A "declaratory judgment would have satisfied Plaintiff of no future relapse of the ban."

The Declaratory Judgment Act provides in relevant part: "In case of an actual controversy in the state, the superior court ... may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought." We have held that "[t]his provision requires declaratory judgment actions to be associated with an actual case or controversy; they do not open the door for hypothetical adjudications, advisory opinions, or answers to moot questions."

We have also held that "[c]laims for declaratory relief are commonly moot when the statute or regulation at issue is no longer in effect or has been amended." "This is because '[i]ssuing a decision regarding regulations that are no longer in effect is merely an academic exercise; it provides no explanation of a party's rights under the existing law.' " Leahy does not dispute that the mail policy to which he objects was changed in November 2016 to an individualized-review policy that he finds unobjectionable. Judicial review to determine the constitutionality of the earlier policy, in existence for less than three years and now replaced, would be a purely "academic exercise." The superior court did not err by deciding that Leahy's claim for declaratory relief was moot.

C. The Superior Court Did Not Abuse Its Discretion With Regard To Leahy's Status As A Pro Se Litigant.

Leahy asserts that the superior court erred by failing to advise him to add former Commissioner Brandenberg as a defendant and by striking a pleading he filed in response to the superintendents' reply to his opposition to its cross-motion for summary judgment. "In general, pro se litigants are granted considerable leeway with regard to procedural requirements." But while the court "should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish," judges "must be careful to maintain their impartiality" and "may not act as advocates for pro se litigants on substantive legal issues."

Advising a litigant to add a particular party defendant would usually cross the line from procedural advice to substantive advocacy. The superior court did not abuse its discretion by failing to do so. Nor did the superior court abuse its discretion by striking Leahy's response to the superintendents' reply on summary judgment; the response was not authorized by the Civil Rules, and the superior court's obligation to advise pro se litigants of the proper procedure does not require it to grant more procedural rights than the Rules allow litigants generally.

D. An Argument That Leahy Should Have Been Designated The Prevailing Party Is Waived.

Finally, Leahy contends that, "[g]iven that [DOC] decided to rescind the ban, after having been served [with this lawsuit], [Leahy] naturally believed he won the case," and he asks that we award him "all costs and fees paid in the course of this case." Though he makes no substantive argument, his claim could be read leniently as one for prevailing party status based on the catalyst theory, which may apply "when a lawsuit brings about relief in a manner other than formal judgment." A party seeking prevailing party status under the catalyst theory "must demonstrate (1) that it achieved the goal of the litigation by succeeding on any significant issue which achieves some of the benefit sought in bringing the suit, and (2) that there is a causal connection between the defendant's action generating relief and the lawsuit."

But Leahy made no prevailing party argument in the trial court. After the superior court granted summary judgment and denied Leahy's subsequent motion for reconsideration, the superintendents moved for entry of final judgment, disclaiming any intent "to seek attorney's fees or costs." Leahy did not oppose the superintendents' motion, and the court signed a final judgment that made no determination of prevailing party status and awarded no fees or costs. Having failed to raise a prevailing party argument in the trial court, Leahy cannot raise one for the first time on appeal.

V. CONCLUSION

The judgment of the superior court is AFFIRMED.

      Affidavits were filed by Sullivan and Kevin Horton, who was then acting superintendent of Goose Creek. Horton's affidavit described his knowledge of his predecessor Conant's actions with regard to the 2014 directive.

      Although titled "Complaint for Injunctive Relief[,] Declaratory Judgment and Damages," the body of Leahy's complaint, including its prayer for relief, did not request an injunction.

      Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005).

      Id.

      Brandner v. Pease , 361 P.3d 915, 920 (Alaska 2015) (quoting Smith v. Stafford , 189 P.3d 1065, 1070 (Alaska 2008) ).

      Greenway v. Heathcott , 294 P.3d 1056, 1062 (Alaska 2013) (quoting Shooshanian v. Dire , 237 P.3d 618, 622 (Alaska 2010) ).

      Gov't Emps. Ins. Co. v. Gonzalez , 403 P.3d 1153, 1160 (Alaska 2017) (quoting Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska 2008) ).

      Kennedy v. City of Cincinnati , 595 F.3d 327, 337 (6th Cir. 2010) (quoting O'Rourke v. Hayes , 378 F.3d 1201, 1210 n.5 (11th Cir. 2004) ).

      Id. (first alteration in original) (quoting N.N. ex rel. S.S. v. Madison Metro. Sch. Dist. , 670 F.Supp.2d 927, 933 (W.D. Wis. 2009) ).

      Hartsfield v. Lemacks , 50 F.3d 950, 956 (11th Cir. 1995) ; see Estate of Brown v. Thomas , 771 F.3d 1001, 1005 (7th Cir. 2014) ("Of course if one is told by one's superiors to do something that is obviously illegal, it is no defense that one was just obeying orders; that was a defense conclusively rejected at the Nuremberg trials of Nazi war criminals."). The superior court cited Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989) in support of the proposition that § 1983 liability requires "personal participation." But Taylor addressed whether superiors who did not participate in, direct, or know about subordinates' constitutional violations could be liable on a "respondeat superior" basis, concluding they could not. Id. This case does not present that issue.

