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Jena H. v. State5/4/2005
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
No. 1211
I. INTRODUCTION
This appeal involves the termination of the parental rights on behalf of two half-brothers, Nick H. and Sean H. Nick's father, Darrell H., and the mother of both children, Jena H., appeal. Darrell contends that he was denied due process and that various statutory criteria for terminating his rights were not satisfied. Jena disputes Nick's placement decision and contends that the Division of Family & Youth Services (DFYS) had a duty to reunify the children with her extended family. Lastly, Sean's father does not appeal but nevertheless argues that the superior court should have considered less drastic alternatives to termination. We affirm for the reasons explained below.
II. STANDARD OF REVIEW
We review factual findings in a termination proceeding under the clearly erroneous standard, which requires for reversal a "definite and firm conviction that a mistake has been made." We "ordinarily will not overturn the trial court's finding based on conflicting evidence," nor will we "reweigh the evidence when the record provides clear support for the trial court's ruling."
We review de novo whether the findings are consistent with the child-in-need-of-aid statutes and adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." We also apply our independent judgment when deciding due process claims.
Lastly, we review placement decisions under the abuse of discretion standard, unless AS 47.14.100(e)(1) applies. Alaska Statute 47.14.100(e)(1) requires de novo review of DFYS's decisions not to place a child with a relative because of clear and convincing evidence that such a placement would result in physical or mental injury.
III. DISCUSSION
Below, we provide a summary of each of the parents' contentions together with our decision concerning it.
A. The Reopened Hearing Cured Any Violation of Darrell's Due Process Rights
Darrell argues that his exclusion from a supplemental hearing violated due process. Darrell was incarcerated and could not be reached by phone during the hearing due to phone problems at the jail, but his attorney was present and cross-examined the state's witnesses. We required that the hearing be reopened "so that [Darrell] will be given an opportunity to testify." Darrell now contends that the reopened hearing did not cure the due process violation because he was unable to confront the witnesses against him and assist his attorney with cross-examination.
Darrell had a due process right to be present at the supplemental hearing. We have held that "absent compelling circumstances to the contrary, a party to a proceeding . . . has the right to be present, regardless of whether he is in a position to affect the outcome of the proceeding." Furthermore, a party's exclusion from a hearing that they have a right to attend is not cured by the fact that their attorney was present.
We required the superior court to reopen the hearing so that Darrell could participate. During the reopened hearing, the court permitted Darrell to testify and to call the mother, Jena, as a witness over her attorney's objections. Moreover, the court asked Darrell, "Is there anything else [Darrell] needs to do to catch up with the hearing we had before?" It seems the court was open to considering recalling the state
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