author: CARNEY, Justice.

text:
    Guy Alan BERRY Jr., Appellant, v. Colleen Marie COULMAN, Appellee.
    Supreme Court No. S-16868
    Supreme Court of Alaska.
    April 26, 2019
    Guy Alan Berry, Jr., pro se, Lillington, North Carolina.
    No appearance by Appellee Colleen Marie Coulman.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A father appeals an order modifying his child support obligation. He first argues that the superior court lacked subject matter jurisdiction to modify the order. He alternatively argues that the court abused its discretion by modifying the support order without sufficient proof of a material change in circumstances. Lastly, the father argues that the court impermissibly retroactively modified the support order.

We hold that the superior court properly exercised its jurisdiction in modifying the support order, that it did not abuse its discretion in modifying the order because there was sufficient proof of material change of circumstances, and that the one-day retroactive modification is a de minimis error that does not require correction. We therefore affirm the superior court's order modifying child support.

II. FACTS AND PROCEEDINGS

Guy Berry and Colleen Coulman have a daughter who was born in May 2010. Berry and Coulman never married. Berry is a soldier; he was stationed at Fort Wainwright until shortly before their daughter was born, when he was transferred to Fort Bragg, North Carolina. Berry and Coulman did not have a custody agreement. Coulman had sole physical custody of their daughter from her birth. After Berry's transfer Coulman contacted Alaska's Child Support Services Division (CSSD) for assistance in obtaining child support from Berry. In May 2011 CSSD entered an order requiring Berry to pay Coulman $ 773 per month in child support.

In September 2014 Berry, representing himself, filed a complaint in Fairbanks superior court requesting sole legal and physical custody. When he filed the custody complaint, Berry lived in North Carolina and asserted that Coulman and their daughter lived in Alaska. Coulman retained counsel and answered Berry's complaint. She stated that she and her daughter were living in Germany, not Alaska.

In October 2015 the superior court held a status hearing to address questions about its subject matter jurisdiction over the custody dispute. The court concluded it had jurisdiction to determine child custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court entered a temporary custody order granting Coulman primary physical custody and shared legal custody with Berry. The temporary custody order did not address child support.

In March 2016 Coulman filed a motion to modify child support, arguing that the child support guidelines affidavit Berry had filed in September 2014 was "stale." Coulman asked the court to order Berry to file a current child support affidavit with supporting income tax returns and military leave and earnings statements. At a status hearing on the motion, Berry asked for more time to respond, but ultimately agreed to provide updated financial disclosures.

In April Berry filed an updated affidavit and accompanying documents. Shortly thereafter Coulman sent discovery requests to Berry seeking additional information and documents about his income, specifically showing how his pay was affected by his deployments. Berry filed objections and responses to Coulman's discovery requests with the superior court. Over the next nine months they continued to litigate issues relating to Berry's financial disclosures. They did not revisit the court's ruling with regard to its jurisdiction.

In January 2017 Coulman filed a "Motion For Modification Of Interim Child Support To Maximum Levels." She accused Berry of bad faith during discovery and argued that his incomplete financial disclosures showed that he was "hiding his income" and "making it impossible to accurately calculate child support." She argued that a "suitable remedy" would be to set child support at the maximum level unless Berry complied with Alaska Civil Rule 90.3 and the orders of the court. In response the court ordered that child support would be based upon the maximum income for child support calculations ($ 120,000) unless Berry filed and served a complete Rule 90.3 income affidavit with an unredacted income tax return and his last three military leave and earnings statements.

Berry retained counsel and opposed Coulman's motion later that month, apparently filing his opposition the same day that the court distributed its order. For the first time Berry argued that CSSD was the only Alaskan tribunal that had continuing, exclusive jurisdiction to modify the order. A week later Berry filed an updated child support affidavit.

The court denied Coulman's motion to set the child support at the maximum level in April and ordered Coulman to lodge an interim child support order setting the amount at $ 791.72 per month, effective October 1, 2014, based on Berry's recently filed child support affidavit.

Later that month Berry moved for reconsideration of the modification order. Berry reiterated his argument that only CSSD, the tribunal that established the original child support obligation, had continuing, exclusive jurisdiction to modify it. He also argued that the court had impermissibly modified the support order retroactively by making it effective on October 1, 2014, when Coulman had not filed her modification motion until March 2, 2016. Lastly Berry argued that there was insufficient proof of a "material change of circumstances" to warrant a modification under Rule 90.3.

The superior court addressed Berry's motion for reconsideration before the start of the scheduled custody trial in May 2017. The court (and Coulman's counsel) agreed that the effective date should be the date the motion to modify was filed and served. The court explained that it had not realized there was an existing order when it set the effective date as October 1, 2014.

Berry testified at trial that he lived in North Carolina but was a legal resident of Alaska, and that he maintained his Alaska residency because he and his wife intended to move back to the state upon his separation from the military. Berry stated that he was able to maintain his Alaska residency through the Servicemembers Civil Relief Act (SCRA). He testified that he did not have an Alaska driver's license, but did not pay state income tax in North Carolina because of his Alaska residency. Berry also testified he intended to claim an Alaska Permanent Fund Dividend (PFD) in 2017 because he was physically present in Alaska for the custody trial.

At the close of trial the superior court briefly addressed the issue of jurisdiction, referring to its November 2015 order and asserting that it had subject matter jurisdiction to modify the support order pursuant to the UCCJEA. The court noted that Berry had not raised the issue and that it would therefore proceed to the merits of the case.

Shortly after trial Coulman lodged a proposed order modifying CSSD's 2011 support order. Her proposed order required Berry to pay three different support amounts: $ 795.00 per month from March 1, 2016, until June 30, 2016; $ 1,018.29 from July 1, 2016, until January 31, 2017; and $ 819.55 beginning February 1, 2017. The three different amounts were based upon the formula in Rule 90.3 and accounted for differences in Berry's income during his deployment from July 2016 to January 2017 and then upon his return.