      Breck v. Ulmer , 745 P.2d 66, 71-72 (Alaska 1987).

      Maness v. Daily , 307 P.3d 894, 901 (Alaska 2013) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).

      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty , 167 P.3d 64, 69 (Alaska 2007).

      Id.

      482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We applied the Turner analysis in Larson v. Cooper , when we considered and rejected a prisoner's claim that limits on physical contact with visitors violated his religious rights under the federal constitution. 90 P.3d 125, 129-31 (Alaska 2004).

      482 U.S. at 81-82, 107 S.Ct. 2254.

      Id. at 81, 107 S.Ct. 2254.

      Id. at 83, 107 S.Ct. 2254.

      Id.

      Id. at 84-85, 107 S.Ct. 2254.

      Id. at 89, 107 S.Ct. 2254.

      Id. (quoting Jones v. N.C. Prisoners' Labor Union, Inc. , 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) ).

      Id. at 89, 107 S.Ct. 2254 (quoting Block v. Rutherford , 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) ).

      Id. at 90, 107 S.Ct. 2254.

      Id.

      Id.

      Id. at 91, 107 S.Ct. 2254 (discussing testimony about inter-institution mail being "used to communicate escape plans and to arrange assaults and other violent acts" and the attempt to combat gang violence "both by transferring gang members to different institutions and by restricting their correspondence").

      Id.

      Id. at 92, 107 S.Ct. 2254.

      Id. at 92-93, 107 S.Ct. 2254 (quoting Pell v. Procunier , 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ).

      Id. at 93, 107 S.Ct. 2254.

      See id. at 89, 107 S.Ct. 2254 ; Larson v. Cooper , 90 P.3d 125, 129 (Alaska 2004) ("Prison security is a compelling governmental interest, and limitations on contact visits are rationally related to this interest.").

      See Turner , 482 U.S. at 90, 107 S.Ct. 2254.

      Id.

      Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage , 919 P.2d 759, 762 (Alaska 1996) ("[We] appl[y] [our] independent judgment in reviewing a [trial] court's application of law to undisputed facts.")

      72 F.3d 70 (8th Cir. 1995).

      Id. at 72, 74 ; see also Williams v. Bitner , 455 F.3d 186, 191-94 (3d Cir. 2006) (holding that prison official was not entitled to qualified immunity after forcing Muslim prisoner to handle pork when other cases clearly established Muslims' right to avoid such contact).

      Malik v. Brown , 71 F.3d 724, 729-30 (9th Cir. 1995) ; see also Masjid Muhammad-D.C.C. v. Keve , 479 F.Supp. 1311, 1327 (D. Del. 1979) (disallowing qualified immunity defense for prison superintendent who refused to deliver mail if addressed to the prisoner only in his adopted Muslim name).

      42 U.S.C. § 2000cc et seq. (2012).

      See Kentucky v. Graham , 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that "personal immunity defenses, such as objectively reasonable reliance on existing law," are unavailable "[i]n an official-capacity action"); Vance v. Barrett , 345 F.3d 1083, 1091 n.10 (9th Cir. 2003) ("[A] defense of qualified immunity is not available for prospective injunctive relief."); Presbyterian Church (U.S.A.) v. United States , 870 F.2d 518, 527 (9th Cir. 1989) ("Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief.").

      See Sossamon v. Texas , 563 U.S. 277, 285-86, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011) (holding that "RLUIPA's authorization of 'appropriate relief against a government,' is not the unequivocal expression of state consent that [the Court's] precedents require" for a finding that the state has waived its sovereign immunity from damages suits (internal citations omitted)); Jones v. Williams , 791 F.3d 1023, 1031 (9th Cir. 2015) ("RLUIPA does not authorize suits for damages against state officials in their individual capacities because individual state officials are not recipients of federal funding and nothing in the statute suggests any congressional intent to hold them individually liable.").

      AS 22.10.020(g).

      Laverty v. Alaska R.R. Corp. , 13 P.3d 725, 729 (Alaska 2000) ; see also Williams v. Alioto , 549 F.2d 136, 141 n.4 (9th Cir. 1977) (noting that the mootness doctrine applies in the declaratory judgment context).

      Alaska Judicial Council v. Kruse , 331 P.3d 375, 380 (Alaska 2014) ; see, e.g. , Ahtna Tene Nené v. State, Dep't of Fish & Game , 288 P.3d 452, 458 (Alaska 2012) (holding appeal moot because challenged hunting regulation was "no longer in effect" after having been substantially amended, and noting: "We have long held that challenges to administrative permitting decisions based on rules that are no longer valid are moot, despite the fact that permit opponents seek declaratory judgments that the agency actions were unlawful."); State, Dep't of Nat. Res. v. Greenpeace, Inc. , 96 P.3d 1056, 1068 (Alaska 2004) (concluding that appeal from DNR decision to lift stay on issuance of temporary water permit was moot when "the controlling statute and regulation were both amended in 2001, after the permit expired and before the superior court ruled on the stay issue"); Peninsula Mktg. Ass'n v. State , 817 P.2d 917, 920 (Alaska 1991) (interpreting statute granting regulatory powers to Board of Fisheries under public interest exception to mootness doctrine but declining to address claims "about the particular regulation in this case" because it was no longer in effect); Carney v. State Bd. of Fisheries , 785 P.2d 544, 549 (Alaska 1990) (affirming dismissal of claims of set netters whose claims were mooted after State amended regulation to remove restrictions from beach where they fished).

