Clementine F. v. State, Dept. of Health & Social Services, Office of Children's Services , 375 P.3d 39 ( 2016 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
CLEMENTINE F. )
) Supreme Court No. S-15948
Appellant, )
) Superior Court No. 3CO-15-00001 CN
v. )
) OPINION
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 7109 – June 17, 2016
SOCIAL SERVICES, OFFICE OF )
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Cordova, Daniel Schally, Judge pro tem.
Appearances: Brian D. Camozzi, Law Office of Gregory S.
Parvin, Anchorage, for Appellant. Jonathan A. Woodman,
Senior Assistant Attorney General, Anchorage, and Craig W.
Richards, Attorney General, Juneau, for Appellee. Marika R.
Athens, Assistant Public Advocate, and Richard K. Allen,
Public Advocate, Anchorage, Guardian Ad Litem.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
BOLGER, Justice.
STOWERS, Chief Justice, with whom MAASSEN, Justice, joins,
dissenting.
I. INTRODUCTION
The Office of Children’s Services (OCS) took emergency custody of a child
after receiving reports that her mother’s conduct had placed her at risk of harm. OCS
then investigated the child’s father, who lived out of state, and determined that the child
would be safe in his care. At the temporary custody hearing, the superior court granted
the father’s motion to dismiss the case and ordered the child released from OCS custody.
The mother appeals, arguing that the court should have granted her request for a
continuance and held an evidentiary hearing on the father’s conduct and that the court
erred by dismissing the petition without first making findings on the allegations it
contained. We conclude that the mother had no right to an evidentiary hearing on the
father’s conduct and that the superior court did not err by dismissing the petition when
OCS declined to pursue it.
II. FACTS AND PROCEEDINGS
A. Facts
Jasmine was born in February 2009 to Clementine and Jermaine.1 Both
parents have equal legal rights to Jasmine, and there is no custody order in place. When
this case began, Clementine resided in Cordova with Jasmine, and Jermaine resided in
Minnesota.
In July 2014 OCS began receiving protective service reports that raised
concerns about Jasmine’s safety in Clementine’s care. Reports filed in July, September,
and October 2014 alleged that Clementine was using heroin and methamphetamine, that
Clementine was spending nights with Jasmine at the homes of drug dealers, and that
Jasmine had been sexually abused by her babysitter. In January 2015 OCS received a
protective service report alleging that Clementine left Cordova and did not take Jasmine
1
We use pseudonyms throughout to protect the privacy of the parties.
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with her. In February Clementine’s friend Jewel reported that Clementine dropped
Jasmine off with Jewel and did not return for several weeks. Jewel told OCS that this
conduct was part of a pattern for Clementine, who frequently left Jasmine with Jewel for
weeks at a time despite plans to return within a few days.
OCS also received a report alleging that on March 4, Clementine and
Jasmine had moved into a trailer with an individual known to be using and possibly
dealing drugs. OCS met with Clementine shortly after it received this report. During the
meeting Clementine stated that she intended to move to Soldotna because she had
nowhere to live in Cordova; she denied using drugs or alcohol but refused to perform a
field sobriety test or submit to urinalysis. Jasmine told OCS and the police that loud
noises at night had prevented her from sleeping since she and Clementine had moved
into the trailer and that she no longer attended school.
B. Proceedings
OCS took Jasmine into emergency custody on March 6 and placed her in
a foster home. On March 9 OCS filed an emergency petition for adjudication of Jasmine
as a child in need of aid (CINA). Magistrate Judge Kay Adams held an initial hearing
that same day, made a preliminary finding of probable cause to believe that Jasmine was
a child in need of aid, and found that it was not in Jasmine’s best interests to allow her
to remain with Clementine. At the hearing the court appointed Assistant Public Defender
Michael Horowitz as counsel for Clementine and also appointed a guardian ad litem for
Jasmine. Jermaine attended the hearing telephonically, but he did not request the
appointment of counsel at that hearing. Magistrate Judge Adams continued the
temporary custody hearing until March 24.
Superior Court Judge pro tem Daniel Schally presided over the March 24
hearing. Clementine did not appear at this hearing, and Horowitz reported that he had
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been unable to contact Clementine prior to the hearing and had not yet spoken with her.
The court appointed counsel for Jermaine at the hearing at his request.
OCS reported at the hearing that Jasmine was currently living with Jewel
and that it was investigating whether there were any safety concerns with releasing
Jasmine to Jermaine’s custody. The court kept Magistrate Judge Adams’s preliminary
findings in place but continued the temporary custody hearing until April 2 so that
Jermaine could “speak with a lawyer and go over some things with them so [he’s] able
to move forward intelligently” and so that Horowitz could contact Clementine.
On March 27 Clementine filed a motion objecting to placement of Jasmine
with Jermaine. Clementine stated that she was opposed to Jermaine taking Jasmine back
to Minnesota; she would prefer that Jasmine continue to live with Jewel. Clementine’s
objection noted that OCS told Jewel that OCS “intend[ed] to give placement of [Jasmine]
to . . . [Jermaine], on Wednesday[,] April 1, 2015, the day before the continued probable
cause hearing on April 2, 2015.” Clementine specifically objected to “the timing of the
proposed change” in placement and argued that “[n]either OCS nor any other
representative of the State ha[d] notified [her counsel] of the proposed change.”