Berry objected to Coulman's proposed order. He again argued that only CSSD could modify the 2011 support order. Berry also argued that there was no material and substantial change in circumstances to warrant modification of the support order. Berry addressed the different support obligations in the proposed order separately and argued that the proposed amounts for March through June 2016 and from February 2017 onward were modifications of less than 3% and less than 6% respectively-far below the 15% threshold for a presumed change in circumstances. Berry also argued that his deployment from July 2016 to January 2017 was temporary and not a permanent change in income, so it should not be used as the basis for modification. Finally he argued for the first time that Alaska no longer had jurisdiction to modify the order pursuant to AS 25.25.205 and the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA).

Coulman replied, arguing that pursuant to AS 09.05.010 Berry had put child support at issue when he filed his custody complaint. In response to Berry's newly raised jurisdictional argument, Coulman emphasized that support is part of custody under Rule 90.3.

The superior court issued its final custody order in September 2017. It ordered shared legal custody between the parents and awarded Coulman primary physical custody. The order's only reference to child support states:

Child support shall be ordered pursuant to Rule 90.3 of the Alaska Rules of Civil Procedure. A child support order shall enter separately. It is recognized that a judicial child support order is being entered over [Berry's] objections. Such objections were previously raised on the record in this matter.

On the same day the court signed Coulman's proposed order modifying child support. The court did not otherwise address Berry's objections or expressly state its jurisdictional basis for modifying the order.

Berry appeals the superior court's order modifying child support. He has not appealed any aspect of the court's custody order.

III. STANDARD OF REVIEW

Whether a court has jurisdiction to modify a child support order presents a question of subject matter jurisdiction, which is a question of law that we review de novo. "We reverse child support awards only if the superior court abused its discretion, applied an incorrect legal standard, or clearly erred in its factual findings." Upon a showing of a material change of circumstances as provided by state law, the superior court may modify a final child support award. "[W]e review a decision by the superior court to modify child support for an abuse of discretion."

IV. DISCUSSION

A. The Superior Court Had Subject Matter Jurisdiction To Modify The Order.

Berry argues that the superior court lacked continuing and exclusive jurisdiction to modify the 2011 child support order. He argues that Alaska does not have jurisdiction because neither the child nor the parties lived in Alaska when the motion to modify was filed. He also argues that only CSSD and not the superior court has authority to modify the order that CSSD issued. He relies on the FFCCSOA and the Uniform Interstate Family Support Act (UIFSA), which was adopted and codified at AS 25.25.101 - .903. Alaska Statute 25.25.205 outlines the superior court's jurisdiction to modify an existing support order. It provides:

(a) A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and,
(1) at the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
(2) even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.

To address Berry's arguments we must determine whether the statute provides the support he claims. When we engage in statutory interpretation "[w]e interpret the statute 'according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose' "; we apply "a sliding scale approach, where '[t]he plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.' " To determine whether the statute supports Berry's argument, we must identify the controlling order, determine Berry's residence, and decide whether the superior court can modify an order issued by CSSD. We address each question below.

1. The 2011 support order is the controlling order.

There is no dispute that the 2011 support order entered by CSSD is the controlling order at issue-Berry has not asserted, nor is there any evidence, that any other existing support order would control.

2. We define "residence of the obligor" to mean "domicile. "

We must next consider whether Alaska was Berry's "residence" when Coulman filed the motion to modify. Berry argues that even though he is "allowed to maintain Alaska as his state of residence for federal tax purposes because he is in the military that does not mean that [he] is a resident or is residing in Alaska." Berry testified that he maintains Alaska as his state of residence for tax purposes pursuant to the SCRA and that he intends to return to Alaska after he retires from the army.

We have not previously had occasion to define the meaning of the term "residence" in UIFSA. The term is not defined elsewhere in the child support statutes. A separate definitional statute, AS 01.10.055, defines "residency" by focusing on a person's intent:

(a) A person establishes residency in the state by being physically present in the state with the intent to remain in the state indefinitely and to make a home in the state.
(b) A person demonstrates the intent required under (a) of this section
(1) by maintaining a principal place of abode in the state for at least 30 days or for a longer period if a longer period is required by law or regulation; and
(2) by providing other proof of intent as may be required by law or regulation, which may include proof that the person is not claiming residency outside the state or obtaining benefits under a claim of residency outside the state.
(c) A person who establishes residency in the state remains a resident during an absence from the state unless during the absence the person establishes or claims residency in another state, territory, or country, or performs other acts or is absent under circumstances that are inconsistent with the intent required under (a) of this section to remain a resident of this state.

Courts in other states have recognized that "residence" can have both a broad general meaning and a narrower legal meaning akin to "domicile." A California court of appeals explained:

Courts and legal writers usually distinguish "domicile" and "residence," so that "domicile" is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively; whereas "residence" connotes any factual place of abode of some permanency, more than a mere temporary sojourn. "Domicile" normally is the more comprehensive term, in that it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time.[ ]

Given that UIFSA was intended to ensure uniform treatment of child support orders in different states and provides for "exclusive" jurisdiction based on residence, the California court determined that "residence" must be defined narrowly: "[U]nder the UIFSA, it is assumed that a person cannot have more than one residence. This, however, does not comport with the more general definition of residence noted above.... Instead, 'residence,' for the purpose of the UIFSA, must mean 'domicile,' of which there can be only one."

The Utah court of appeals in Lilly v. Lilly reached the same conclusion for similar reasons. It noted that UIFSA was intended to ensure that only one child support order would be valid at a given time. It recognized that interpreting "residence" to mean "physical residence would potentially vest more than one state at a time with jurisdiction to modify a single child support order" which "could lead to competing modifications of child support orders-a troublesome result that clearly contravenes UIFSA's purpose."

Other states have reached a different conclusion and given the term "residence" a broader meaning. But after considering Alaska's general residency statute, which focuses on an individual's intent to remain in the state, and the purposes of UIFSA, we find that it would be inconsistent with these aims to adopt a broad definition of "residence." We therefore conclude that the "residence of the obligor" in AS 25.25.205 means the obligor's "domicile." That is the place where the obligor intends to remain or the place that is the obligor's legal residence.