      Alpine Energy, LLC v. Matanuska Elec. Ass'n , 369 P.3d 245, 257 (Alaska 2016) (quoting Ahtna Tene Nené , 288 P.3d at 457 ).

      We recognized in Slade v. State, Dep't of Transp. & Pub. Facilities that, under federal law, the "voluntary cessation" of a challenged practice might not moot the challenge unless "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." 336 P.3d 699, 700 (Alaska 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). In Slade we determined that this test was satisfied by the Attorney General's "unambiguous policy statement," which was binding in Slade and which "other litigants [would] be aware of" because of our published order addressing it. Id. at 701. The facts here are similar. The Commissioner's express policy as of November 2018 is "that prisoners may correspond with anyone except those persons and businesses limited by this [written] policy." State of Alaska Dep't of Corr. Policies & Procedures 810.03 at 1 (2018), http://www.correct.state.ak.us/pnp/pdf/810.03.pdf. Prisoner-to-prisoner mail may not be restricted except as required for reasons of safety or security; restrictions will then be imposed "only on a case-by-case basis," and "[t]he restriction must be no broader than necessary to address the safety or security concerns." Id. at § IV(C)(1), (2). The prior policy is explicitly superceded, and the new one is not due for review until November 2023. Id. at 1. We conclude that the Commissioner's new "unambiguous policy statement" satisfies the test of Slade . See, e.g. , Brown v. Buhman , 822 F.3d 1151, 1167-68 (10th Cir. 2016) ("[W]e have indicated that government 'self-correction ... provides a secure foundation for mootness so long as it seems genuine.' " (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1118 (10th Cir. 2010) )).

      Greenway v. Heathcott , 294 P.3d 1056, 1071 (Alaska 2013).

      Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987).

      Rae v. State, Dep't of Corr. , 407 P.3d 474, 479 (Alaska 2017).

      In any event, we note that under our discussion of qualified immunity, above, former Commissioner Brandenberg would have been protected by the defense, and the result of this suit would have been the same. See Tracy v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 279 P.3d 613, 617-18 (Alaska 2012) (finding no abuse of discretion in superior court's failure to advise plaintiffs they could amend complaint when their claims would have been dismissed regardless).

      Alaska Rules of Civil Procedure Civil Rules 56(c) and 77(b)-(d) contemplate a motion, an opposition, and a reply.

      Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough , 135 P.3d 1000, 1008 (Alaska 2006).

      Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1094 (Alaska 2008) (quoting Interior Cabaret , 135 P.3d at 1008 ).

      See Ivy v. Calais Co. , 397 P.3d 267, 275 (Alaska 2017).


text:
    EVA H., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Keith J., Appellant, v. State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellee.
    Supreme Court Nos. S-16796/16816 (Consolidated)
    Supreme Court of Alaska.
    March 8, 2019
    Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for Appellant
    Eva H. J. Adam Bartlett, Anchorage, for Appellant
    Keith J. Shelley J. White, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

The Office of Children's Services (OCS) took custody of a three-month-old child after he was found outside alone on a cold winter day. The child's mother had an alcohol abuse problem and had failed repeated attempts at treatment. The father also had problems with alcohol abuse, never completing treatment and spending much of the relevant time period in jail or on probation. The mother and father had a second child while OCS's case was pending, and the agency took custody of that child as well. OCS then petitioned to terminate parental rights to both children. The superior court granted OCS's petition following trial.

The parents appeal. The father argues that the superior court erred when it found OCS's proposed expert witness, an experienced attorney and guardian ad litem, qualified to testify about whether the children would likely suffer emotional or physical harm if returned to their parents' care. We agree that the record does not support a conclusion that the witness met the heightened standard for expert testimony under the Indian Child Welfare Act (ICWA); for that reason we reverse the termination order and remand the case for further proceedings.

II. FACTS AND PROCEEDINGS

In December 2013 OCS case workers in Bethel found a three-month-old child, Kevin, alone outside in 14-degree weather. Kevin's mother, Eva, was in her sister's home nearby, intoxicated, and Kevin's father, Keith, was in prison because of a probation violation. OCS placed Kevin in emergency foster care and petitioned for emergency custody, which the superior court granted. The parties agreed that Kevin was an Indian child subject to ICWA.

About two years later another child, Matt, was born to Keith and Eva. OCS took custody of Matt shortly after his birth, and his case proceeded along with Kevin's.

Eva's primary difficulty was her long-term abuse of alcohol. Recognizing this, Eva obtained her own substance abuse assessment before OCS even required it and began attending alcohol treatment. She attended three different treatment programs over the course of the case; at trial she testified she was in the middle of a fourth. But Eva had yet to successfully complete a program; she either left the program early or failed to complete aftercare, and she was unable to maintain sobriety.

Keith was incarcerated for most of 2014 and 2015. During one of his periods of release, in October 2015, he and Eva attended a residential substance abuse treatment program, but both left the program without completing it.