Clementine based her objection on her allegations that Jermaine had previously had very
limited contact with Jasmine and had not strongly bonded with the child, while Jasmine
had a strong bond with Jewel.
On April 1 the State filed a response to Clementine’s objection. The State
argued that “[a]ll the parties . . . were on notice that custody would likely be released
once OCS verified that [Jermaine] had no Minnesota [Child Protection Services] history.
The information . . . was expressly provided so that everybody was on notice that the
State anticipated [Jasmine] being released to [her] father.”
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Jermaine also filed a motion on April 1 requesting that the court release
custody of Jasmine to him and dismiss the case. He asserted that OCS had reviewed his
criminal and Child Protection Services records in Minnesota and Alaska and concluded
that it had no safety concerns with releasing Jasmine to his custody. Jermaine requested
expedited consideration of his motion because he was scheduled to fly out of Alaska on
April 2.
In the meantime the Public Defender Agency identified a conflict of interest
that prevented Horowitz from continuing to represent Clementine. On March 31
attorney Brian Camozzi filed a superseding entry of appearance on Clementine’s behalf.
But, according to Clementine, “correspondence between the parties . . . was directed
to . . . Horowitz rather than [Camozzi] until 2:52 PM on April 1.”
Upon receipt of his first email regarding Clementine’s case, Camozzi
immediately prepared and filed a response opposing Jermaine’s motion to release
custody. In this opposition, Clementine argued that the court should order OCS to retain
custody of Jasmine so that Clementine could conduct discovery and determine whether
Jermaine posed a risk to Jasmine’s safety. In particular, she raised concerns that
Jermaine had abandoned Jasmine under AS 47.10.013 because he had not paid child
support in the last three years. Clementine also argued that releasing Jasmine to
Jermaine would not be in Jasmine’s best interests. She asked the court to deny
Jermaine’s motion to release custody and to conduct an evidentiary hearing regarding
Jasmine’s release, noting that since Camozzi had just joined the case, he would need
more time to prepare for that hearing.
At the April 2 temporary custody hearing, OCS and the guardian ad litem
both supported Jermaine’s motion. Clementine repeated her request that the court keep
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Jasmine in foster care until the court could hold an evidentiary hearing on Jermaine’s
history with child support obligations and whether his lack of contact might amount to
abandonment of Jasmine.
At the end of the hearing the superior court concluded that there was not
“sufficient information . . . to make any kind of finding that release to [Jermaine] is not
appropriate.” The court explained that Clementine could not directly bring child in need
of aid allegations against Jermaine because “it’s the State[’s] . . . decision whether or not
to move forward with such allegations, and the State . . . is not doing so in this case, has
not done so, and has pretty clearly stated that they have no intention of doing so.” But
the court reasoned that “to the extent that [Clementine was] making a request under
[CINA Rule 6] . . . to grant emergency custody to [OCS],” such a request would fail
because her petition was not “supported by a statement of fact sufficient to show that
[Jasmine] is in need of aid and is in a condition which requires the immediate assumption
of custody [by OCS].”2 Accordingly, the court released Jasmine from OCS custody and
dismissed the case.
Clementine then filed a motion asking the court to reconsider its decision,
arguing (1) that the court erred in applying CINA Rule 6(b) to her opposition and that
the court should instead have applied CINA Rule 19.1(b)3 or (d),4 which she argued
2
See CINA Rule 6(b).
3
CINA Rule 19.1(b) provides that “[a]t any time in a proceeding, a party
who is opposed to [OCS] transferring a child from one placement to another may move
the court for a review hearing at which the requesting party must prove by clear and
convincing evidence that the transfer would be contrary to the best interests of the child.”
4
CINA Rule 19.1(d) provides that “[a]t any time in a proceeding, the court
may review matters not otherwise covered by [the CINA] rules upon motion of a party
or on its own motion.”
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provides for a review hearing to be held at a party’s request, and (2) that the court
violated Clementine’s due process rights.
The superior court denied Clementine’s motion for reconsideration.
Clementine appeals.
III. STANDARD OF REVIEW
“We review a denial of a motion to continue for ‘abuse of discretion,
determining whether a party has been deprived of a substantial right or seriously
prejudiced by the [superior] court’s ruling.’ ”5 We “consider ‘the particular facts and
circumstances of each individual case to determine whether the denial was so
unreasonable or so prejudicial as to amount to an abuse of discretion.’ ”6
“Whether the trial court’s factual findings satisfy the CINA statutes is a
question of law.”7 “We exercise our independent judgment when interpreting Alaska’s
procedural rules, including the CINA rules.”8
5
Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 289 P.3d 924, 930 (Alaska 2012) (quoting Ben M. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 204 P.3d 1013, 1018 (Alaska 2009)).
6
Rowan B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 361 P.3d 910, 912-13 (Alaska 2015) (quoting A.A. v. State, Dep’t of Family &
Youth Servs., 982 P.2d 256, 259 (Alaska 1999)).