3. Berry's residence is Alaska.

Berry testified at the custody trial that he maintains Alaska as his state of residence for tax purposes pursuant to the SCRA. He also testified that he intends to return to Alaska upon his retirement from the military. Under AS 01.10.055 Berry is an Alaska resident: he enjoys legal benefits from his continued legal residency in the state, and he intends to return and make Alaska his home. Because Alaska was Berry's residence when he filed his motion to modify custody, Alaska had jurisdiction to modify the 2011 support order.

4. Alaska Statute 25.25.205 empowers the superior court to exercise jurisdiction to modify a support order issued by CSSD.

Berry reiterates his argument that, even if the State of Alaska has the authority to modify the order, the only tribunal in the state that could modify the order is CSSD. Alaska Statute 25.25.101(29) defines a tribunal as "a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child." Alaska Statute 25.25.102(a) states that "[t]he superior court and the child support services agency are the tribunals of this state."

We have never before been asked to determine whether the language in AS 25.25.205 was intended to limit not just which state exercises jurisdiction over a support order but also the specific tribunal that can exercise jurisdiction. But it does not appear that such a restrictive reading of AS 25.25.205 would serve UIFSA's aim of preventing multiple support orders being entered. Consequently, we construe "tribunal" to refer to both of the listed tribunals-the superior court and CSSD-as long as the tribunal's modification of an order otherwise complies with Alaska law. The superior court appropriately exercised subject matter jurisdiction when it modified CSSD's 2011 support order.

B. There Was A Material Change Of Circumstances.

Berry argues that Coulman failed to show by a preponderance of the evidence that a material change of circumstances occurred as contemplated by Rule 90.3. Rule 90.3(h)(1) states:

A final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order.[ ]

The aggregate changes in Berry's income over the time periods specified in Coulman's motion to modify exceeded the 15% presumptive threshold. Berry contends that it was error for the superior court to include the income from his six-month deployment between July 2016 and January 2017 in its calculations, since this change in income was temporary; if his deployment income is excluded, his change in income falls short of the 15% threshold. While short-term income changes generally do not justify modifications of ongoing support awards, we stated in Swaney v. Granger that "a child support award that is applicable to a past period should be based on a parent's actual income for that period." And the commentary to Rule 90.3 states that a military member's specialty pay is included as income.

The superior court had evidence before it establishing three relevant time periods based on Berry's actual pay and showing that, taken together, his income had changed by more than 15% during the time periods at issue. Given our pronouncement in Swaney , this both met the 15% threshold for a material change in circumstances and was an appropriate method for calculating support covering past periods.

V. CONCLUSION

We AFFIRM the superior court's order modifying child support.

      Berry stated at the October 2015 hearing on the jurisdictional motion that he maintained Alaska as his residence. Throughout the pendency of this custody action Berry was either stationed in North Carolina or deployed overseas.

      Alaska has codified the UCCJEA at AS 25.30.300 -.910. AS 25.30.300(a) states: "Except as otherwise provided in AS 25.30.330, a court of this state has jurisdiction to make an initial child custody determination only if ... no court of another state would have jurisdiction under the criteria specified in (1)-(4) of this subsection." The court concluded that "state" referred to the states of the United States, and since the only viable location for the custody case besides Alaska was Germany, the court "provisionally assume[d] subject matter jurisdiction."

      See Alaska R. Civ. P. 90.3(e) (requiring each parent in a proceeding involving child support to "file a statement under oath which states the parent's adjusted annual income" along with a breakdown of that income and verification documents).

      50 U.S.C. § 4001(a)(1) ("A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders."); 50 U.S.C. § 4001(b) ("Compensation of a servicemember for military service shall not be deemed to be income for services performed or from sources within a tax jurisdiction of the United States if the servicemember is not a resident or domiciliary of the jurisdiction in which the servicemember is serving in compliance with military orders.").

      AS 43.23.005(a)(4) allows active-duty members of the military who are otherwise eligible for a PFD to maintain their eligibility while stationed out of state as long as they have "been physically present in the state for at least 72 consecutive hours at some time during the prior two years before the current dividend year."

      See AS 25.30.300(a), (a)(5) (providing for "jurisdiction to make an initial child custody determination" if "no court of another state would have jurisdiction" to do so under the criteria set out by the statute). We note that the UCCJEA and the court's November 2015 order dealt with its jurisdiction to determine child custody, not its jurisdiction to modify support. But Rule 90.3 contemplates support awards in the context of custody determinations. Alaska R. Civ. P. 90.3(a). And as we discuss below, because Berry affirmatively claimed Alaska residency at trial, the court's jurisdictional determination was proper. See AS 25.25.205(a)(1).

      See Alaska R. Civ. P. 90.3(a), (d), (f).

      Alaska R. Civ. P. 90.3(h)(1) provides for modification of a final child support award "upon a showing of a material change of circumstances," which is presumed if the support amount calculated under the rule differs by more than 15% from the existing support order.

      AS 25.25.205(a)(1) establishes jurisdiction for Alaska courts to modify a child support order issued by a tribunal of this state if Alaska "is the residence of the obligor, the individual obligee, or the child" at the time a motion to modify is filed. Berry argued that "[n]either parent nor the child in this case live[d] in Alaska" and that AS 25.25.205 could not therefore support jurisdiction.

      28 U.S.C. § 1738B. The FFCCSOA provides that a state court that issues a child support order "no longer has continuing, exclusive jurisdiction of the ... order" if that state "no longer is the child's [s]tate or the residence of any individual contestant" and the parties have not consented to the jurisdiction of courts of that state. 28 U.S.C. § 1738B(e)(2)(A). Berry argued that this meant his transfer to North Carolina had ended the Alaska court's jurisdiction to modify the order and that "[a]ny modification ... must be accomplished through the North Carolina court."

      See Teseniar v. Spicer , 74 P.3d 910, 913-14 (Alaska 2003) (analyzing whether Alaska court had subject matter jurisdiction under AS 25.25.205 to modify child support order).

      Sherrill v. Sherrill , 373 P.3d 486, 489 (Alaska 2016) (citing Vanvelzor v. Vanvelzor , 219 P.3d 184, 187 (Alaska 2009) ).