In November 2016 OCS petitioned for the termination of both parents' parental rights. The court held a termination trial over the course of four days in March and July 2017.

On the last trial day in March the superior court rejected as unqualified OCS's proposed expert witness, an ordained minister and part-time OCS social worker, and continued the trial until July to give OCS the opportunity to find another expert witness.

When trial resumed OCS offered a local attorney, Deborah Reichard, as its expert witness. Reichard had served as a guardian ad litem (GAL) in the Yukon-Kuskokwim Delta for over 18 years - up to about two years before trial. Over Keith's objection, the court qualified Reichard as an expert "as to delivery of child protective services to families in the Yukon Delta" and "issues that relate to the substance abuse and how it affects families."

At the close of trial, the superior court issued an order terminating the parental rights of Eva and Keith. Both parents appeal. Eva challenges the findings that she failed to remedy her conduct and that termination was in the child's best interests. Keith challenges the superior court's findings that OCS used active efforts and that Reichard was a qualified expert witness for ICWA purposes.

III. STANDARD OF REVIEW

"We review de novo the court's conclusions of law, such as whether the superior court's findings and the expert testimony presented at trial satisfy the requirements of ICWA."

Whether parents have remedied their conduct and whether termination is in the children's best interests are both factual findings reviewed for clear error. Whether OCS made active efforts is a mixed question of law and fact, and we review the legal aspects of this issue de novo.

IV. DISCUSSION

A. It Was Error To Find That Reichard Was A Qualified Expert Witness For Purposes Of ICWA.

ICWA requires that the termination of parental rights to an Indian child rest in part on "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." "Under ICWA, the requirements for an expert's qualifications are heightened beyond those normally required." Keith challenges the superior court's decision that Deborah Reichard was a qualified expert witness for purposes of ICWA.

1. Reichard's expert qualifications and testimony

Reichard, OCS's proposed expert witness, was an attorney and former GAL. She testified that she had a bachelor's degree in political science as well as her law degree; had worked for Alaska Legal Services in the Bethel area; and had served as a GAL for 18 and a half years in the Yukon-Kuskokwim Delta. She testified that nearly 100 percent of the population she served as a GAL was Alaska Native. She described the GAL's "role and responsibilities" as "looking after the best interests of children, which involved working with families, with OCS and with social workers to try to help families, whatever their problems may be." She testified that these problems included "issues of substance abuse impacting parenting or domestic violence" in "[p]robably upwards of 90 percent" of the cases she worked on. She summarized her role as a GAL as "trying to formulate case plans to try to help families sort of work through their problems and to reunite them."

Reichard testified that she had served as an expert witness for OCS a number of times in the past several years, that she was usually asked for her opinion on "[w]hether or not return of the child or children to their parents is likely to result in serious emotional and physical damage," and that she was routinely accepted as a testifying expert on "[t]he delivery of child protective services to families on the YK Delta." She testified that during her years as a GAL she attended training sessions, "sometimes twice a year" but some years not at all; the subject areas of these sessions included substance abuse, domestic violence, trauma, sexual assault, and "OCS practices."

Reichard was asked more about this training on voir dire. She testified that it mostly occurred during her last six or seven years as a GAL "because there weren't many trainings in the beginning," and that the trainings ranged in length from "a couple of hours" to "a couple of days." She testified that other than acting as an expert witness, she had not done any work in the area of her suggested expertise since her last GAL assignment in February 2015. She acknowledged that she had not attended any college-level classes, authored any publications, or acquired any certifications or licenses in the area of her suggested expertise. She agreed that she had no formal education in psychology, mental health, chemical dependency, substance abuse, social work, or therapy, and she did not recall having read any scholarly literature in these areas. She acknowledged that she was unable to "diagnose mental health issues," though she testified she could recognize them based on her experience as an attorney and a GAL. But she further admitted that she did not use "any documents or models, like professional references, in order to make those conclusions"; she relied solely on her experience as an attorney and a GAL.

Over the objection of Eva's attorney (joined in by the children's GAL), the superior court accepted Reichard as qualified to testify as an expert "as to delivery of child protective services to families in the Yukon Delta and to talk about the issues that relate to the substance abuse and how it affects families." Reichard then testified that she had reviewed OCS's file, listened to most of the recordings of previous hearings in the case, and reviewed the parents' criminal histories on CourtView; on that basis she concluded that returning the children "to the care of either of their parents would likely result in severe emotional or physical damage to these children." She testified that Eva's substance abuse history was of the kind "that leads to neglect" and that Keith's history of "similar substance use issues and his being in and out of custody" made it unlikely that he could "create or maintain an appropriate or stable home for kids." The court relied on this testimony at the close of trial to conclude "beyond a reasonable doubt" that returning the children to Eva and Keith "would result in serious emotional or physical damage to the child[ren]."