7
Id. (citing Casey K. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 311 P.3d 637, 643 (Alaska 2013)).
8
Alyssa B. v. State, Dep’t of Health &Soc. Servs., 123 P.3d 646, 648 (Alaska
2005) (footnote omitted) (citing Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996)).
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Whether Clementine’s due process rights were violated is also a question
of law.9 Questions of law are reviewed de novo, and we will adopt “the rule of law that
is most persuasive in light of precedent, reason and policy.”10
IV. DISCUSSION
A. The Superior Court Did Not Err By Releasing Jasmine From OCS
Custody And Dismissing The Case.
We first determine whether the superior court erred in releasing Jasmine
from OCS custody and dismissing the case under the applicable CINA rules and statutes.
Clementine takes issue with the fact that the superior court dismissed the case before any
further proceedings could occur with regards to the petition. She argues that once OCS
filed the petition, CINA Rule 10 required the court to make findings on whether probable
cause existed to believe that Jasmine was a child in need of aid. Clementine further
asserts that if there was no probable cause, OCS was required to return Jasmine to
Clementine and not to another parent.
Under AS 47.10.142(d), “[a]t the first [temporary custody] hearing . . . ,
regardless of whether a continuance is granted, the court shall make a preliminary
determination of whether continued placement in the home of the child’s parent . . .
would be contrary to the welfare of the child.” Magistrate Judge Adams’s findings on
March 9 fit squarely within this definition of preliminary findings, as they were made
within a few hours of OCS taking emergency custody of Jasmine. And Judge Schally
left these preliminary findings in place on March 24 to give Jermaine time to speak with
counsel and to give Horowitz time to contact Clementine.
9
See Philip J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 264 P.3d 842, 846 (Alaska 2011) (citing Jeff A.C., Jr. v. State, 117 P.3d 697, 702
(Alaska 2005)).
10
Id. (quoting Jeff A.C., Jr., 117 P.3d at 702 (citations omitted)).
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Although Clementine is correct that Magistrate Judge Adams and Judge
Schally made only preliminary probable cause findings, she incorrectly concludes that
the court is required to keep Jasmine in OCS custody until it makes a specific
determination on the bases for removal listed in the emergency petition. On the contrary,
“[t]he [superior] court may dismiss a [CINA] petition at any time based on a finding of
good cause consistent with the welfare of the child and the family.”11 In this case, the
good cause requirement was satisfied by the agreement of OCS, the guardian ad litem,
and the assistant attorney general in charge of the State’s case.
As a general rule, the attorney general “possesses the . . . power to make
any disposition of the [S]tate’s litigation which he [or she] thinks best . . . includ[ing] the
initiation, prosecution and disposition of cases.”12 And “[w]hen an agency functions to
protect the public in general . . . , the agency normally exercises its discretion in deciding
whether formal proceedings should be commenced.”13 In this case, OCS and the
Department of Law declined to pursue the emergency petition after they determined that
Jasmine would be safe in Jermaine’s care.14 In such a situation, the superior court does
11
CINA Rule 7(g).
12
Pub. Def. Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947,
950 (Alaska 1975) (first citing State v. Finch, 280 P. 910 (Kan. 1929); then citing United
States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888); Fed. Trade Comm’n v. Claire
Furnace Co., 274 U.S. 160 (1927); Smith v. United States, 375 F.2d 243, 246-47 (5th
Cir. 1967); United States v. Cox, 342 F.2d 167 (5th Cir. 1965); Boyne v. Ryan, 34 P. 707
(Cal. 1893); Ames v. Attorney Gen., 124 N.E.2d 511 (Mass. 1955)) .
13
Vick v. Bd. of Elec. Exam’rs, 626 P.2d 90, 93 (Alaska 1981); see also In re
E.H., 742 S.E.2d 844, 852-53 (N.C. App. 2013) (holding that the state may voluntarily
dismiss a juvenile petition, analogous to Alaska’s petition for adjudication of a child in
need of aid, without the consent of the guardian ad litem or the parents).
14
The superior court also considered Clementine’s allegations against
(continued...)
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not abuse its discretion by dismissing the CINA case. And because the court may
dismiss the petition “at any time,” it was not required to make probable cause findings
before doing so here.
Because the superior court dismissed the case, it made no final probable
cause findings. CINA Rule 10(c)(1) states that if the court does not find probable cause,
it “shall order the child returned to the home and dismiss the petition,” and a related
requirement in AS 47.10.142(e) states that in the absence of a probable cause finding,
the court must “order the child returned to the custody of the child’s parents or
guardian.” CINA Rule 10 does not define the word “home,” and we read CINA Rule 10
in conjunction with AS 47.10.142(e) so that CINA Rule 10(c)(1), consistent with the
statute, requires the court to “order the child returned to the custody of the child’s parents
or guardian.” That is precisely what the superior court did in this case. It found good
cause to dismiss the petition, made no probable cause finding as a result, and ordered that
Jasmine be released from OCS custody. We conclude that the superior court did not err
when it dismissed the petition and ordered Jasmine’s release from OCS custody.15
B. The Superior Court Was Not Required To Grant Any Relief Under
CINA Rule 19.
