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In the Matter of J.A. (8/7/98), 962 P 2d 173

     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, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

In the Matter of:             )
                              )    Supreme Court No. S-8454
J.A.,                         )
                              )    Superior Court No.
A Minor Under the Age of      )    3AN-97-508 CP
Eighteen (18) Years.          )
                              )    O P I N I O N
DOB: 02-26-88                 )
                              )    [No. 5019 - August 7, 1998]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                         Sen Tan, Judge.

          Appearances: Jo-Ann M. Chung, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for State of Alaska.  Margi A. Mock, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Mother.  Thom F. Janidlo, Law Office of Thom F. Janidlo,
Anchorage, for Father.  Barbara L. Malchik, Deputy Public Advocate,
Marshall Currey Cook, Assistant Public Advocate, and Brant G.
McGee, Public Advocate, Anchorage, Guardian Ad Litem.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          FABE, Justice.
          COMPTON, Justice, with whom MATTHEWS, Chief
Justice, joins, dissenting.
          MATTHEWS, Chief Justice, with whom COMPTON,
Justice, joins, dissenting.


I.   INTRODUCTION
          In this case, we must decide whether the State presented
enough evidence to establish probable cause that J.A., a nine-year-
old passenger in a drunk driving accident, was in imminent and
substantial risk of physical harm.  This was not an isolated
instance of drunk driving for J.A.'s father, the driver of the car;
he has a history of four prior reckless and drunk driving
convictions, including two since 1992.  Moreover, J.A.'s parents
have longstanding substance abuse problems, and their pattern of
domestic violence had driven the mother from the home on the day of
the accident.  Because a probable cause determination must be made
in light of the totality of the circumstances, we conclude that the
trial judge erred in failing to find probable cause that J.A. was
in need of aid. 
II.  FACTS AND PROCEEDINGS
          Joseph and Eliza A. have three children.  J.A., the
youngest, is nine years old and an Indian child within the meaning
of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. sec. 1901
et
seq.  On October 18, 1997, Joseph backed his car into a neighbor's
vehicle while attempting to leave the parking lot of his housing
complex.  J.A. was a passenger in the car.  After failing a field
sobriety test, Joseph was arrested for Driving While Intoxicated
(DWI) and taken into custody.  J.A. was taken into emergency
custody because there was no adult available to care for him. 
          On the following day, the Department of Health and Social
Services filed a Child in Need of Aid (CINA) petition for temporary
custody and adjudication.  The petition was later amended to
include allegations of a family history of domestic violence and
substance abuse.  A superior court master held a preliminary
hearing.  Based upon Joseph's and Eliza's stipulations, the master
found probable cause to believe that J.A. was a child in need of
aid and placed him in temporary state custody.
          A second hearing was held before the superior court in
December 1997.  Attorneys for Joseph, Eliza, and the State were
present, as were the guardian ad litem and a representative from
the Native Village of Tununak.  Joseph and Eliza sought to withdraw
their stipulations as to probable cause.  The superior court
allowed the withdrawal and placed the burden of establishing
probable cause on the State.  After hearing testimony, Superior
Court Judge Sen Tan ruled that although probable cause existed at
the time of the accident, "it did not continue once [the father]
was released and [the parents] were ready to assume custody of
[J.A.]."  The superior court then dismissed the petition and
ordered J.A. returned to the custody of his parents.  The State
appeals.
III. STANDARD OF REVIEW
          Whether probable cause exists is a mixed question of law
and fact.  See Saucier v. State, 869 P.2d 483, 484 (Alaska App.
1994).  Absent clear error, this court will accept the factual
findings of the lower court.  See id.  "Whether probable cause
arises from those facts, however, is a purely legal question"that
this court reviews de novo.  Id.; accord Chandler v. State, 830
P.2d 789, 792 (Alaska App. 1992); State v. Grier, 791 P.2d 627, 631
(Alaska App. 1990).
          Although the dissenting justices urge us to review the
superior court's probable cause decision under the deferential
"clearly erroneous"standard, we are persuaded that de novo review
is the proper standard to be applied to a probable cause
determination in a CINA case, just as it is in a case involving
criminal law.
          The question of what standard of review should be applied
to probable cause determinations in cases involving warrantless
searches was examined in depth by the United States Supreme Court
in Ornelas v. United States, 517 U.S. 690 (1996).  There, Chief
Justice Rehnquist, writing for the eight-member majority, concluded
that once the historical facts are established, "the rule of law is
undisputed"and the issue becomes whether those facts satisfy the
applicable statutory or constitutional standard.  Id. at 696
(quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). 
The Court reasoned that to allow a policy of deferential review
would permit different judges to draw different conclusions as to
whether the facts are sufficient to constitute probable cause. 
"This, if a matter-of-course, would be unacceptable."  Id. at 697. 
The Court further observed that because the legal rules for
probable cause acquire meaning only through their application to
the specific facts of a given case, "[i]ndependent review is
therefore necessary if appellate courts are to maintain control of,
and to clarify the legal principles."  Id. (citation omitted). [Fn.
1] These policy reasons for requiring de novo review of a probable
cause determination in a criminal case are also applicable to the
CINA context. 
          Furthermore, giving deference to the trial court's
factual findings but reviewing its legal determination of probable
cause under a de novo standard is consistent with our approach in
recent CINA decisions.  For example, in R.J.M. v. State, 946 P.2d
855, 861 (Alaska 1997), we stated that we would apply the clearly
erroneous standard to the trial court's factual findings, but "in
determining whether the trial court's findings comport with the
requirements of the CINA statutes and rules, we deal with questions
of law, and so apply the de novo standard of review."  See also
R.R. v. State, 919 P.2d 754, 755 n.1 (1996).  We therefore apply
the de novo standard of review to Judge Tan's probable cause
decision and exercise our independent judgment.
IV.  DISCUSSION
     A.   Definition of Probable Cause in a CINA Case
          Within forty-eight hours after the State has filed a
petition alleging that a child is in need of aid, the superior
court must conduct a temporary custody hearing.  See
AS 47.10.142(d); CINA Rule 10(a)(1).  The court is charged with
determining whether, at the time of the hearing, probable cause
exists to believe that the child is a child in need of aid as
defined in the statute.  See AS 47.10.142(d). [Fn. 2]  The trial
court must make its probable cause findings in light of the
totality of the circumstances.  See, e.g., Van Sandt v. Brown, 944
P.2d 449, 452 (Alaska 1997) (citing Illinois v. Gates, 462 U.S.
213, 231-32 (1983)); Lord v. Wilcox, 813 P.2d 656, 659 (Alaska
1991).
          In CINA proceedings, probable cause is established where
reasonably trustworthy information would justify a prudent person's
belief that the child is in need of aid.  Cf.  Lord, 813 P.2d at
658 (defining probable cause to arrest); State, Dep't of Fish &
Game v. Meyer, 906 P.2d 1365, 1376-77 (Alaska 1995) (defining
probable cause necessary to trigger a hearing under anti-
discrimination statute); Matanuska Elec. Ass'n v. Weissler, 723
P.2d 600, 608 (Alaska 1986) (defining probable cause in context of
tree trespass statute).  Probable cause requires only "a fair
probability or substantial chance"that the child is in need of
aid.  Van Sandt, 944 P.2d at 452 (citations and quotation omitted).
[Fn. 3]  This standard is distinguishable from the test to be
applied at a CINA adjudication trial; there, the State has the
burden of proving by a preponderance of the evidence that a child
is in need of aid.  See CINA Rule 15(c). [Fn. 4]
          Although the dissenting justices argue that we should
define probable cause in a CINA case as "more likely than not,"a
probable cause standard that rises to the preponderance of the
evidence test is not necessary to protect against unwarranted
interference with parental custody.  The existence of probable
cause at the temporary custody hearing does not itself justify the
child's removal from the home; it merely allows the petition to
proceed toward adjudication and gives the court authority to
consider the issue of placement.  Before placing (or allowing