2. ICWA's qualified expert witness requirement

To explain why we agree with Keith's argument that Reichard was not shown to be a qualified expert witness, we first identify the governing principles. In past cases discussing expert qualifications, we have looked to guidelines published by the Bureau of Indian Affairs (BIA), while acknowledging that they "are not regulations and are not binding." But in 2016 much of the guidelines' content was formalized in regulation. In response to the question "Who may serve as a qualified expert witness?," the regulation first explains:

A qualified expert witness must be qualified to testify regarding whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe.[ ]

This language is not inconsistent with the cases we decided under the earlier guidelines. Explaining the new regulation, the new guidelines recognize the difference between the mandatory word "must" and the admonitory word "should": the ability to testify about the risk of harm is required of every qualified expert witness, but the ability to testify about "the prevailing social and cultural standards" is not essential in every case. "[T]here may be certain circumstances where a qualified expert witness need not have specific knowledge of the prevailing social and cultural standards of the Indian child's Tribe in order to meet the statutory standard." For example, if termination is sought because of child sexual abuse, "a leading expert on issues regarding sexual abuse" does not also need to have expertise in the culture of the child's tribe. This distinction is one we have recognized, and the guidelines show that it remains valid.

The expert who is called to testify about issues that do not implicate different cultural norms need not have cultural expertise but still must be "qualified to testify regarding whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Another new regulation expands on the evidentiary standard the expert is addressing:

(c) ... [T]he evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of ... family ... substance abuse[ ] or nonconforming social behavior does not by itself constitute ... evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.[ ]

The guidelines explain, "These provisions recognize that children can thrive when they are kept with their parents, even in homes that may not be ideal in terms of cleanliness, access to nutritional food, or personal space, or when a parent is single, impoverished, or a substance abuser." The guidelines emphasize, therefore, that "there must be a demonstrated correlation between the conditions of the home and a threat to the specific child's emotional or physical well-being."

The expert witness who is qualified to draw this causal connection must have an "expertise beyond normal social worker qualifications." And the expert must not be "[t]he social worker regularly assigned to the Indian child," because "Congress wanted to ensure that State courts heard from experts other than State social workers seeking the action." A social worker other than the one assigned to the case may serve as "the qualified expert witness," but again, as with any ICWA qualified expert, "that person must have expertise beyond the normal social worker qualifications." We recognized this standard repeatedly in cases decided under the earlier guidelines, and it remains unchanged.

We have not specifically defined "normal social worker qualifications," though we have decided when they were surpassed and suggested when they might not have been. In In re Candace A. we determined that two witnesses were clearly qualified under the standard. "Both had 'substantial education in the area of [their] specialty': master's degrees in social work, internships in relevant subject areas as required for their degrees, agency training, and continuing professional education." One witness had worked as an OCS supervisor "overseeing hundreds of cases, identifying safety threats, and having ultimate responsibility for custody decisions; as an OCS line worker assessing reports of harm; and as a school administrator and social worker in Arizona working with the diverse behavioral and education needs of students and their families." The other witness "had a lengthy work history as a mental health clinician, working with children with emotional and behavioral problems in a variety of institutional and agency settings, as well as a private practice of custody investigations and adoption home-studies," and had worked specifically with the child at issue as the child's "own clinician, treating her in both individual and group therapy." We concluded that both witnesses were highly qualified to testify about the potential harm to the child if returned to her parents' custody and that the trial court erred by excluding their testimony.

In Payton S. v. State, Department of Health & Social Services, Office of Children's Services , a mother challenged the expert qualifications of an OCS regional manager. We rejected the challenge - which was based on the witness's lack of expertise in the relevant Native culture - in part because the mother did not challenge on appeal the trial court's independent ground for qualifying the witness: that she was a "professional person" with "expertise beyond the normal social worker qualifications." We found the relevant findings "well supported by the testimony at trial." The witness had "a master's degree in social work, [was] a licensed master's-level social worker, and [took] 45 hours of continuing education every two years, including substantial class work related specifically to Alaska Natives and substance abuse." She had served in "supervisory and management positions in Juneau, St. Mary's, and Bethel." In testimony she

described her practicums at Alaska Psychiatric Institute (where she performed psychological assessments) and the Salvation Army's Clitheroe Center for treating substance abuse; her continuing training in fetal alcohol spectrum disorder, domestic violence, family services assessments, case planning, brain development, and trauma; and her participation in a tribal-state collaboration that [met] regularly to discuss brain development and the impact of trauma.[ ]

In Marcia V. v. State, Office of Children's Services , we reviewed for plain error the superior court's decision that an OCS supervisor was an ICWA-qualified expert. The witness had a bachelor of science degree in Administration of Justice, had worked for OCS for seven years including three as a supervisor, identified 13 "trainings in various areas of child protection she received" over the course of six years, and had testified as an expert in four other cases. "Based on these qualifications, we conclude[d] that the court did not abuse its discretion in qualifying [the witness] as an expert on child welfare." But we recognized that whether she had "expertise beyond that of a normal social worker," as required by ICWA, was a distinct question that "require[d] further inferences." We noted that the witness might have that expertise, but "[i]deally counsel would have inquired more deeply into the specialized areas in which [the witness] was claimed to be expert, particularly the effects of parental substance abuse on children." We concluded that the record did "not unambiguously reflect a foundation for [the witness] having the 'expertise beyond the normal social worker qualifications' " required by ICWA; however, in the absence of objection, and "[b]ecause it was possible to infer from [the witness's] known qualifications that she possessed the qualifications necessary under ICWA, it was not plain error for the trial court to accept" the parties' acquiescence in the testimony.