Clementine filed an opposition to Jermaine’s motion to release custody of
Jasmine to him and to dismiss the case against Clementine, arguing that Jasmine should
remain in OCS custody because there was a potential that Jasmine might be a child in
need of aid based on Jermaine’s conduct. In particular, Clementine alleged that Jermaine
14
(...continued)
Jermaine and reasonably found no support for “any kind of finding that release to
[Jermaine] is inappropriate.”
15
The final order stated that “it is hereby ordered that [Jasmine] is released
from OCS custody and this case be dismissed.” The order did not specify that Jasmine
was to remain in Jermaine’s custody following this dismissal.
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abandoned Jasmine under AS 47.10.013, but she stated that she needed time for
additional discovery to substantiate her allegations. The superior court treated her
opposition as a “petition . . . for an order granting emergency custody of the child to
[OCS]” made under CINA Rule 6(b), and denied the request.
Clementine first argues that the superior court should instead have treated
her opposition to Jermaine’s motion as a petition for review under CINA Rule 19.1(d).
She notes that CINA Rule 6(b) governs the commencement of a CINA proceeding and,
in this case, the proceeding had already commenced when OCS filed its emergency
petition on March 9. CINA Rule 19.1(d), on the other hand, provides that a “court may
review matters not otherwise covered by [the CINA] rules upon motion of a party.”
We assume that Clementine is correct when she argues that CINA Rule 6(b)
does not apply to this situation. However, while CINA Rule 19.1(d) provides for review
of anomalous situations, it does not confer any substantive rights.16 Clementine does not
point to any authority under which the State may retain custody of a child if a court has
not found probable cause to believe the child is in need of aid, and the CINA rules do not
grant Clementine the right to compel OCS to continue to prosecute the case against her
by bringing allegations against the other parent. The superior court granted Clementine
all the relief to which she is entitled by dismissing the allegations against her and
ordering Jasmine’s release from OCS custody. CINA Rule 19.1(d) does not entitle her
to further review of a matter already settled in her favor.
16
Compare CINA Rule 19.1(d) (“[T]he court may review matters not
otherwise covered by these rules upon motion of a party or on its own motion.”), with
CINA Rule 19.1(b) (specifically providing for “a review hearing at which the requesting
party must prove by clear and convincing evidence that [a] transfer [of placement] would
be contrary to the best interests of the child”).
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Clementine also argues that CINA Rule 19.1(b) should apply to her
opposition. CINA Rule 19.1(b) states that “[a]t any time in a proceeding, a party who
is opposed to [OCS] transferring a child from one placement to another may move the
court for a review hearing at which the requesting party must prove by clear and
convincing evidence that the transfer would be contrary to the best interests of the child.”
But OCS did not “transfer[] [Jasmine] from one placement to another”; the
court released Jasmine from custody when it dismissed the case. In the CINA rules,
relevant statutes, and OCS regulations, “placing” a child is distinguished from releasing
a child from OCS custody. For example, CINA Rule 10(c) requires the court to “order
the child placed in the temporary custody of [OCS] . . . if the court finds probable cause
to believe that the child is a child in need of aid,” but if no probable cause is found, the
court is directed to “order the child returned to the home.”17 Interpreting CINA
Rule 19.1(b) in the manner urged by Clementine would permit parents to shoehorn
matters into a CINA proceeding that are more properly addressed in the context of a
private custody dispute. We conclude that CINA Rule 19.1(b) does not grant the parents
a right to a custody hearing when the child is released from OCS custody.
C. The Issue Of Clementine’s Request For A Continuance Is Moot.
Clementine argues that the superior court abused its discretion by refusing
to continue the April 2 proceedings. She argues that although CINA Rule 10(a)(1)
17
CINA Rule 10(c)(1) & (2) (emphases added); see also AS 47.14.100(a)
(“[OCS] shall arrange for the care of every child committed to its custody by placing the
child in a foster home or in the care of an agency or institution . . . .”); 7 Alaska
Administrative Code (AAC) 56.990(5) (2015) ( “ ‘[A]rranges or arranging for
placement’ means planning for a child’s care and treatment, selection of a particular
foster care, residential care, guardianship, or adoption setting for a child . . . and
supervision of a child’s care.”); id. (36) (“ ‘[P]lacement setting’ includes a foster home
and a residential child care facility licensed under 7 AAC 50 and a home providing
guardianship or adoption for a child.”).
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requires the court to schedule a temporary custody hearing within 48 hours of OCS
taking emergency custody of a child, CINA Rule 10(a)(2) permits a court to continue
the temporary custody hearing when a parent is not prepared to respond to an emergency
petition.18 Clementine points out that Camozzi had been assigned to her case less than
two days before the April 2 hearing, and that we have stated that “[i]t is imperative that
counsel be afforded adequate time in which to prepare his [or her] defense, especially
when serious charges . . . must be squarely met.”19
“[W]e will refrain from deciding questions where events have rendered the
legal issue moot.”20 CINA Rule 10(a)(2) permits the court to grant a continuance if a
parent “is not prepared to respond to the petition.” But here, the petition has been
dismissed; there are no longer any charges to be met. By dismissing the petition, the
court granted all of the relief that it could grant to Clementine with respect to that
petition, and there is no longer any live controversy as to whether Clementine engaged
in the alleged conduct or whether that conduct caused Jasmine to be a child in need of
aid.21 Accordingly, Clementine was not entitled to any additional time to respond to
18
CINA Rule 10(a)(2) states that “[t]he court may continue a temporary
custody hearing at the request of a parent . . . upon a showing of good cause for why the
parent . . . is not prepared to respond to the petition. A continuance must be requested
before or at the outset of the hearing.”