continued placement of) any child in state custody, a judge who
finds probable cause of CINA status must expressly find that
placement in the home would be contrary to the child's welfare and
that the State has made reasonable efforts to prevent removal.  See
CINA Rule 10(c)(3)(A) & (4)(A).  In the case of an Indian child,
the standards for removal are even more stringent.  See CINA Rule
10(c)(3)(B) & (4)(B).  Thus, the pre-adjudication placement
requirements guard against unwarranted interference with parental
custody.
          With the probable cause determination decoupled from the
issue of pre-adjudication placement, the need for an early
screening function to protect parental rights must be balanced
against the very real need to protect children against parental
harm.  Forbidding state intervention without positive proof of CINA
status would certainly protect the individual rights of parents;
but at the same time it would likely discourage the State from
intervening in cases of abuse or neglect until a child actually
suffered serious injury.
          Such a rigid standard seems overprotective of parental
rights.  Indeed, the dissent's proposed interpretation of the
probable cause requirement would provide greater protection for
parents of CINA children than defendants facing criminal charges
are afforded.  When the State prosecutes a misdemeanor charge
without seeking an arrest warrant or pretrial detention, it is free
to proceed to trial with no preliminary showing of probable cause
at all.  And even for the most serious felonies, the State need
only present its evidence to the grand jury, which applies a
standard of review no more stringent than the probable cause
standard proposed by the dissenting justices for CINA cases, but
does so in an ex parte setting that is far more forgiving than the
adversary probable cause hearing required under the CINA rules. 
The dissent's reading of the probable cause requirement would thus
make it more difficult for the State to prosecute to adjudication
a CINA petition involving a child who remains in parental custody
pending adjudication than to prosecute to conviction a serious
felony charge involving a defendant who remains incarcerated prior
to trial.
     B.   Evidence Supporting a Finding of Probable Cause
          While the drunk driving accident that precipitated the
State's involvement in this case was a major focus of the temporary
custody hearing, the State also presented evidence of Joseph's and
Eliza's histories of substance abuse, domestic violence, and DWI
convictions.  This evidence was integral to an evaluation of
whether probable cause existed to believe that J.A. faced an
imminent risk of substantial physical harm.  As we recognized in In
re D.D.S., 869 P.2d 160, 163 (Alaska 1994), the State has a "strong
interest in protecting and preserving the well-being of the
children of this state,"and the "trial court should have access to
all pertinent evidence relating to . . . abuse or neglect in
determining the best interests of the child."
          A social worker, Aneida Alexander, testified that the
Department already had two open reports of harm regarding the A.
family when the DWI accident occurred; two other reports had been
substantiated when the family lived in Bethel.  The most recent
report of harm arose from a September 1997 domestic violence
assault.  Alexander informed the judge that Joseph had been
convicted of assaulting Eliza on August 29, 1997, and the police
testified that they had responded to at least six domestic
disturbance calls at the A. home, most of which involved alcohol.
Eliza was convicted in July 1997 for violating a domestic violence
order and again in October 1997 for disconnecting the telephone to
prevent Joseph from calling the police for assistance during
another domestic dispute.  During the weekend of the drunk driving
accident, Eliza left the home, apparently due to domestic violence. 
          The trial court also learned from Alexander that both
Joseph and Eliza had alcohol problems.  Although Eliza had
completed in-patient treatment, she was drinking on the day before
the accident.  Another social worker, Gary Ward, believed that
Eliza was intoxicated in the daytime when he tried to interview
her.  Joseph admitted to drinking vodka and orange juice before
being arrested for DWI.  Joseph also admitted that he had been
convicted of DWI on three prior occasions; another DWI charge was
reduced to Reckless Driving.
          Both the guardian ad litem and the ICWA representative
from the Native Village of Tununak took the position that J.A. was
a child in need of aid and that the parents should be required to
participate in a treatment plan.  After hearing this evidence, the
superior court recognized that there were problems with substance
abuse, domestic violence, and repeated drunk driving in the A.
family.  It concluded, however, that "those problems"did not
provide "the necessary nexus"to demonstrate that J.A. was at
imminent and substantial risk of physical harm under
AS 47.10.010(c)(3).  We disagree.
          The record establishes probable cause to believe that
Joseph placed J.A. at direct risk of harm.  Joseph was arrested for
DWI as a result of the accident on October 18, 1997, and it is
undisputed that J.A. was a passenger in the car at the time. 
Although, as the dissent observes, Joseph had not been convicted of
the DWI charge at the time of the temporary custody hearing, there
was certainly probable cause to believe that he drove while
intoxicated.
          We have previously discussed the profound danger that can
arise when an individual operates a motor vehicle under the
influence of an intoxicant.  See State, Dep't of Pub. Safety v.
Conley, 754 P.2d 232, 233-36 (Alaska 1988); State v. Dunlop, 721
P.2d 604, 610 (Alaska 1986).  A car that is out of control "even on
a relatively deserted street, poses a significant threat to
property or individuals in proximity to the vehicle."   Ebona v.
State, 577 P.2d 698, 701 (Alaska 1978).
          While an isolated instance of DWI may not, in itself,
constitute probable cause that a child passenger is in need of aid,
the October 18, 1997 drunk driving accident was not an isolated
incident in Joseph's driving career.  The trial court had before it
a driving record establishing Joseph's substantial history of DWI
and reckless driving offenses.  The October 18, 1997 incident was
his fifth offense and his third since 1992.
          The record also reveals that both parents had enduring
substance abuse problems as well as a history of domestic violence
that had resulted in police intervention, the entry of a
restraining order, and criminal charges.  While the dissent argues
that there is no evidence that J.A.'s parents have ever "placed
their children in physical danger,"the violence that has
transpired between Joseph and Eliza signifies an independent and
significant risk of physical harm to J.A.
          In Borchgrevink v. Borchgrevink, 941 P.2d 132, 140
(Alaska 1997), we recognized the devastating impact that witnessing
domestic violence can have on children.  The violent behavior of
Joseph and Eliza need not have been directed at J.A. to place him
in physical danger.  As another court has acknowledged, "[m]any
violent acts could be committed in the child's presence, but not
directed toward the child, in such a manner as to actually endanger
the child's physical well-being."  Lane v. Jefferson County Child
Welfare Unit, 564 S.W.2d 130, 132 (Tex. App. 1978).
          Accordingly, the narrow risk that Joseph might once again
drink and drive with J.A. in his car is not a realistic measure of
J.A.'s exposure to continuing physical danger.  Rather, the
totality of the State's evidence tended to show that J.A., only
nine years old, lived in a chaotic home where everyday life was
dominated by his parents' longstanding alcohol abuse and domestic
violence.  As a result, J.A. stood in constant jeopardy of physical
harm, either from his parents' actions or from their failure to
provide adequate supervision.  See AS 47.10.010(a)(3).
          At the temporary custody hearing, the trial court's task
was not to determine whether the State had proved its case by a
preponderance of the evidence.  Nor could its finding of probable
cause resolve the separate question of whether J.A. should be
returned to his home with supervision by the Department.  See CINA
Rule 10(c)(3)(B).  The court was required only to decide whether,
in light of all of the circumstances, there was a "fair probability
or substantial chance"that J.A. was a child in need of aid.  We
conclude that under the facts of this case, a sufficient nexus
existed between the parents' conduct and the potential risk to
J.A.'s continued physical well-being.  Based on the totality of the
circumstances, we conclude that at the time of the hearing,
probable cause existed that J.A. was a child in need of aid.
V.   CONCLUSION
          The superior court's dismissal of the petition is
REVERSED and this matter is REMANDED for further proceedings 
pursuant to CINA Rule 10(c)(2)-(4), to determine whether to place
J.A. in temporary custody of the Department or to allow him to
remain in his home with supervision by the Department.