Similarly, in Lucy J. v. State, Department of Health & Social Services, Office of Children's Services , we considered a mother's challenge to the qualifications of an OCS supervisor who testified as an expert witness. We noted that she had "a masters in social work, ha[d] worked at OCS for six years, ha[d] served as a supervisor for four years, [was] licensed by the State of Alaska as a masters level social worker, and ha[d] had many trainings, including some that were ICWA specific." We concluded that it was "not clear" whether the witness had "expertise beyond the normal social worker qualifications" but that the mother had not objected at trial; as in Marcia V. , "it was possible to infer from [the witness's] known qualifications that she possessed the qualifications necessary under ICWA," and therefore it was not plain error for the court to accept the testimony.

3. Reichard's testimony did not show that she met the heightened standard for qualified expert witnesses under ICWA .

The record supports the superior court's finding that Reichard was qualified to testify about the topic on which OCS offered her testimony: "the delivery of child protective services to families on the YK Delta." But we cannot conclude on this record that her qualifications met the heightened standard ICWA requires for expert testimony about the relevant issue: "whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." A qualified expert under ICWA "must be qualified to testify" about this important causal relationship. And evidence of causation is significantly different from "evidence that shows only the existence of ... family ... substance abuse[ ] or nonconforming social behavior."

Reichard's extensive experience as a GAL undoubtedly exposed her to many of the types of conduct and conditions that cause children to be in need of aid; as she explained, a large majority of her cases involved "substance abuse impacting parenting or domestic violence." She was well qualified to recognize a correlation between parental conduct and emotionally or physically damaged children, and that is what she testified about. When asked how Keith's time in prison "create[d] [an] inappropriate or unstable environment," Reichard answered by describing Keith's recurrent problems with drinking, getting arrested, and going to jail. Asked "what specifically might happen ... to the boys' development if they're moved without having a safe parental home to go to," Reichard responded that "it's really difficult for kids to go from a stable environment to one of chaos and not have any ill effects." In these answers is an assumption that an unsettled and chaotic environment is proof enough of likely harm to children. But ICWA rejects this assumption: it recognizes "that children can thrive when they are kept with their parents, even in homes that may not be ideal in terms of cleanliness, access to nutritious food, or personal space, or when a parent is single, impoverished, or a substance abuser." The expert must therefore be qualified to address how these conditions pose "a threat to the specific child's emotional or physical well-being."

Reichard did not address causation, as framed in the regulation, by testifying about how Keith and Eva's conduct was likely to cause "serious emotional or physical damage to" the two boys. She drew no connections between specific conduct and the likelihood of specific harm. We have held in the past that expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider "reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record." But when expert testimony is required in order to support termination in ICWA cases, trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.

We do not mean to say that a GAL may not be a qualified expert witness for ICWA purposes. While not listing required qualifications, we do note that witnesses we have considered to be clearly qualified under ICWA had substantial education in social work or psychology and direct experience with counseling, therapy, or conducting psychological assessments. In two other cases we affirmed the trial court's acceptance of OCS witnesses only because the applicable standard of review - for plain error - allowed us to assume that "expertise beyond that of a normal social worker" could be inferred from the witnesses' qualifications, which in both cases included extensive OCS experience and in one case - Lucy J. - master's-level licensure in social work. In Marcia V. we noted with concern the absence of testimony showing that the witness, notwithstanding her extensive experience as an OCS supervisor, was really an expert in "the effects of parental substance abuse on children."

We have the same concern here. Reichard testified about her long experience as a GAL and her involvement in many child in need of aid cases in the Yukon-Kuskokwim Delta. Her testimony shows that, like an experienced OCS social worker, she recognized the sorts of conduct and conditions that regularly cause children to be in need of aid. But she testified that she had no formal training in social work, psychology, or counseling, and she had no professional tools - other than her "experience as an attorney and as a guardian ad litem" - for recognizing mental health issues. We are unable to conclude that Reichard's testimony supports a finding that she was qualified under ICWA to testify as an expert about the key issue here: whether returning the children to Keith and Eva's care was "likely to result in serious emotional or physical damage to the child[ren]."

Because we agree with Keith that Reichard's testimony did not satisfy the heightened standard of ICWA, we reverse the termination order.

V. CONCLUSION

We REVERSE the superior court's order terminating the parents' rights to their two children and REMAND this case for further proceedings consistent with this opinion.

      Pseudonyms are used for all family members.

      Bob S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 400 P.3d 99, 105 (Alaska 2017).

      Christina J. v. State , Dep't of Health & Soc. Servs., Office of Children's Servs. , 254 P.3d 1095, 1103-04 (Alaska 2011).

      Id. at 1104.

      25 U.S.C. § 1912(f) (2012) ; see also CINA Rule 18(c)(4).

      Bob S. , 400 P.3d at 108.

      We note that Keith argues this issue on appeal although he expressly took no position on it in the superior court, whereas Eva objected to Reichard's qualifications at trial but does not address the issue on appeal. OCS does not argue that the issue is improperly raised or that we should apply plain error review; we therefore proceed as if the issue were properly preserved for appellate review.

      Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504 (Alaska 2009).

      25 C.F.R. § 23.122 (2018); see Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta , 458 U.S. 141, 142, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) ("Federal regulations have no less pre-emptive effect than federal statutes."); In re S.B. , 130 Cal.App.4th 1148, 30 Cal.Rptr.3d 726, 731 (2005) (noting that ICWA regulations are binding on state courts).

      25 C.F.R. § 23.122(a) (emphasis added).

      U.S. Dep't of the Interior, Guidelines for Implementing the Indian Child Welfare Act 54 (2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf [hereinafter 2016 Guidelines ]

      Id.

      See L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 952-53 (Alaska 2000) (concluding that "where there is clear evidence that a child faces a serious risk of physical neglect if she remains in her parent's care, a trial judge may terminate parental rights without hearing testimony from an expert in Native cultures").

      2016 Guidelines , supra note 11, at 53.

      25 C.F.R. § 23.121 (2018).

      2016 Guidelines , supra note 11, at 53.

      Id. We assume that the guidelines' use of the word "correlation" here rather than "causation" is inartful. "It is axiomatic in logic and in science that correlation is not causation. This adage counsels that it is error to infer that A causes B from the mere fact that A and B occur together." Craig ex rel. Craig v. Oakwood Hosp. , 471 Mich. 67, 684 N.W.2d 296, 312 (2004) (footnote omitted); see also Norfolk & W. Ry. Co. v. Ayers , 538 U.S. 135, 173, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) ("Correlation is not causation.").

      2016 Guidelines, supra note 11, at 54 (quoting H.R. Rep. No. 95-1386, at 22 (1978)).

      25 C.F.R. § 23.122(c) (2018).

      2016 Guidelines , supra note 11, at 54.

      Id. at 55.

      See, e.g. , Bob S. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs., 400 P.3d 99, 108 (Alaska 2017) ; Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504-05 (Alaska 2009).

      332 P.3d 578, 586 (Alaska 2014).

      Id.

      Id.

      Id.

      Id.

      349 P.3d 162, 171-72 (Alaska 2015).

      Id. at 172.

      Id. at 171.

      Id.

      Id.

      Id. ; see also Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 216 P.3d 1180, 1191 (Alaska 2009) (observing that proposed witness's "substantial education" - master's and doctor's degrees in clinical psychology - constituted "expertise beyond the normal social worker qualifications").

      201 P.3d 496, 504-05 (Alaska 2009).

      Id. at 505.

      Id.

      Id.

      Id.

      Id.

      244 P.3d 1099, 1118-19 (Alaska 2010).

      Id.

      Id. at 1119.

      25 C.F.R. § 23.122(a) (2018).

      Id. (emphasis added).

      25 C.F.R. § 23.121(d) (2018).

      2016 Guidelines , supra note 11, at 53.

      Id.

      Diana P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 355 P.3d 541, 548 (Alaska 2015).

      There were no challenges to the qualifications of the expert witnesses in Diana P. ; both testified without objection "as experts in the diagnosis and treatment of substance abuse and substance-abuse-related disorders." 355 P.3d at 544.

      See e.g. , Payton S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 349 P.3d 162, 171-72 (Alaska 2015) (expert had master's degree in social work, master's-level license, and performed psychological assessments during practicums at psychiatric hospital); In re Candace A. , 332 P.3d 578, 586 (Alaska 2014) (two experts had master's degrees in social work and extensive clinical experience); Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 216 P.3d 1180, 1191 (Alaska 2009) (expert had master's and doctoral degrees in clinical psychology).

      Lucy J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. , 244 P.3d 1099, 1118-19 (Alaska 2010) ; Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504-05 (Alaska 2009).

      Marcia V. , 201 P.3d at 505.

      Reichard's generalized description of her responsibilities as a GAL tracks the duties of an OCS caseworker: "It was looking after the best interests of children which involved working with families, with OCS and with social workers to try to help families, whatever their problems may be.... [I]t was just trying to formulate case plans to try to help families sort of work through their problems and to reunite them."

      The parents raise other claims on appeal. Eva contends that the superior court clearly erred by finding that she failed to remedy, within a reasonable time, the harmful conduct that caused the children to be in need of aid and by finding that terminating her parental rights was in the children's best interests. Keith contends that the superior court clearly erred by finding that OCS made active efforts to prevent the breakup of the family. We see no error in the court's decision of these issues on the record then before it, but we recognize that the evidence will be different on remand due to the passage of time.


author: Judge MANNHEIMER.

text:
    Victoria Diamond LOVE, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-11949
    Court of Appeals of Alaska.
    November 30, 2018
    Paul E. Malin, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Saritha R. Anjilvel, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge MANNHEIMER.

Victoria Diamond Love assaulted three persons in another apartment in the complex where she lived. Following a jury trial, Love was convicted of second-, third-, and fourth-degree assault for slicing the fingers of one of her victims with a knife, for brandishing the knife in a threatening manner, and for putting another of her victims in fear of imminent physical injury.