19
Klockenbrink v. State, 472 P.2d 958, 965 (Alaska 1970).
20
Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d
1165, 1167 (Alaska 2002) (quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)).
21
See id. (“A claim is moot if it is no longer a present, live controversy, and
the party bringing the action would not be entitled to relief, even if it prevails.” (citing
Gerstein, 960 P.2d at 601)).
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those allegations. And to the extent that Clementine was requesting a continuance to
substantiate her allegations against Jermaine, the court properly denied her request;
CINA Rule 10(a)(2) does not grant her a right to a continuance on those grounds.
D. The Superior Court Did Not Violate Clementine’s Due Process Rights.
The parties agree that Clementine has a fundamental liberty interest in
parenting Jasmine. The United States Supreme Court has held that “[t]he fundamental
liberty interest of natural parents in the care, custody, and management of their child does
not evaporate simply because they . . . have lost temporary custody of their child to the
State.”22 The parties also agree that the State would violate that fundamental liberty
interest if it were to remove a child from a parent without due process. Clementine
argues that the superior court interfered with her fundamental liberty interest in parenting
Jasmine without due process by (1) failing to make probable cause findings with respect
to the State’s initial allegations against her and (2) releasing Jasmine without an
evidentiary hearing on Clementine’s allegations against Jermaine.
Clementine’s first argument apparently rests on her desire to see OCS’s
“thus-far unsupported allegations against her . . . laid to rest.” But those allegations were
laid to rest when the superior court dismissed the case. By doing so, it granted
Clementine all the relief to which she would be entitled even if it had made specific and
final findings on the allegations in the emergency petition: dismissal of the petition and
22
Santosky v. Kramer, 455 U.S. 745, 753 (1982).
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a determination that the State had no right to custody of Jasmine.23 Clementine’s request
for specific findings on the allegations made against her was therefore mooted when the
superior court dismissed the case.24
Moreover, both OCS and the superior court followed the procedures
established in the CINA rules and statutes. Under CINA Rule 6(a), OCS may take
emergency custody of a child without a court order, provided that it files, “within 24
hours after custody was assumed, a petition alleging that the child is a child in need of
aid.” OCS followed this protocol, submitting the emergency petition within 24 hours of
taking custody of Jasmine.
Next, under AS 47.10.142(d), “[a]t the first [temporary custody]
hearing . . . , regardless of whether a continuance is granted, the court shall make a
preliminary determination of whether continued placement in the home of the child’s
parent . . . would be contrary to the welfare of the child.” Accordingly, Magistrate Judge
Adams made a preliminary determination that there was probable cause to believe that
Jasmine was a child in need of aid and that it was not in Jasmine’s best interests to allow
her to remain with Clementine. Judge Schally left these preliminary findings in place on
March 24 to give Jermaine time to speak with his counsel and to give Clementine’s
attorney time to contact her. Magistrate Judge Adams’s and Judge Schally’s preliminary
findings demonstrate that, contrary to Clementine’s assertions, the court did make
probable cause findings regarding whether Jasmine was a child in need of aid. Although
23
See CINA Rule 10(c)(1) (if the court does not find probable cause, it “shall
order the child returned to the home and dismiss the petition”).
24
See Mullins v. Local Boundary Comm’n, 226 P.3d 1012, 1017 (Alaska
2010) (“A claim is moot . . . ‘if the party bringing the action would not be entitled to any
relief even if it prevails.’ ” (quoting Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d
773, 776 (Alaska 2001))).
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the superior court later found good cause to dismiss the case and did not make final
probable cause findings, the dismissal obviated the need for such findings.25
Clementine’s second argument — that the superior court violated her right
to due process by releasing Jasmine from OCS custody without conducting an
evidentiary hearing on her allegations against Jermaine — misapprehends the scope of
the CINA proceeding and the court’s order. Contrary to her argument, the order which
we are reviewing did not “place children with a particular parent” or “make a quick and
unreviewable custody decision.” Instead, the superior court determined that as between
the State and Jasmine’s parents, the parents were entitled to custody and the State was
not. As we reasoned above in Section B, the court was not required to hold an
evidentiary hearing on Clementine’s allegations against Jermaine before making that
decision.
We are mindful of the physical reality that before the State’s involvement,
Jasmine lived with Clementine, while after the State’s involvement, Jasmine lives with
Jermaine. But we review the superior court’s decision, not the actions of OCS or
Jermaine. The court made no determination as to which parent should have custody of
Jasmine; rather, it properly dismissed a petition that OCS had decided not to pursue, and
ordered Jasmine released from OCS custody as required by CINA Rule 10.