COMPTON, Justice, with whom MATTHEWS, Chief Justice, joins,
dissenting.
          Today's opinion takes an unprecedented leap forward in
permitting the State to unreasonably interfere in the lives of its
citizens.  The court holds for the first time that, as a matter of
law, when parents have a prior record of irresponsible conduct not
involving their children, an isolated incident in which they place
their child in danger satisfies the probable cause standard
necessary for the State to petition for temporary custody of the
child under our Child in Need of Aid statute.  Since I cannot agree
with this approach, I dissent.
     The Standard
          To find J.A. to be a Child in Need of Aid the State was
required to show that there was probable cause to believe that, at
the time of the hearing, J.A. was at an "imminent and substantial
risk [of physical harm] as a result of the actions done by or
conditions created by [J.A.'s] parent."  AS 47.10.010(a)(3).  No
other grounds were alleged to support a finding that J.A. was a
Child in Need of Aid.  Webster's New World Dictionary defines
"imminent"as "likely to happen without delay; impending." 
Webster's New World Dictionary, 702 (second college edition, 1979).
     The Court's Findings
          The court bases its conclusion that there was, as a
matter of law, [Fn. 1] probable cause to believe J.A. to be in
imminent and substantial risk of physical harm as a result of his
parents' actions on the following findings:
          (1)  "Joseph placed J.A. at direct risk of harm.  Joseph
was arrested for DWI as a result of the accident on October 18,
1997, and it is undisputed that J.A. was a passenger in the car at
the time."  Slip. Op. at 11.
          It has yet to be shown that Joseph was, in fact, DWI on
the date in question.  Let us assume, however, that there was
probable cause to so believe.  J.A. was not, in fact, harmed. 
Absent harm to J.A., the State's burden was to show probable cause
to believe that J.A. faced an imminent, substantial risk of harm if
returned to his parents' custody.  See AS 47.10.010(a)(3). 
Probable cause to believe that Joseph was intoxicated while driving
with J.A. in the car, negligent though such an act may have been,
does not amount to probable cause to believe that Joseph would
again immediately place his son in substantial physical danger.
          (2)  "[T]he . . . drunk driving accident was not an
isolated incident."  Slip Op. at 12.
          The court refers to Joseph's three DWI convictions and
one reckless driving conviction spaced over a period of twenty
years, two of which occurred long before J.A. was born.  There is
no indication that Joseph had a child present with him in the
vehicle on any of these occasions.  Joseph's past offenses do not
establish probable cause to believe that he would immediately place
J.A. in substantial physical danger. 
          (3)  "The record also reveals that both parents had
enduring substance abuse problems as well as a history of domestic
violence."  Slip Op. at 12.
          Those portions of the record referred to by the court
reveal that the parents had difficulty in controlling their teenage
daughter; that the parents consumed alcohol which has, on occasion,
resulted in disturbances; and that there had been previous problems
with domestic violence involving the parents.  Notably lacking is
any evidence that the parents have previously physically abused
their children or placed their children in physical danger.  The
court also can point to no evidence in the record supporting its
assertion that "J.A. stood in constant jeopardy of physical harm
. . . from his parents' . . . failure to provide adequate
supervision."  Slip Op. at 13.  The court's conclusion, that as a
matter of law there is probable cause to believe that J.A. is in
imminent, substantial danger of physical harm if returned to the
custody of his parents, is utterly baseless.
          The court provides two citations in an attempt to justify
its conclusion that domestic violence, not involving the children,
requires, as a matter of law, a finding of probable cause to
believe that J.A. was in imminent, substantial danger of
substantial physical harm.  But neither of these cases, on closer
inspection, stands for this proposition.
          The court states "[i]n Borchgrevink v. Borchgrevink, 941
P.2d 132, 140 (Alaska 1997), we recognized the devastating impact
that witnessing domestic violence can have on children."  Slip Op.
at 12.  This is accurate, but a non-sequitur.  Witnessing domestic
violence may, indeed, have a devastating emotional and
psychological impact on children, but this does not meet the
requirements of the instant case -- that J.A. be at an imminent,
substantial risk of physical harm.
          The court quotes, out of context, Lane v. Jefferson
County Child Welfare Unit, 564 S.W.2d 130, 132 (Tex. App. 1978) for
the proposition that "'[m]any violent acts could be committed in
the child's presence, but not directed toward the child, in such a
manner as to actually endanger the child's physical well-being.'"
Slip Op. at 12.  It is true that on facts such as those in Lane one
might conclude that acts of domestic violence, not directed at the
child, endanger the child's physical well-being:  The husband in
Lane beat and raped his pregnant wife; almost hit his child in the