The pre-sentence report in Love's case included two pages of recommended conditions of probation. Love's attorney did not object to any of these proposed probation conditions. In fact, the only time the defense attorney mentioned the proposed conditions of probation was when the attorney told the judge that Love did not object to a probation condition prohibiting her from returning to the apartment building.

When the judge imposed Love's sentence, he did not specifically mention all of these proposed probation conditions. Instead, the judge mentioned only a few of the special conditions of probation listed in the pre-sentence report. But later, when the judge issued the written judgement in Love's case, this judgement included all of the conditions of probation proposed in the pre-sentence report.

In this appeal, Love challenges four of the special conditions of probation that the judge did not explicitly mention when he imposed Love's sentence. Love contends that the inclusion of these four conditions in the court's written judgement constitutes an illegal increase in her sentence - a violation of the double jeopardy clause.

We reject Love's double jeopardy claim because the record of the sentencing proceedings shows that the prosecutor, the defense attorney, and the judge were all operating with the understanding that, in the absence of an objection, the judge would impose all of the recommended conditions of probation.

At the sentencing hearing, the judge referred to the recommended probation conditions as a group. For example, the judge asked whether these recommended probation conditions included a provision for mental health treatment. When the prosecutor replied that such a condition was included, the judge responded, "Good, good." And at another point in the sentencing hearing, after one of Love's neighbors expressed fear that Love might return to their apartment building after she served her time in prison, the judge stated that he was going to "expand" the conditions of probation by adding a "do-not-return-to-the-apartment condition". In addition, during the sentencing, one of the victims voiced the fear that Love would return to the apartment complex and hurt her or her sister (with whom she lived). The judge addressed this concern by telling the victim that the list of recommended probation conditions included a "no-contact" order that prohibited Love from contacting the victims in the future. The judge advised the victim that if Love contacted her sister following her release, she should call the police.

Based on this record, we conclude that the judge intended to impose all of the conditions of probation proposed in the pre-sentence report, and that both the prosecutor and Love's attorney understood this to be the case. We therefore find that the judge did not violate the double jeopardy clause when he included all of these recommended probation conditions in his written judgement, even though he did not explicitly mention all of these conditions during his sentencing remarks.

Love separately challenges Special Probation Condition 5, which requires Love to take any medication prescribed for her by a licensed medical practitioner approved by her probation officer. This probation condition is subject to special scrutiny because it restricts Love's right of self-determination regarding medical treatment, and also because it potentially requires Love to take psychotropic medication against her will. However, Love did not object to this condition of probation, so she must now show plain error.

Although, on its face, the challenged probation condition applies to any and all medications that might be prescribed by Love's doctors, the probation condition must be interpreted in the context of Love's case. Given this context, we interpret the probation condition as applying only to mental health medication that Love's medical providers deem necessary for her rehabilitation and/or the safety of the public.

However, this interpretation brings the challenged probation condition squarely within the scope of our recent decision in Kozevnikoff v. State , 433 P.3d 546, 2018 WL 3679314 (Alaska App. 2018). And based on Kozevnikoff , we conclude that the challenged probation condition is plain error, at least in its present form.

In Kozevnikoff , this Court held that even when the record suggests that a defendant might need psychotropic medication, the sentencing judge must not impose a condition of probation that requires the defendant to take such medication against their will unless the judge has held a hearing "where medically informed expert testimony ... is presented to the judge", and where the defendant has "the opportunity to present [their] own expert testimony, and to argue for alternatives to any medication at all, or to a particular medication." Id ., 433 P.3d at 548, 2018 WL 3679314 at *2.

(We also recognized that, especially when the defendant receives a lengthy term of imprisonment, it is often better to make this type of decision closer to the time when the defendant is released on probation. Thus, a sentencing judge has the authority to impose a condition of probation that calls for a judicial hearing near the date of the defendant's release if, at that time, the circumstances appear to justify compelled medication. Ibid. )

The record in Love's case is plainly insufficient to satisfy the procedural requisites set forth in Kozevnikoff . Accordingly, we vacate this condition of Love's probation, and we direct the superior court to reconsider it.

If, upon reconsideration, the superior court concludes that the facts justify a probation condition that could potentially require Love to take psychotropic medication against her will, this probation condition must be written in such a way that Love can seek judicial review before she is required to take the medication, and before she faces revocation of her probation for refusing to take the medication. This prior review is necessary because of the serious and lasting side-effects that some mental health medications can cause. See Myers v. Alaska Psychiatric Institute , 138 P.3d 238, 246-48, 254 (Alaska 2006).

Conclusion

With the exception of Special Condition of Probation 5, the judgement of the superior court is AFFIRMED. Special Condition 5 is VACATED, and the superior court is directed to reconsider whether this probation condition is justified. If the superior court finds that the probation condition is justified, the court must modify the probation condition so that it conforms to the requirements explained in this opinion.

We do not retain jurisdiction of this case.

      AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively.

      Alaska Constitution, Article I, Section 9.

      See Kozevnikoff v. State , 433 P.3d 546, 546-48, 2018 WL 3679314 at *1-2 (Alaska App. 2018). See also United States v. Williams , 356 F.3d 1045, 1055-57 (9th Cir. 2004).

      State v. Ranstead , 421 P.3d 15, 21-23 (Alaska 2018).