      Holmes v. Holmes , 414 P.3d 662, 666 (Alaska 2018) (citing O'Neal v. Campbell , 300 P.3d 15, 16 (Alaska 2013) ).

      Id. at 667 (quoting Alaska R. Civ. P. 90.3(h)(1) ).

      Id. (quoting Richardson v. Kohlin , 175 P.3d 43, 46 (Alaska 2008) ).

      Ch. 57, §§ 1-28, SLA 1995 (adopting UIFSA); see also Bartlett v. State, Dep't of Revenue ex rel. Bartlett , 125 P.3d 328, 330-31 (Alaska 2005) ("A complex statutory scheme of federal legislation exists to promote efficiency and enforcement of interstate child support judgments.... UIFSA[ ] and the ... FFCCSOA[ ] require states to enforce other states' child support judgments in order to create uniformity in interstate judgments.... Alaska ha[s] adopted UIFSA.").

      Reasner v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 394 P.3d 610, 617 (Alaska 2017) (quoting Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 1036 (Alaska 2008) ).

      Id. at 617 (alteration in original) (quoting State, Commercial Fisheries Entry, Comm'n v. Carlson , 270 P.3d 755, 762 (Alaska 2012) ).

      AS 25.25.205(a)(1).

      See 50 U.S.C. § 4001(a)(1) (providing that presence in jurisdiction solely pursuant to military orders does not alter servicemember's domicile or residence for tax purposes).

      AS 01.10.055 is part of a series of general definitions and rules of statutory construction to "be observed in the construction of the laws of the state unless the construction would be inconsistent with the manifest intent of the legislature." AS 01.10.020.

      See In re Marriage of Amezquita , 101 Cal.App.4th 1415, 124 Cal.Rptr.2d 887, 889 (2002) ; Kean v. Marshall , 294 Ga.App. 459, 669 S.E.2d 463, 465 (2008) ("The terms 'residence' and 'domicile' ... are not synonymous and convertible terms ...; questions of domicile and residence are mixed questions of law and fact.").

      Amezquita , 124 Cal.Rptr.2d at 889 (emphasis in original).

      Id. at 890 (construing California's then-current codification of UIFSA's provision for continuing, exclusive jurisdiction to modify child support).

      250 P.3d 994, 1000-01 (Utah App. 2011).

      Id. at 1001 (quoting Case v. Case , 103 P.3d 171, 174 (Utah App. 2004) ); accord Amezquita , 124 Cal.Rptr.2d at 890.

      Id.

      See, e.g. , State ex rel. SRS v. Ketzel , 47 Kan.App.2d 536, 275 P.3d 923, 927-28 (2012) (noting that "residence" is not synonymous with "domicile"); see also Unif. Interstate Family Support Act § 205 cmt. (amended 2015) ("[R]esidence is a fact for the trial court, keeping in mind that the question is residence, not domicile.").

      AS 01.10.055.

      AS 25.25.205(a)(1). While Berry's complaint for custody stated he was a "resident of Harnett County, North Carolina," his trial testimony provided sufficient evidence to confirm his Alaska residency as defined by AS 01.10.055.

      See Bartlett v. State, Dep't of Revenue ex rel. Bartlett , 125 P.3d 328, 330-31 (Alaska 2005) (noting that UIFSA and the FFCCSOA are aimed at creating uniformity among interstate judgments).

      Berry also passingly argues that his due process rights were denied. This argument has been waived: "[W]here a point is given only a cursory statement in the argument portion of a brief, [it] will not be considered on appeal." Windel v. Carnahan , 379 P.3d 971, 980 (Alaska 2016) (quoting Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991) ).

      We note that there is a potential inconsistency in the court rules commentary about whether a material change in circumstances showing is required in a case where there has not been a modification in over three years and ask the court rules committee to examine the issue. Compare Alaska R. Civ. P. 90.3 editors' note to Alaska R. Civ. P. 90.3(h)(1), with Alaska R. Civ. P. 90.3 cmt. X.A.

      See Curley v. Curley , 588 P.2d 289, 291 (Alaska 1979) (stating that in general a change in circumstances must be "more or less permanent rather than temporary" to warrant modifying support).

      297 P.3d 132, 139 (Alaska 2013). In Mitchell v. Mitchell we distinguished Swaney , seemingly identifying the cited passage as dicta. 370 P.3d 1070, 1078-79 (Alaska 2016). But the Mitchell opinion implicates a different issue than the one addressed in Swaney : whether awards for prospective support must always be based upon expected future income. Id. at 1079. In Mitchell we determined that the superior court could appropriately capture a past one-time withdrawal from a retirement account in a prospective award. Id. at 1079-80.

      Alaska R. Civ. P. 90.3 cmt. III.A.28.

      Berry argues that the superior court impermissibly retroactively modified the 2011 support order by entering an order with an effective date of modification of March 1, 2016, rather than March 2, 2016. The superior court did err in impermissibly retroactively modifying the order by one day. See Millette v. Millette , 177 P.3d 258, 266 (Alaska 2008) (considering a retroactive child support modification to be prohibited), overruled on other grounds by Geldermann v. Geldermann , 428 P.3d 477, 487 n.52 (Alaska 2018) ; Alaska R. Civ. P. 90.3(h)(2). We find this seeming clerical error was de minimis and therefore remand is not required. Cf. Fernau v. Rowdon , 42 P.3d 1047, 1055 (Alaska 2002) (concluding that alleged error in trial court's spousal support calculation was "negligible" and did not require remand).


source: Caselaw Access Project

author: WINFREE, Justice.

license: Public Domain

text:
    AMY S., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Supreme Court No. S-17008
    Supreme Court of Alaska.
    April 26, 2019
    J. Adam Bartlett, Anchorage, for Appellant.
    Laura Fox, Senior Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

A mother appeals the superior court's decision adjudicating her child as a child in need of aid, contending that the court relied in part on the record from her previous custody proceeding without giving her prior notice. The mother argues that by not giving her notice, the court violated her due process rights. Relying on cases involving judicial bias, she then claims that the superior court's due process violation warrants automatic reversal of the court's adjudication finding, or, alternatively, reversal on the basis that the error was not harmless.