process of tearing apart the mother's place; and threw bricks or
rocks through the windows of the mother's home, shattering glass in
all directions, when the husband knew that the child was present in
the home.  Each of these actions clearly endangered the physical
safety of the child at issue in Lane.  Apart from the isolated
possible DWI which precipitated the instant case, there is no
evidence that Joseph's actions have even indirectly endangered the
physical safety of J.A. in a like manner.
          While the record reveals that the parents have led
troubled lives, it does not require, as a matter of law, a finding
that there was probable cause to believe that J.A. faced an
imminent, substantial risk of physical harm if he was returned to
his parents' custody.  
     Conclusion
          I conclude that the trial court was well within its
discretion to find a lack of probable cause to believe that J.A.
would face an imminent, substantial risk of physical harm if
returned to the custody of his parents.  The court may view J.A.'s
world as an unpleasant one, but unpleasantness alone cannot justify
taking a child from his parents.

MATTHEWS, Chief Justice, with whom COMPTON, Justice, joins
dissenting.
Introduction
          On Saturday evening, October 18, 1997, Joseph's nine-
year-old son, J.A., asked Joseph to drive him to a convenience
store for a snack.  Joseph had been drinking, but he agreed.  As
Joseph backed out of his parking space he struck a parked car. 
Joseph was arrested for DWI.  Since no one else was at home, J.A.
was taken into state custody.  Although Joseph was released on his
own recognizance an hour after he was arrested, the State kept J.A.
in foster care for seven weeks.  On December 11, 1997, Superior
Court Judge Tan ordered J.A. released to his parents.  This order
was not consented to by the State, which never receded from its
position that J.A. was "at imminent risk of substantial harm if
returned to the home now."
          Does the October 18 incident justify the State's attempt
to take J.A. from the family home?  As today's opinion correctly
points out, more is involved than simply an isolated probable DWI. 
Joseph has had five such offenses -- including that of October 18
-- spread over a twenty-six-year period.  Further, there have been
instances of domestic violence between Joseph and his wife Eliza,
J.A.'s mother.  Moreover, Eliza also has a drinking problem.  These
are the facts favoring the State.  On the other hand, the evidence
indicates that Joseph retired from military service with the rank
of major, that he has been employed by the same employer for the
past twenty-six years, and that he and Eliza have been married for
twenty-five years.  It appears to be undisputed that J.A. is a good
student with a regular school attendance record.  There is no
indication that he has ever been inappropriately disciplined.  Nor
is there evidence that he has ever been harmed by action or
inaction of either parent.  Finally, there is no evidence, except
for the evening of October 18, that Joseph has ever driven while
intoxicated with J.A. in the car.
          On this record, Judge Tan concluded that probable cause
did not exist to believe that J.A. was at imminent risk of
substantial physical harm as of the December hearing.  And on this
record the court concludes de novo that Judge Tan erred and that
probable cause exists to believe that J.A. is at imminent risk of
substantial physical harm. 
          I agree with Justice Compton's strong dissent.  I write
separately because I think that the court has made two errors of
law which go a long way toward explaining our different
conclusions.  
          The legal errors of which I speak are:
          First, the court has construed the probable cause
standard of AS 47.10.142(d) to mean minimally that there is a
"substantial chance"that J.A. is a child in need of aid.  In my
view, probable cause under this section requires a conclusion which
is more likely true than not true based on the quantum of
information available.  
          Second, the court treats probable cause as a legal
determination which is reviewed without deference to the
determination of the trial judge, rather than as a question of the
application of a legal standard to a particular set of facts which
is reviewed deferentially and cannot be reversed unless found to be
clearly erroneous.  
          I turn to a fuller explanation of these points.  
Probable Cause
          In civil law when we speak of probability we mean "more
likely than not."  See Kenneth S. Broun et al., McCormick on
Evidence sec. 339, at 437-41 (John William Strong ed., 4th ed.
1992). 
Thus I would have thought that probable cause as used in AS
47.10.142(d) is equivalent to the customary civil preponderance-of-
the-evidence standard, which requires the trier of fact to find
that something is more likely than not true.  See Alaska Pattern
Jury Instruction sec. 2.22 (defining preponderance of the
evidence). 
But drawing on criminal search and seizure law under the Fourth
Amendment to the United States Constitution, today's opinion says
that probable cause only requires "a substantial chance"that
something is true.  Slip. Op. at 7.  The "substantial chance"
standard is inherently vague and may be quite a bit lower than the
"more likely than not"standard.  For example, if the holder of a
lottery ticket were told that he had a ten-percent chance of
winning, that would be both exciting news and a substantial chance. 
But it would not be probable that the holder would win.
          I have no quarrel with the view that probable cause is
established where reasonably trustworthy information is brought
forth which would justify a prudent person's belief that a child is
in need of aid.  See Slip. Op. at 6.  Such a standard is consistent
with what I regard as the plain language of probable cause.  To say
something is probable simply means that it more likely than not
will occur.  It seems clear that a prudent person would not choose
to believe a proposition unless information shows that it is
probably true, or more likely than not true.  By contrast, the
"substantial chance"standard may indicate a likelihood far lower
than more likely than not.  This formulation, in my view, is in
practical usage indistinguishable from reasonable suspicion and, as
such, is wholly insufficient to justify placing a child in the
custody of the state. [Fn. 1]  This is true even where the order
specifies that the child shall be returned to the home under state
supervision.
          "Probable cause"in criminal law with respect to
decisions made by the police to search or seize, and with respect
to decisions made by a magistrate to issue a warrant, may in
limited circumstances mean something less than "more likely than
not."  We recognized this possibility in McGee v. State:
          It has been said that in a search and seizure
context probable cause does not mean "more likely than not"or "by
a preponderance of the evidence,"rather, the words connote
something more akin to "reasonable cause."