We therefore conclude that the superior court did not violate Clementine’s
right to due process.
V. CONCLUSION
We AFFIRM the superior court’s order releasing Jasmine from OCS’s
custody and dismissing the case.
25
See CINA Rule 7(g) (authorizing the superior court to dismiss the petition
“at any time” if it finds good cause to dismiss).
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STOWERS, Chief Justice, with whom Maassen, Justice, joins, dissenting.
I dissent from today’s opinion because I believe that the superior court
moved too quickly through these proceedings. As a result, Clementine never had the
opportunity to meaningfully contest the allegations against her, and the superior court
released Jasmine to Jermaine without fully considering allegations that he had abandoned
Jasmine. By so doing the court erroneously failed to provide Clementine a continuance,
failed to conduct a hearing, and violated Clementine’s due process rights.
I. DISCUSSION
A. The Superior Court Erred By Releasing Jasmine From OCS Custody
And Dismissing The Case.
Under the unique circumstances of this case, I would find that Clementine
was entitled to final probable cause findings regarding OCS’s allegations against her
before the superior court released custody to Jermaine and dismissed the case.
The court concludes that the superior court did not make final probable
cause findings because Magistrate Judge Adams’s and Judge Schally’s findings were
preliminary probable cause findings1 and because the superior court dismissed the case.
1
Under AS 47.10.142(d), “[a]t the first hearing under this subsection,
regardless of whether a continuance is granted, the court shall make a preliminary
determination of whether continued placement in the home of the child’s parent or
guardian would be contrary to the welfare of the child.” The court typically enters these
preliminary findings while a parent is waiting to obtain counsel or when the appointed
counsel needs further time to prepare. But Alaska Statute 47.10.142(e) describes that
“[w]hen 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.”
Alaska Statute 47.10.142(e) refers to final probable cause findings, which are different
from preliminary findings. Preliminary probable cause findings are just that —
preliminary — and permit the court to essentially continue further proceedings until the
parties are ready to participate in the temporary custody hearing where the issue of
probable cause is determined. Even then, all that is being determined is probable cause,
(continued...)
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The court then explains:
CINA Rule 10(c)(1) states that if the court does not find
probable cause, it “shall order the child returned to the home
and dismiss the petition,” and a related requirement in
AS 47.10.142(e) states that in the absence of a probable cause
finding, the court must “order the child returned to the
custody of the child’s parents.” That is precisely what the
superior court did in this case
by releasing Jasmine to Jermaine. I disagree with that conclusion. First, releasing
custody to Jermaine effectively removed Jasmine from Clementine’s care without
adequate, final probable cause findings against Clementine. Final probable cause
findings would have determined, as a threshold matter, whether Jasmine should have
been removed from Clementine’s home in the first place.
Second, even if the superior court had made final probable cause findings
supporting the dismissal of the case against Clementine, returning Jasmine to
Clementine’s home — the only home she has ever known — and “returning” her to the
home of a parent who has never acted as her caregiver are drastically different outcomes.
I do not believe that AS 47.10.142(e) and CINA Rule 10(c)(1) should be read to bring
about an outcome that “returns” Jasmine to a place she has never called home and to a
parent who has never served as her caregiver. What actually happened was that the
State — that is, both OCS and the court — effected a change in physical custody without
giving the formal custodial parent an opportunity to be fully and fairly heard. Therefore,
I would hold that Clementine was entitled to final probable cause findings regarding the
1
(...continued)
a far different (and lesser) quantum of proof than a formal adjudication that a parent’s
conduct has made her children in need of aid.
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allegations against her; if those final probable cause findings supported the dismissal of
the case against Clementine, the superior court should have ordered Jasmine returned to
Clementine’s home — the same home from which she was removed.
Alaska Statutes 47.05.060 and 47.10.086 support this interpretation. In
AS 47.05.060, the legislature states that “[t]he purpose of this [CINA] title as it relates
to children is to secure for each child the care and guidance, preferably in the child’s own
home, that will serve the moral, emotional, mental, and physical welfare of the child and
the best interests of the community.” The legislature’s preference to keep the child in
“the child’s own home” suggests that the term “home” as used in AS 47.10.142(e) and
CINA Rule 10(c)(1) is meant to refer to the child’s original living situation, rather than
a broader definition that includes an absent, previously unengaged parent. And
AS 47.10.086 requires that if a child is found to be a child in need of aid, OCS “shall
make timely, reasonable efforts to provide family support services to the child and to the
parents or guardian of the child that are designed to prevent out-of-home placement of
the child or to enable the safe return of the child to the family home.” The existence of
this provision suggests that the legislature intended CINA rules and statutes to promote,
if possible, the reinstatement of the child’s original living situation when OCS becomes
involved in a child’s custody. In other words, OCS must make reasonable efforts to
reunite the child with the original custodial parent. Here, OCS made no efforts to reunite
Jasmine with Clementine, as the superior court prematurely dismissed the case before
any further proceedings could occur with regards to the emergency petition.