We assume-without deciding-that the superior court violated the mother's due process rights, but we affirm the adjudication decision because she has failed to demonstrate that this alleged error was anything but harmless.

II. FACTS AND PROCEEDINGS

A. Emergency Petition For Adjudication

In June 2017 Amy S. took her son, Zoltan-age 11 and an Indian child under the Indian Child Welfare Act (ICWA) -to a hospital emergency room. Zoltan was experiencing homicidal and suicidal ideation, and hospital doctors determined he met the criteria for admission. Jack, Zoltan's father, had legal custody, and Jack's consent was needed for medical treatment. Jack refused consent because he believed there was no private insurance coverage for the $2,000 per day treatment, and he wanted time to figure out how to pay for it. Zoltan nonetheless was admitted, and the Department of Health and Social Services, Office of Children's Services (OCS) filed an emergency petition for a child in need of aid (CINA) adjudication under AS 47.10.011(4) and for temporary custody. OCS noted in its petition that Jack and Amy were involved in a "contentious" custody dispute and recounted some of OCS's history with the family, including 18 OCS reports filed against Jack and 5 against Amy. But OCS also noted that the vast majority of the reports were unsubstantiated.

B. Probable Cause Hearing

The superior court held a probable cause hearing over three days. At the beginning of the hearing the court referenced its prior participation in the parents' child custody case, stating: "There's been a long, protracted custody dispute between the parties. Under House Bill 200, that's actually a good thing, because we can hear some of the issues involving [Zoltan] simultaneously in both of the cases." On the hearing's third day, Jack agreed to stipulate that Zoltan was a child in need of aid under AS 47.10.011(8) so that he could continue receiving psychological treatment in a therapeutic group home. Jack had not yet determined whether Zoltan would qualify for insurance if he were discharged from OCS's custody, and Jack thought it best Zoltan remain in OCS's custody to continue receiving treatment.

The court then found Zoltan to be a child in need of aid under subsection (8) based on Jack's stipulation, "allegations in [OCS's] petition and ... recent motion practice ... in the domestic relations case." The judge asserted: "I could make th[e] probable cause finding just by ... taking judicial notice of the domestic relations file and under HB 200, I can do that. I can take judicial notice of the domestic relations file, and I'm expected and truly required to take notice of that file."

C. Adjudication Hearing

The superior court held a contested adjudication hearing in September and November 2017. OCS presented testimony from several witnesses about Amy's conduct and its effect on Zoltan, and Amy called her therapist to testify on her behalf.

1. OCS's evidence

Zoltan's therapist expressed concern that Amy appears to rely on Zoltan for comfort and that this could cause him difficulty building relationships later in life. Zoltan's caseworker shared this concern, testifying that she thought Amy was having "her emotional needs met by [Zoltan rather than] meeting his emotional needs." The caseworker also testified to concerns that, if Zoltan were returned to Amy's custody, Amy would be emotionally manipulative and encourage Zoltan to disengage from his father. The caseworker said that Amy had attempted to manipulate Zoltan while in his residential treatment facility by telling him that his dog was very sick and needed to be put down, when that was not true. This caused Zoltan to run away to try to see the dog. The caseworker also claimed that Amy talked to Zoltan on the phone while he was at school in violation of the facility's rules. The caseworker suspected that Zoltan's recent disengagement from phone calls with his father was the result of Amy's calls. In the caseworker's opinion, Amy's and Jack's inability to co-parent had directly contributed to Zoltan's mental health issues, and neither parent had taken steps to address the problem as of the adjudication hearing.

A mental health clinician testified about her experience supervising therapeutic visitation sessions between Zoltan and his parents. The clinician testified that, despite being asked by OCS not to discuss Zoltan's dog, Amy continued to discuss the dog during almost every visit. She testified that Amy once told Zoltan that, if he wanted, she would let him live with Jack. The clinician interpreted this as Amy trying to create a negative impression of Jack by implying that he does not respect what Zoltan wants. The clinician said that Amy struggled to take responsibility for her actions during their sessions together, instead focusing on things Jack had done wrong in the past. The clinician also said she heard Zoltan state that his father has a history of violence and that he knew this because Amy had told him. This statement was consistent with previous concerns that Amy had coached Zoltan to report abuse by his father.

A psychiatric nurse who supervised a visit between Zoltan and his parents when he was in the hospital testified that he made accusations against his father based on incidents that happened before Zoltan was born. When Amy was questioned about these accusations, she said that she could not control whether Zoltan read "documents" she had in the house. The nurse was concerned that Amy was telling Zoltan information about his father that he should not have been told.

A social worker OCS hired to write an expert report testified that she thought Amy and Zoltan had an "enmeshed relationship" and that Amy was alienating Zoltan from Jack. The expert report summarizes OCS's history with Zoltan dating back to 2009, Amy and Jack's custody case, and domestic violence protective order petitions Amy filed. The expert testified that protective services reports previously filed against Jack may have been "early signs" Amy was trying to alienate Zoltan from Jack. Her report states that there was evidence Amy may have coached Zoltan to report abuse by Jack. The expert testified that Amy's failure to comply with boundaries OCS set after assuming custody of Zoltan-by giving him gifts, having unauthorized phone calls, and sharing photos with him-set up an "unequal playing field" for Jack as the parent who complied with OCS's rules. The expert also testified that there was evidence Amy was encouraging Zoltan's negative feelings toward OCS.

2. Amy's evidence

Amy's therapist testified on her behalf. The therapist acknowledged that Amy had exhibited poor boundaries in her interactions with Zoltan in the past but said that Amy was making progress in therapy. The therapist testified that she had diagnosed Amy with adjustment disorder and major depressive disorder. The therapist gave conflicting answers when asked whether Amy could "safely parent" Zoltan. On direct examination the therapist testified that she thought Amy could safely parent Zoltan "[w]ith a little more parenting information and classes and practice." On cross-examination she clarified that "[a]s of today, I think [Amy] would be a safe parent" but that "I think [Amy] could be a better parent if she had more information as well."