               . . . .

               . . .  Where there is probable cause that
a crime has been committed and also probable cause that a
particular person committed it, we think a lesser degree of
probability will suffice to justify temporary seizure of a weapon
to determine if it was involved in the crime.

614 P.2d 800, 806 (Alaska 1980) (citations omitted).
          Professor LaFave, the leading commentator in this area of
law, states that it is still an open question as to whether the
Supreme Court of the United States will permit the probable cause
standard to fall below a more probable than not test.  See Wayne R.
LaFave, Search and Seizure sec. 3.2(e), at 60-63 (3d ed. 1996). 
Nonetheless, Professor LaFave suggests that there are some
circumstances in which searches or seizures should be upheld as
satisfying probable cause even though they do not meet a more
probable than not test.  See id. at 65-82. [Fn. 2]
          I disagree that the criminal law analogies relied on by
the court, relating to the protections afforded defendants facing
criminal charges, are apt or accurate.  Slip Op. at 8-9.  A
preliminary showing of probable cause is not required for a
misdemeanor charge without an arrest warrant or pretrial detention
because there has been no seizure of the person.  Such a seizure
only takes place after conviction, thus after the defendant's guilt
has been proven beyond a reasonable doubt.  Similarly, the standard
for a grand jury indictment is whether the evidence, "if
unexplained or uncontradicted, would warrant a conviction of the
defendant."  Alaska R. Crim. P. 6(q).  Since a conviction is not
warranted unless proved beyond a reasonable doubt, the grand jury
and reviewing courts must ask whether the evidence presented, if
uncontradicted, would justify conviction under the reasonable doubt
standard.  This standard is much more demanding than mere probable
cause. 
          The court points out that a grand jury hearing is held in
an ex parte setting and is therefore more forgiving than a
preliminary CINA hearing.  Slip. Op. at 8-9.  But a hearing on
temporary placement under AS 47.10.142(d) is severely
circumscribed.  The hearing must take place within forty-eight
hours after the court is notified that a minor has been taken into
custody.  See CINA Rule 10(a)(1).  At this point, the parents will
not ordinarily be prepared to present their case.  The CINA rules
anticipate this by providing that the court must advise the parents
of their rights and responsibilities at the beginning of the
hearing, including the right to counsel.  See CINA Rule 10(a)(1),
(2).  Further, CINA Rule 10(a)(4) permits the court to consider
hearsay evidence.  If the grand jury analogy were applied to the
preliminary CINA hearing, I suggest that we would ask whether the
facts presented, including hearsay evidence, would suffice, if
uncontradicted or unexplained, to warrant a finding that the child
is a child in need of aid. [Fn. 3]  As such a finding must be made
by a preponderance of the evidence, this would meet the plain
meaning of probable cause. 
          I suggest, however, that it is not to the criminal law
that we should look for analogies as to the standard of proof
required under section .142(d).  More to the point are civil
authorities discussing the standard of proof which is required
before constitutionally protected rights can be interfered with.  
          For example, to obtain a prejudgment attachment or
prejudgment seizure of personal property the plaintiff must
"establish by a preponderance of the evidence the probable validity
of the plaintiff's claim for relief in the action and the absence
of any reasonable probability that a successful defense can be
asserted by the defendant."  Alaska R. Civ. P. 89(d); see also
Alaska R. Civ. P. 88(d).  Thus, a plaintiff seeking to seize the
property of another before a final determination must show that he
probably will win.  Due process compels this result.  See Etheredge
v. Bradley, 502 P.2d 146, 151 (Alaska 1972) ("[D]ue process
requires some form of notice and hearing to establish the probable
validity of the plaintiff's underlying claim before the defendant
can be temporarily deprived of a property interest that 'cannot be
characterized as de minimus.'") (quoting Fuertes v. Shevin, 407
U.S. 67, 90 n.21 (1972) and Sniadach v. Family Fin. Corp., 395 U.S.
337, 342 (1969) (Harlan, J., concurring)).  Cf. Care & Protection
of Robert, 556 N.E.2d 993, 1001 n.7 (Mass. 1990) (observing that
the preponderance standard required for review of emergency removal
of child is "analogous to the hearing accorded a request for a
preliminary injunction"in which the "task for the motion judge is
to balance the risk of irreparable harm to the plaintiff and the
defendant 'in light of [each] party's chance of success on the
merits'"because both hearings serve "essentially the same
function") (citations omitted).
          Due process also protects family integrity.  See In re
K.L.J., 813 P.2d 276, 279 (Alaska 1991) ("The right to the care,
custody, companionship, and control of one's children 'undeniably
warrants deference and, absent a powerful countervailing interest,
protection.'") (quoting Lassiter v. Department of Soc. Servs., 452
U.S. 18, 27 (1981)); see also Smith v. Organization of Foster
Families for Equal. & Reform, 431 U.S. 816, 844 (1977); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Duchesne v. Sugarman, 566 F.2d
817, 825 (2d Cir. 1977); Flores v. Flores, 598 P.2d 893, 895
(Alaska 1979).  Due process requires that a clear and convincing
evidence standard be satisfied before parental rights may be
terminated.  See Santosky v. Kramer, 455 U.S. 745, 769 (1982).  We
have held that the State may not deny a parent all visitation
rights to a child except on a showing of clear and convincing
evidence.  See D.H. v. State, 723 P.2d 1274, 1277 (Alaska 1986);
K.T.E. v. State, 689 P.2d 472, 478 (Alaska 1984).  Where parental
visitation rights are restricted but not terminated, only a
preponderance-of-the-evidence standard is required.  See In re