For these reasons, I would hold that Clementine was entitled to final
probable cause proceedings regarding the allegations against her, and if those final
probable cause findings were to support the dismissal of the case against Clementine, the
superior court should return Jasmine to Clementine’s care. If the probable cause findings
supported removal, then OCS should have been required to proceed in the usual fashion
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to provide Clementine with a case plan and services aimed at allowing Clementine to
remedy her conduct such that she could reunify with her child.
B. Clementine Was Entitled To An Evidentiary Hearing Regarding Her
Allegations Against Jermaine.
The court concludes that even under CINA Rules 19.1(b) or (d) — the
CINA rules that Clementine wished to apply to her opposition — Clementine was not
entitled to an evidentiary hearing regarding her allegations against Jermaine. Although
I would preliminarily hold that the superior court clearly erred in finding that no
statement of facts supported Clementine’s allegations under CINA Rule 6(b)(2), I also
disagree with this court’s conclusion that CINA Rule 19.1(b) does not apply to
Clementine’s opposition.
First, under CINA Rule 6(b)(2), Clementine’s opposition “must be
supported by a statement of facts sufficient to show that the child is a child in need of aid
and is in a condition which requires the immediate assumption of custody.” Clementine
met her prima facie burden, asking for an evidentiary hearing only to further substantiate
the allegations for which she already offered proof. In her opposition to Jermaine’s
motion, Clementine argued that Jasmine was a child in need of aid as a result of
Jermaine’s abandonment, and her attorney’s affidavit confirmed that he believed this
argument had merit. While Jermaine apparently had no criminal or child protective
services history in either Minnesota or Alaska and his interactions with Jasmine were
preliminarily deemed “totally appropriate [and] caring,” there was enough evidence in
the opposition and supporting affidavit to substantiate Clementine’s assertions that
Jermaine abandoned Jasmine under AS 47.10.011(1).2 Jermaine had not paid child
2
AS 47.10.011(1) states that the court may find a child to be a child in need
of aid if “a parent or guardian has abandoned the child as described in AS 47.10.013, and
(continued...)
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support in three years, had never sought a civil custody order or other means to enforce
custody, and had extremely limited contact with Jasmine for the first six years of her life.
Based on these allegations, supported by an affidavit, Jermaine appears to have “shown
a conscious disregard of parental responsibilities toward [Jasmine] by failing to provide
reasonable support, maintain regular contact, or provide normal supervision,” “has made
only minimal efforts to support and communicate with [Jasmine],” and/or has “failed for
2
(...continued)
the other parent is absent or has committed conduct or created conditions that cause the
child to be a child in need of aid under this chapter.” The abandonment statute,
AS 47.10.013, explains that
[f]or purposes of this chapter, the court may find
abandonment of a child if a parent or guardian has shown a
conscious disregard of parental responsibilities toward the
child by failing to provide reasonable support, maintain
regular contact, or provide normal supervision, considering
the child’s age and need for care by an adult. Abandonment
of a child also includes instances when the parent or
guardian, without justifiable cause, (1) left the child with
another person without provision for the child’s support and
without meaningful communication with the child for a
period of three months; (2) has made only minimal efforts to
support and communicate with the child; (3) failed for a
period of at least six months to maintain regular visitation
with the child; (4) failed to participate in a suitable plan or
program designed to reunite the parent or guardian with the
child; (5) left the child without affording means of identifying
the child and the child’s parent or guardian; (6) was absent
from the home for a period of time that created a substantial
risk of serious harm to a child left in the home; (7) failed to
respond to notice of child protective proceedings; or (8) was
unwilling to provide care, support, or supervision for the
child.
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a period of at least six months to maintain regular visitation with [Jasmine].”3 Therefore,
because Clementine had asserted plausible prima facie allegations supported by an
affidavit that Jermaine had abandoned Jasmine, the superior court clearly erred in finding
that there was no evidence showing that Jermaine’s conduct caused Jasmine to be a child
in need of aid. The superior court — analyzing Clementine’s opposition under
CINA Rule 6(b) — should instead have found that Clementine sufficiently substantiated
her allegations of abandonment and, at the very least, should have permitted further
discovery and an evidentiary hearing on that issue.
Second, as this court notes, Clementine argues that the superior court
should have treated her opposition to Jermaine’s motion as a petition for a review
hearing under CINA Rule 19.1(b) or (d) rather than CINA Rule 6(b). CINA
Rule 19.1(b) states that
[a]t any time in a proceeding, a party who is opposed to
[OCS] transferring a child from one placement to another
may move the court for a review hearing at which the
requesting party must prove by clear and convincing
evidence that the transfer would be contrary to the best
interests of the child.
I believe that CINA Rule 19.1(b) applies to Clementine’s opposition and would entitle
her to a hearing regarding her argument against transferring placement of Jasmine from
Clementine to Jermaine.
This court dismisses Clementine’s argument that Rule 19.1(b) applies
because “OCS did not transfer Jasmine from one placement to another; OCS released
Jasmine from custody when the court dismissed the case” and because the term
“ ‘placement’ is used to refer to the home of a child who remains in OCS custody.” The
court therefore concludes that CINA Rule 19.1(b) did not apply to Clementine’s
3
AS 47.10.013(a).