The superior court stated it was not giving Amy's therapist's testimony much weight for several reasons. The court was not convinced the therapist "ha[d] undertaken all of the steps that would be necessary to determine whether there [we]re any personality disorders at play." The court specifically asserted that the therapist had failed to conduct "paper and pencil testing, psychometric testing of [Amy] which is a standard part of the repertoire for comprehensive psychological evaluation." The court further noted that the therapist is not a clinical psychologist, may have a conflict as Amy's therapist, and gave equivocal answers when asked about Amy's ability to parent safely. The court also thought the therapist's opinion was "based on a limited amount of information," noting:

[T]he records that [the therapist] said she has reviewed did not include the very voluminous pleadings in the domestic relations case. I have been working with this family for 10 years. I don't claim to have the qualifications or the expertise of someone of [the therapist's] caliber, but I have a lot more factual information about this family than I suspect she does. And the legislature's told me to use that in House Bill 200.

3. The court's findings

The court issued oral findings at the close of the hearing. It concluded that Zoltan "is no doubt a child in need of aid [under subsection (8) ] because of mental injury that has been caused both by the inability of the parents to co-parent and by [Amy's] ongoing hatred and acrimony with respect to [Jack] that she has passed on to her son." The court noted that "the primary problem that has created such significant mental health problems for [Zoltan] is [Amy's] current inability and past inability to acknowledge that both [Jack] and [Amy] have an important role to play in parenting [Zoltan]."

The court pointed to two specific facts in support of its conclusions. First, it agreed with the conclusions contained in the expert's report, discussing in detail parental alienation and actions Amy had taken that could have resulted in such alienation. Second, the court also mentioned Amy's "porous boundaries," providing as an example the incident the mental health clinician recounted in which Amy told Zoltan that, if he wanted, she would let him live with Jack. The court referred to the comment as "a terrifying proposition" for Zoltan, because after years of Amy telling him that she was the safe parent, she was suggesting that she would "just abandon" him to Jack.

D. Amy's Motion For Findings Of Fact And Conclusions Of Law

In January 2018 Amy filed a motion requesting "findings of fact and conclusions of law made by th[e] court in support of the finding that [Zoltan was] a child in need of aid." She argued that the court did not specify which facts it relied on in support of its oral findings, as required by Alaska Civil Rule 52(a). She contended it was clear that the court had in part relied on its knowledge of Jack and Amy's custody case and, other than Jack's attorney, the attorneys in the case were not "privy to those proceedings." Amy argued that the court appeared to have taken judicial notice of the custody case file and that the facts the court relied on from the custody file exceeded the permitted scope of judicial notice under Alaska Evidence Rule 201. OCS took no position on the motion.

In June the superior court issued a summary of the factual findings from Jack and Amy's custody case that informed its decision to adjudicate Zoltan as a child in need of aid. The summary does not discuss the CINA case; the court merely recounts some of the custody case proceedings that occurred between 2007 and 2017, briefly discussing the various pleadings, custody investigation reports, and oral and written findings. Almost none of the specific facts contained in the summary were referenced during the adjudication hearing.

Amy appeals the superior court's adjudication order on the basis that the court's consideration of facts from her custody case violated her procedural due process rights.

She does not challenge any of the superior court's underlying factual findings.

III. STANDARD OF REVIEW

"Whether due process rights are violated in a CINA case is a question of law that this court reviews de novo, adopting 'the rule of law that is most persuasive in light of precedent, reason and policy.' " Even if we conclude that an error has been committed, "[w]e must disregard harmless errors that have no substantial effect on the rights of parties or on the outcome of the case."

IV. DISCUSSION

A. We Review Amy's Claim De Novo Because She Did Not Have An Opportunity To Raise It In The Superior Court.

OCS argues that Amy did not challenge the superior court's consideration of custody case information in the adjudication proceeding, despite the court giving her "ample notice of [its] intent to consider the custody file," and thus that we should consider Amy's argument only if we find plain error. We generally "will not consider arguments that were not raised below, unless the issues establish plain error, or the issues (1) do not depend upon new facts, (2) are closely related to other arguments at trial, and (3) could have been gleaned from the pleadings." "[P]lain error exists in a CINA case where 'an obvious mistake has been made which creates a high likelihood that injustice has resulted.' "

But "an objection is not required to preserve an issue for appeal if the appealing party had no opportunity to make an objection." Under Alaska Civil Rule 46(f), "if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party." In Vent v. State the court of appeals applied Rule 46(f) and held that an applicant for post-conviction relief preserved a due process claim for appellate review because there had been no opportunity to object to the superior court's consideration of material outside the record. The applicant did not discover that the judge had conducted independent research until the judge issued written findings.

OCS points to four instances of the court referencing the custody file and argues that Amy should have objected following those references. The first two times the court mentioned the custody case, it was referring to (1) its ability to consider custody issues in the CINA case under AS 47.10.113 and (2) the fact that it could not facilitate a settlement conference between the parties because of its history with them. Neither example reflects an intent to use the custody file to determine whether Zoltan was a child in need of aid.

The court then referenced the custody case while making oral probable cause findings; the court made clear that it was taking judicial notice of and using the file-in conjunction with the allegations in the petition-to find that Zoltan was a child in need of aid. But taking judicial notice of the existence of ten years of custody disputes is different than taking judicial notice of specific facts, pleadings, and testimony from the custody case; the latter action is what Amy challenges. Because the court's oral probable cause finding did not discuss the underlying facts of which notice was being taken, Amy had no adequate opportunity to object.

OCS also asserts that the court "made clear that [it] relied on the custody file" when making its oral adjudication findings. But the oral adjudication findings did not refer to specific facts from the custody case or indicate that the court was incorporating its probable cause findings at the adjudication hearing. And the court's later "summary of factual findings" reveals that it relied not only on the custody case file but also on domestic violence proceedings over which it did not preside and which had never been referenced at the hearing.