A.B., 791 P.2d 615, 618 n.3 (Alaska 1990).  In A.B., we cited with
approval a commentary that we summarized as follows:  "[C]lear and
convincing evidence is necessary to sustain a decision completely
ending visitation for any appreciable length of time, but [the]
preponderance of evidence standard applies when visitation is
merely restricted."  Id. (citing M. Garrison, Why Terminate
Parental Rights?, 35 Stan. L. Rev. 423, 486-87 & n.284 (1983)).  
          A temporary commitment to the Department of Health and
Social Services under AS 47.10.142 can last for a substantial
period of time before it is again subject to court review.  Under
subsection (h) court review might not take place for as long as
eighteen months after the commitment.  CINA Rule 10(d) shortens
this period to ninety days.  But this is still a long period to
deprive a parent of the parent's constitutionally recognized
custodial rights.
          The court points out that before a non-Indian child can
be removed from the home, CINA Rule 10 requires the court to find
that continued placement in the home is "contrary to the welfare of
the child."  CINA Rule 10(c)(3)(A); Slip. Op. at 8.  Assuming that
this finding must be made by a preponderance of the evidence, this
may mitigate state abuses.  However, the welfare-of-the-child
standard must be examined in light of the statutory scheme
governing these proceedings.  Prior to CINA Rule 10, AS
47.10.142(e) allowed the court to order the minor committed to the
department for temporary placement outside the home for as long as
eighteen months, upon a finding of only probable cause.  As a
matter of statutory construction, one must ask whether the
legislature intended that such a placement could occur upon a
finding that there was merely a substantial chance that the child
was a child in need of aid.   
          Further, the welfare-of-the-child standard will not, in
all cases, be an adequate substitute for a finding that the child
is probably a child in need of aid.  A pervasive problem in
children's cases is that often parent-substitutes better provide
for a child's welfare than biological parents.  The effect of the
court's opinion which waters down the probable cause standard is
that a child may now be removed when the diluted standard is met
and a better placement can be found. 
          I suggest that as a matter of statutory construction it
is incorrect to hold that our legislature contemplated that a
parent could be deprived of custodial rights for a period as long
as eighteen months on a standard of proof which is lower than more
probable than not.  After all, a full CINA determination made under
AS 47.10.080 is subject to annual review.  See AS 47.10.080(f). 
And it is established that the standard of proof required for a
full CINA hearing is the preponderance-of-the-evidence standard. 
See CINA Rule 15(c).
          Further, as a constitutional matter, I suggest that it
would be violative of due process principles to deprive a parent of
custodial rights for a period as long as ninety days, except on a
showing that the child is a child in need of aid based on a
standard of proof equivalent to the preponderance-of-the-evidence
standard.  Since a preponderance standard is required merely to
restrict the visitation rights of a parent who has already been
deprived of custody, see A.B., 791 P.2d at 618 n.3, it follows that
a standard at least as demanding is necessary to deprive a parent
of custody for an appreciable period of time.  Supportive of this
conclusion is Opinion of the Justices to the Senate, 691 N.E.2d
911, 916 (Mass. 1998), in which the Massachusetts Supreme Court
stated that "the preponderance standard was sufficient for purposes
of restricting a parent's right to custody, in part, because
'further proceedings regarding the particular situation [would] be
held'"(quoting Care & Protection of Robert, 556 N.E.2d at 999). 
See also In re Yuma County Juvenile Action Nos. J-90-283, J-90-284,
815 P.2d 424, 425-26 (Ariz. App. 1991) (holding that standard of
proof at hearing to review taking of temporary state custody is
preponderance of evidence); In re Juvenile Appeal (83-CD), 455 A.2d
1313, 1322-25 (Conn. 1983) (concluding that due process requires
state to prove by preponderance of evidence that temporary
placement should continue); Maureen S. v. Margaret S. 592 N.Y.S.2d
55, 58 (N.Y. App. Div. 1992) (noting that temporary emergency
custody to protect child from potential sexual abuse must be
supported by preponderance of evidence that child is at risk of
emotional and physical harm); Wright v. Arlington County Dep't of
Soc. Servs., 388 S.E.2d 477, 477-79 (Va. App. 1990) (concluding
that, under due process analysis, preponderance standard applies to
temporary child protection placements that may last up to sixteen
months); see also Conn. Gen. Stat. Ann. sec. 45a-607(b), (d) (West
1998) (requiring trial court to review immediate temporary custody
order using preponderance standard); Ky. Rev. Stat. Ann. sec.
620.080(b)(2) (Michie 1998) (requiring department to prove
"reasonable grounds"in support of temporary removal of child by
"preponderance of evidence"); Va. Code Ann. sec. 16.1-253(A), (F),
as
amended by 1998 Va. Acts ch. 550 (Michie 1998) (requiring
allegations of abuse or neglect at preliminary-protective-order
hearing to be proved by preponderance of evidence). 
          Moreover, I think that this conclusion applies to cases
where the state becomes temporary custodian of a child who is
permitted to remain at home.  In such cases it is the State and not
the parents who are charged with the authority and responsibility
to supervise the child and provide for his "care and treatment." 
AS 47.10.142(e).  This is not a "de minimus"interference with
constitutionally protected custodial rights.  Due process requires
that "probable validity"be demonstrated in such cases more
urgently than it does when, for example, a bank account is frozen. 
See Etheredge, 502 P.2d at 154-55.
Standard of Review
          The State has not argued in this case that a de novo