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opposition and that Clementine was not entitled to a hearing on her allegations against
Jermaine.
But I do not find the court’s support for these arguments convincing. The
court’s argument that OCS did not transfer Jasmine from one placement to another
because OCS released Jasmine from custody and dismissed the case is contrary to any
reasonable common sense understanding of what actually happened and raises form over
substance. OCS cooperated with Jermaine to effectuate a change in Jasmine’s living
situation, moving her from Clementine’s care and physical custody to Jermaine’s
physical custody. Therefore, OCS in effect transferred Jasmine from one custodial
placement with Clementine to another with Jermaine, and the superior court should
therefore have analyzed Clementine’s opposition under CINA Rule 19.1(b).
With regard to the term “placement,” and contrary to this court’s
explanation, the phrase is not always “used to refer to the home of a child who remains
in OCS custody.” For instance, other CINA rules refer to adoptive or other permanent
living arrangements as “placements,” and, in these instances, a child does not remain in
OCS custody after such placements.4 In A.B. v. State, Department of Health & Social
Services, we noted that AS 47.10.088(a) “provides that a court may terminate parental
rights ‘for the purposes of freeing a child for adoption or other permanent placement,’ ”
and we remanded the case for the superior court to explain whether termination of the
mother’s rights was appropriate given the State’s efforts to unite the child with her
4
See, e.g., CINA Rule 17.2(e) (requiring courts to make written findings
after a permanency hearing on “whether the child should be placed for adoption or legal
guardianship” or “whether there is compelling reason that the most appropriate
placement for the child is in another planned, permanent living arrangement” (emphasis
added)).
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biological father.5 In so doing we noted that “[p]lacement with a non-terminated parent
could be an ‘other permanent placement’ under AS 47.10.088(a), and, under
AS 47.10.088(h), terminating the non-custodial parent’s rights would not affect the rights
of the custodial parent. But the termination must be made ‘for purposes of freeing’ a
child for such permanent placement.”6 We reiterated this point in a later unpublished
memorandum opinion.7 In other cases we have used “placement” to refer to returning
the child to a biological parent.8 There is no compelling reason to support the court’s
favored reading of the term “placement”; to conclude that OCS did not effect a change
in placement of the child ignores any common sense understanding of the term. Again,
I would construe the rule to permit Clementine to have a hearing at which she might
discover or adduce further evidence that Jasmine’s physical placement with Jermaine is
contrary to Jasmine’s best interests.
5
7 P.3d 946, 954-55 (Alaska 2000).
6
Id. at 954 n.24.
7
Victor B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 2011 WL 6004329, at *7 (Alaska 2011) (“We have stated that ‘[p]lacement with
a non-terminated parent could be an “other permanent placement” under
AS 47.10.088(a).’ ” (alteration in original) (quoting A.B., 7 P.3d at 954 n.24)).
8
See J.S. v. State, 50 P.3d 388, 395 (Alaska 2002) (“The superior court’s
finding beyond a reasonable doubt that placement with [the father] would result in
serious emotional damage to the boys was therefore not clearly erroneous.”); Denise L.
v. State, Dep’t of Health &Social Servs., Office of Children’s Servs., 2014 WL 1168868,
at *2, *4 (Alaska 2014) (explaining that “[i]n April 2013, at the request of OCS, the trial
court released Isis from OCS custody and placed her with her father” and that “[t]he trial
court found that continued placement in [the mother’s] home would be contrary to the
welfare of the children ‘based on the history of [the] whole case’ ” (first and third
alterations in original)).
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C. The Superior Court Violated Clementine’s Due Process Rights.
I would also hold that the superior court violated Clementine’s fundamental
liberty interest in parenting Jasmine without due process by dismissing the proceedings
against Clementine without allowing her to meaningfully address OCS’s emergency
petition and by releasing Jasmine to Jermaine without allowing Clementine to participate
in an evidentiary hearing to determine whether Jasmine is a child in need of aid with
respect to both her conduct and Jermaine’s conduct. Clementine had a reasonable
expectation that she would be able to address OCS’s concerns about her conduct and to
present evidence to the court regarding Jermaine’s conduct. Instead, the superior court
never completed OCS’s proceedings against her, and it ignored her plausible prima facie
allegations, supported by Camozzi’s affidavit, that Jermaine abandoned Jasmine.
OCS’s decision to dismiss the case affected Clementine’s rights to raise
Jasmine free from state interference and to meaningfully be heard regarding both OCS’s
allegations against her and her allegations against Jermaine. Contrary to this court’s
conclusion, the superior court’s premature dismissal of the case did not “grant[]
Clementine all the relief to which she would be entitled even if [the superior court] had
made specific and final findings on the allegations in the emergency petition.” The
superior court’s dismissal and release of custody to Jermaine radically altered the status
quo by changing the family’s physical custody arrangements; Jasmine was sent to live
with Jermaine in Minnesota rather than continuing to live with Clementine in Alaska.
II. CONCLUSION
For the reasons detailed above, I dissent from this court’s affirmance of the
dismissal of the CINA case.
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