This case is analogous to Vent because, like that case's applicant for post-conviction relief, Amy did not discover the evidence the superior court relied on until it issued written findings. Because Amy could not have raised her due process claim before the superior court, we hold that she preserved it for appellate review and we will consider it de novo.

B. Alaska Statute 47.10.113 Does Not Require The Superior Court In A CINA Case To Take Judicial Notice Of Matters From Previous Custody-Related Proceedings.

The superior court appears to have taken judicial notice of the custody case information included in its summary of factual findings because AS 47.10.113"required" it to consider that information when making its CINA findings. A statute requiring a court to consider particular evidence without first providing the parties notice and giving them an opportunity to respond to the evidence would raise constitutional due process concerns. We thus examine the statute's text to determine whether the court's interpretation is correct.

Alaska Statute 47.10.113(a) provides that "a court shall hear a request to make, modify, or vacate an order for the custody of or visitation with a minor child in state custody under this chapter as part of the [CINA] proceedings relating to the child." The statute's imperative command is that a superior court must consider custody-related motions in a CINA proceeding, not that it has to take into account matters from past custody proceedings. The statute leaves unaltered CINA Rule 9(a), which provides that the Evidence Rules apply to adjudication hearings.

Legislative history suggests that the statute was intended as a procedural change to eliminate the requirement of bringing a separate action to determine child custody. There is no indication that the legislature intended to reduce or change applicable burdens of proof in a CINA case or to change the types of evidence that courts must consider. OCS's director testified that the law was intended "to streamline a number of different legal decisions that could impact a child in the state child welfare system." Before the law was passed, "adoption, guardianship, and civil custody matters all happened in different courts, often with different judges and at different times, which often created redundancies and delays for the involved parties in the quest for permanency for the child." The new law allowed "all the hearings [to] be conjoined under a CINA hearing" so that the judge hearing the case would "be [the] most informed and best equipped to provide a good judicial determination." An assistant attorney general in the Department of Law's child protection section clarified that the statute would not create new types of proceedings, but rather it would expand "the types of orders that the [CINA] judge would be able to issue." The ICWA coordinator for Aleutian Pribilof Islands Association testified that the law would "eliminate complicated procedural barriers in the adoption process for children in custody so that Alaska Native families can be considered for adoption through the [CINA] proceedings instead of through an entirely different and convoluted proceeding held in Probate Court." The chief operating officer of Cook Inlet Tribal Council expressed a similar sentiment.

We note that although courts are not required to consider matters from past custody-related proceedings in a CINA case, they may do so if the information is offered in compliance with applicable evidence rules. For example, under Alaska Evidence Rule 201(b), a court may take judicial notice of facts "not subject to reasonable dispute" that are "(1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Court records, like the custody proceeding records in this case, may be judicially noticed to show "that a prior suit was filed, who the parties were, and so forth." But contested factual findings contained in court records may be in dispute and generally are not the proper subjects of judicial notice.

Even if information from a custody-related proceeding is not the proper subject of judicial notice, it still may be admitted into evidence in a CINA proceeding. For example, a parent's prior statements in a custody-related proceeding potentially could be used to impeach the parent's testimony in the CINA case. A statement included in a parent's custody-related pleading or affidavit might be admissible as a party admission. Or if a parent were "unavailable" within the meaning of Rule 804(a), prior testimony from a custody-related proceeding could be admitted if it met the requirements of Rule 804(b)(1).

C. Even Assuming Amy's Procedural Due Process Rights Were Violated, She Has Shown No Prejudice.

The right to procedural due process includes the right to "a reasonable opportunity to know the claims of the opposing party and to meet them." Amy argues that the superior court denied her that right when it failed to give her notice of, and an opportunity to respond to, custody case facts the court relied on in adjudicating Zoltan as a child in need of aid. We assume, without deciding, that Amy is correct.

But even if there were a due process violation in this case, we are not persuaded that Amy was harmed by it. Amy fails to make a plausible claim of prejudice. She cites, but does not apply, the relevant due process test. And after a careful reading of Amy's brief, we find only two statements conceivably relating to whether she was prejudiced by her inability to contest the custody case evidence. She claims that the superior court "discounted the testimony of Amy's expert witness based on information outside the record" and that the court "drew inferences against Amy based on ... un-noticed facts."

Neither claim is sufficient to raise a "plausible" claim of prejudice. The superior court discounted Amy's therapist's testimony for several reasons having nothing to do with evidence outside the record. The court noted that the therapist had failed to conduct "standard" psychometric testing, had an inherent conflict of interest based on her relationship with Amy, and gave equivocal answers when asked about Amy's ability to safely parent Zoltan. Even if the court had not discounted the therapist's testimony, it is unclear that the testimony actually was helpful to Amy's case. The therapist initially seemed to imply that Amy could only safely parent Zoltan "[w]ith a little more parenting information and classes and practice." And Amy has not explained what "inferences" the court allegedly drew against her or how those inferences affected the court's adjudication or removal decision.

Amy also does not explain what information in the superior court's summary of findings led the court to discount her expert's testimony or make any alleged inferences against her. This is important because Amy has not brought general claims of judicial bias or violating relevant evidentiary rules. She alleges that her due process rights were violated because of her lack of notice of and inability to respond to specific pieces of evidence on which the superior court relied. It follows that she must explain how having notice of and an opportunity to respond to that evidence might have changed the outcome in her case. She has failed to do so. Amy instead appears to allege that the court's references to its ten-year history with the parents were improper, without explaining how those references impacted the court's decision. Because the court's general comments do not implicate Amy's rights to notice and an opportunity to respond to specific evidence, we do not consider them relevant in the context of this appeal.

Amy has not challenged the superior court's underlying factual findings or identified any finding she believes tainted by considering evidence outside the record. She ignores that the court referenced only specific evidence from the adjudication proceeding when making its oral findings-namely, the expert's report, the therapist's reference to Amy's "porous boundaries," and the incident the mental health clinician recounted when Amy told Zoltan that if he wanted to, she would let him live with Jack. Because Amy has raised only "a theoretical possibility of prejudice," we hold that any due process violation in this case was harmless error.