standard should be used.  Instead, it has acknowledged that the
clearly erroneous standard applies.  See Appellant's Brief, at 11,
21.  Nonetheless, today's opinion treats the question whether
probable cause exists based on the undisputed facts in this case as
a legal question which is subject to de novo review.  The opinion
relies on cases which review whether police officers making
searches or arrests had probable cause for their actions.  Slip Op.
at 3-5.  In such cases, de novo review is appropriate.  But where
a magistrate has issued a search warrant, deferential rather than
de novo review of the probable cause determination is called for. 
See State v. Jones, 706 P.2d 317, 323 (Alaska 1985) (explaining
that "a magistrate's initial determination of probable cause is
given considerable deference") (citing Johnson v. State, 617 P.2d
1117, 1122 (Alaska 1980) (noting that "the decision of the judicial
officer who has issued the warrant is to be given 'great
deference'") (citation omitted)); Lockwood v. State, 591 P.2d 969,
970-71 (Alaska 1979) (same)). [Fn. 4]  
          The court relies on Ornelas v. United States, 517 U.S.
690 (1996), which imposed a de novo standard of review for probable
cause determinations when police officers conduct warrantless
searches.  Ornelas, however, recognized that this standard diverged
from the less searching review accorded to determinations of
probable cause made by magistrates.  Id. at 698-99.  The Court said
that a two-tiered approach to the standard of review would yield an
"incentive"for police officers to conduct searches pursuant to a
warrant.  Id. at 699.  No such concerns are implicated here.  
          And, although I see no reason why the trial judge's
determination of probable cause should be treated differently from
a magistrate's determination, this is not a criminal law case.  I
suggest that we should use the same standard of review here that we
use to review the application of other legal standards to
particular facts.  Where the facts are undisputed, the application
of a legal standard to a particular set of facts presents a legal
question.  See, e.g., Foss Alaska Line, Inc. v. Northland Servs.,
Inc., 724 P.2d 523, 526 (Alaska 1986).  Nonetheless, for practical
reasons we generally treat such questions as issues for the trier
of fact.  See, e.g., Taranto v. North Slope Borough, 909 P.2d 354,
359 (Alaska 1996) (noting that, in scope-of-employment inquiry,
"even where the facts are undisputed, when 'conflicting inferences
can be drawn from undisputed facts' the question is properly left
to the jury") (citation omitted); 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure sec. 2528 (2d ed. 1995)
("Even if the facts are undisputed, the case must go to the jury if
conflicting inferences may be drawn from the evidence presented at
trial."); id. sec. 2587 (explaining that deference is owed to the
trial court even when its findings rest "on an inference drawn from
undisputed facts").
          Whether the legal standard is reasonable care; scope of
employment; or one of the elements of a child-in-need-of-aid
determination such as imminent risk of substantial harm, the
standard of review is deferential:  the trial court's determination
will not be reversed unless it is clearly erroneous.  See, e.g.,
T.B. v. State, 922 P.2d 271, 273 (Alaska 1996) ("A superior court's
finding that a child is in need of aid will be overturned if this
court is left with a definite and firm conviction that a mistake
has been made.  Factual findings supporting the superior court's
determination that a minor is a child in need of aid are reviewed
under the clearly erroneous standard.") (citations omitted); K.N.
v. State, 856 P.2d 468, 475 (Alaska 1993) ("The findings of the
superior court in CINA cases will not be overturned unless this
court, after reviewing the entire record, is left with a definite
and firm conviction that a mistake has been made.") (citation
omitted).      
          At the adjudication stage in CINA proceedings, the
question whether by a preponderance of the evidence a child is at
imminent risk of harm is reserved to the trier of fact and is not
subject to de novo review at the appellate level.   See T.B., 922
P.2d at 273; K.N., 856 P.2d at 475.  As noted, the determination as
to whether there is probable cause to believe that a minor is a
child in need of aid under AS 47.10.142(d) has the potential to
deprive a parent of custodial rights for as long as ninety days. 
Since this deprivation is different only in degree from the
deprivation a parent suffers before the next mandated hearing when
a CINA determination is made under AS 47.10.080, I can think of no
reason not to apply the same standard of review to section .142(d)
determinations.  The questions are identical from the trial court's
point of view.  In both cases, the trial court must ask whether it
is more likely than not that the child is at imminent risk.  No
reason exists for an appellate court to apply an intrusive standard
when reviewing the preliminary hearing determination, while
applying a deferential standard to the same determination made at
the final hearing.
Conclusion
          I believe that as a matter of statutory construction and
constitutional law, no standard of proof less demanding than the
more likely than not standard can be used in a CINA determination
under AS 47.10.142(d).  Further, I think that to conclude that the
standard of review of a trial court's determination under section
.142(d) is de novo rather than clearly erroneous misapplies the
more applicable criminal law analogy and ignores the most analogous
standard prevailing in civil law.
          Judge Tan's decision concludes that J.A. is not in
imminent danger of substantial physical harm.  In reviewing this
conclusion, the court should ask whether it is clearly erroneous. 
I suspect that if the majority agreed that the applicable standard
of proof were more likely than not, and the applicable standard of
review were clearly erroneous, this case would be decided
differently.




                            FOOTNOTES


Footnote 1:

     Policies of providing guidance on legal principles, unifying
precedent, and "stabiliz[ing] the law"were also persuasive to the
Supreme Court in its decision to mandate de novo review by federal
courts of state-court "in custody"determinations in federal habeas
corpus proceedings.  Thompson v. Keohane, 516 U.S. 99, 115 (1995).


Footnote 2:

     Our legislature's decision to require only a finding of
probable cause at the temporary custody hearing is consistent with
that of many jurisdictions.  See, e.g., Fla. Stat. Ann. sec.
39.402(4)(b) (West 1998); 705 Ill. Comp. Stat. 405/2-10(1)&(2)
(West 1992 & Supp 1997); Mich. Ct. Rule 5.965(B)(9)&(10) (West
1998); N.M. Stat. Ann. sec. 32A-4-18(A)&(C) (Michie 1995); S.C.
Code
Ann. sec. 20-7-610(M) (West 1976 & Supp. 1997); Tenn. Code Ann.
sec.sec. 37-1-114(a), 37-1-117(c) (1996); Wis. Stat. Ann. sec.sec.
48.205, 48.21(4)
(West 1997); see also Haw. Rev. Stat. sec. 587-41(a) (1993)
(requiring
finding of reasonable cause); Wash. Rev. Code Ann. sec.
13.34.060(8)
(West 1998) (reasonable cause); N.C. Gen. Stat. sec. 7A-574(a)&(b)
(Michie 1995) (reasonable factual basis).  Although the dissent has
relied on cases from Arizona, Connecticut, and Massachusetts that
establish preponderance of the evidence as the proper standard for
a temporary custody hearing, the statutory schemes in place at the
time those cases were decided designated no standard of proof for
that hearing.  The dissent also finds support in a New York case,
but it involves a child custody dispute between parents.  The 
Virginia decision cited by the dissent discusses the standard of
proof necessary for an adjudication trial rather than a temporary
custody hearing.


Footnote 3:


     The United States Supreme Court articulated this test for
probable cause in Illinois v. Gates, 462 U.S. 213 (1983),
concluding that probable cause demands only a "fair probability"or
"substantial chance of criminal activity, not an actual showing of
such activity."  Id. at 238, 244 n.13.  Although the dissenting
opinion of Chief Justice Matthews characterizes this test as
"diluted"and "indistinguishable from reasonable suspicion,"as the
Supreme Court has recognized, the test for reasonable suspicion is
"obviously less demanding than that for probable cause."  United
States v. Sokolow, 490 U.S. 1, 7 (1989) (citing United States v.
Montoya de Hernandez, 473 U.S. 531, 541, 544 (1985)).  Reasonable
suspicion requires only that the officer have "'some minimal level
of objective justification' for making the stop,"id. (quoting INS
v. Delgado, 466 U.S. 210, 217 (1984)) and "be able to articulate
something more than an "inchoate and unparticularized suspicion or
hunch.'"  Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).


Footnote 4:

     By the date of the adjudication trial, the State has had an
opportunity to conduct a full investigation, review discovery of
all relevant documents, including hospital and school records of
the child, and interview all potential witnesses.  By contrast,
little information may be available at the time of the temporary
custody hearing, which must be held within forty-eight hours after
the State has taken emergency custody of the child.





                   FOOTNOTES (Compton Dissent)


Footnote 1:

     Reaching a conclusion "as a matter of law"means that the court denies the possibility
that there is room for a reasonable difference of opinion, based on the facts in the record and
inferences which can be drawn from the facts, as to the correctness of the conclusion.  See
Saslow v. Rexford, 395 P.2d 36, 41 & n.8 (Alaska 1964).



                   FOOTNOTES (Matthews Dissent)


Footnote 1:

     In Care & Protection of Robert, 556 N.E.2d 993, 995-1002 (Mass. 1990), the court
rejected a "reasonable cause"standard for review of the emergency removal of a child, noting
that the phrase implies merely a "suspicion"that the child is in need of care.  Id. at 998. 
Alarmed at the "relatively low degree of accuracy"of such a standard, the Massachusetts
court held that due process required the application of a preponderance-of-the-evidence
standard, especially where a temporary placement could last up to one year.  Id. at 997 n.5,
998, 1000. 

          Today's opinion observes that the Supreme Court has said that the test for
reasonable suspicion is "'obviously less demanding than that for probable cause.'"  Slip Op.
at 7, n.3 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).  I agree that the two
standards should be clearly distinguishable, and have two observations about the statement
quoted from Sokolow.  First, the statement does not repeat the "substantial chance"language
which I find objectionable.  Second, the statement in context with the sentence which
immediately precedes it implies an equivalency between "probable cause"and proof "by a
preponderance of the evidence"in contrast to "reasonable suspicion."  The two sentences
read 
          [Reasonable] suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence.  We have held that probable cause means
"a fair probability that contraband or evidence of crime will be found,"Illinois v. Gates, [462
U.S. 213, 238] (1983), and the level of suspicion required for a Terry stop is obviously less
demanding than that for probable cause . . . .

Sokolow, 490 U.S. at 7.


Footnote 2:

     Professor LaFave states: 

          If the function of arrest were merely to produce persons in court
for purposes of their prosecution, then a more-probable-than-not test would have considerable
appeal.  But there is also an investigative function which is served by the making of arrests. 
If a lawful custodial arrest is made, the police are then entitled to make a full search of the
arrestee, which might produce critical evidence of the crime of which the arrestee is
suspected.  As the Code draftsmen correctly note, an arrest will also make possible
identification procedures, and a particular case may well reach the point where such
procedures are called for though the more-probable-than-not test could not be met and
charging the suspect would not be called for.  The same may be said of other investigative
techniques, such as interrogation.  And it is precisely because arrest serves an investigative
function that "[t]he quantum of evidence necessary to sustain an arrest is not, in all
circumstances, the same quantum necessary to make out probable cause for charging a
person with the crime."

Wayne R. LaFave, Search and Seizure sec. 3.2(e), at 65-66 (3d ed. 1996) (footnotes
omitted). 


Footnote 3:

     This would be appropriate in any case where only the State presented proof or where,
as here, the underlying facts are not contested.


Footnote 4:

     Under current Fourth Amendment law, a warrant will not be invalidated so long as
there is a substantial basis for the magistrate's decision that probable cause exists.  See
Illinois v. Gates, 462 U.S. 213, 238-39
 (1983).  Professor LaFave observes that

          [w]hile this "substantial basis"review is more deferential than de
novo review (the standard for review of probable cause in non-warrant cases), it is "less
deferential than clearly erroneous review"(the standard of review used in other areas of law
to review the application of a legal standard to a particular set of facts).

LaFave, supra, sec. 3.1(c), at 16.