V. CONCLUSION

The superior court's adjudication order is AFFIRMED.

      We use pseudonyms to protect the parties' privacy.

      See 25 U.S.C. § 1903(4) (2012) (defining "Indian child").

      AS 47.10.011(4) provides that a "court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child ... is in need of treatment for mental injury and the child's parent ... has knowingly failed to provide the treatment."

      See AS 47.10.142(e) ("When the temporary custody hearing is held, the court shall determine whether probable cause exists for believing the child to be a child in need of aid....").

      This appears to reference AS 47.10.113, which became effective in January 2017. See Enrolled House Bill (H.B.) 200, 29th Leg., 2d Sess. (2016) §§ 7, 22. Alaska Statute 47.10.113 provides that, "[e]xcept as provided in AS 25.24.150(a), a court shall hear a request to make, modify, or vacate an order for the custody of or visitation with a minor child in state custody under this chapter as part of the [CINA] proceedings relating to the child."

      Alaska Statute 47.10.011(8) allows the court to find a child to be a child in need of aid if it finds, by a preponderance of the evidence, that "conduct by or conditions created by the parent ... have ... resulted in mental injury to the child ... or placed the child at substantial risk of mental injury as a result of [specific types of parental behavior]."

      Rule 52(a) provides: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon."

      Philip J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 264 P.3d 842, 846 (Alaska 2011) (quoting Jeff A.C., Jr. v. State , 117 P.3d 697, 702 (Alaska 2005) ).

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

      Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 351 (Alaska 2001).

      State, Dep't of Health &Soc. Servs., Office of Children's Servs. v. Michelle P. , 411 P.3d 576, 586 (Alaska 2018) (alteration in original) (quoting Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 309 P.3d 1262, 1267 (Alaska 2013) ).

      Vent v. State , 288 P.3d 752, 755 (Alaska App. 2012).

      See id. at 756.

      Id. at 755.

      See id.

      See Sarah A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 427 P.3d 771, 778 (Alaska 2018) ("The crux of due process is [having the] opportunity to be heard and the right to adequately represent one's interests." (quoting Dennis O. v. Stephanie O. , 393 P.3d 401, 406 (Alaska 2017) (alteration in original))).

      Minutes, House Health & Soc. Servs. Comm. Hearing on H.B. 200, 29th Leg., 1st Sess. 3:06-3:14 (Mar. 29, 2016) (testimony of Christy Lawton, Director of OCS), http://www.legis.state.ak.us/PDF/29/M/HHSS2016-03-291503.PDF.

      Id.

      Id.

      Minutes, Sen. Jud. Comm. Hearing on H.B. 200, 29th Leg., 2d Sess. 4:134:17 (May 25, 2016) (testimony of Carla Erickson, Assistant Att'y Gen.), http://www.legis.state.ak.us/PDF/29/M/SJUD2016-05-251541.PDF.

      Minutes, House Health & Soc. Servs. Comm. Hearing on H.B. 200, 29th Leg., 1st Sess. 6:27-6:31 (Mar. 29, 2016) (testimony of Amanda McAdoo, ICWA Coordinator, Aleutian Pribilof Islands Ass'n., Inc.), http://www.legis.state.ak.us/PDF/29/M/HHSS2016-03-291806.PDF.

      Minutes, House Jud. Comm. Hearing on H.B. 200, 29th Leg., 1st Sess. 1:42-1:45 (Apr. 12, 2016) (testimony of Cristy Willer, COO of Cook Inlet Tribal Council), http://www.legis.state.ak.us/PDF/29/M/HJUD2016-04-121307.PDF (stating that the law "removes barriers for Alaska Native families who want to adopt ... children who are connected to them by family or tribal membership").

      F.T. v. State , 862 P.2d 857, 864 (Alaska 1993).

      See id. ; accord Lee v. City of Los Angeles , 250 F.3d 668, 689-90 (9th Cir. 2001) (holding it was error to take judicial notice of contested facts in public court records); 21B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 5106.4 (2d ed. 1987) (stating most courts have held it improper under Federal Rules of Evidence to take judicial notice of factual findings from previous cases).

      See Alaska R. Evid. 613(a) ("Prior statements of a witness inconsistent with the testimony of the witness at a trial, hearing or deposition[ ] ... are admissible for the purpose of impeaching the credibility of a witness.").

      See Alaska R. Evid. 801(d)(2)(A) ("A statement is not hearsay if ... [t]he statement is offered against a party and is ... the party's own statement....").

      Gonzales v. United States , 348 U.S. 407, 414 n.5, 75 S.Ct. 409, 99 L.Ed. 467 (1955) (quoting Morgan v. United States , 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ).

      See Sarah A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 427 P.3d 771, 780 (Alaska 2018) ("We have denied due process claims where a parent failed to identify any 'plausible' basis for finding prejudice or did not theorize about how the requested procedural safeguard might 'potentially alter[ ] the findings about ... parental conduct.' " (quoting D.M. v. State, Div. of Family &Youth Servs. , 995 P.2d 205, 210-11, 213 (Alaska 2000) )).

      This court considers the factors set out by the United States Supreme Court in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine what process is due:
      First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and, the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
      Sarah A. , 427 P.3d at 778 (quoting D.M. , 995 P.2d at 212 ).

      See id. at 780 (quoting D.M. , 995 P.2d at 210 ).

      We note that it is acceptable for a judge to have an opinion of a party as a result of something learned in an earlier proceeding, provided that the judge still can act as an impartial arbiter. See Liteky v. United States , 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."); Hanson v. Hanson , 36 P.3d 1181, 1184 (Alaska 2001) (noting judicial opinion formed during previous proceedings will not ordinarily support bias challenge unless opinion "is so extreme as to display clear inability to render fair judgment" (quoting Liteky , 510 U.S. at 551, 114 S.Ct. 1147 )).

      See Sarah A. , 427 P.3d at 779 (quoting D.M. , 995 P.2d at 212 ).

      We reject Amy's contention that we should apply harmless error tests adopted by courts in cases involving judicial bias. Amy has not asserted in this appeal that there was judicial bias or that the trial judge should have recused.