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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Peter A. v. State (11/10/2006) sp-6070

Peter A. v. State (11/10/2006) sp-6070, 146 P3d 991

     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,


) Supreme Court No. S- 12119
Appellant, )
v. ) Superior Court Nos. 4BE-05-00014/15 CP
SERVICES, OFFICE OF ) No. 6070 - November 9, 2006
Appellee. )

          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Leonard R. Devaney, Judge.

          Appearances:  Angela Greene, Assistant Public
          Defender,  Bethel,  and Quinlan  G.  Steiner,
          Public  Defender, Anchorage,  for  Appellant.
          Mary   Ann   Lundquist,  Assistant   Attorney
          General,  Fairbanks, and  David  W.  M rquez,
          Attorney General, Juneau, for Appellee.

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

          EASTAUGH, Justice.

          The  superior court adjudicated Peter A.s two  children
to  be children in need of aid (CINA) under AS 47.10.011(6), (9),
and  (10)  after  his  wife developed an alcohol  abuse  problem.
Peter  appeals  the  adjudication  order.   He  argues  that  the
superior court erred by adjudicating the children to be  in  need
of aid based solely on his wifes conduct, despite his ability and
willingness  to care for the children.  He also argues  that  the
adjudication  violates his constitutional  right  to  parent  his
children and the Indian Child Welfare Act.1  Because the superior
court dismissed the case soon after the adjudication there is  no
live  controversy for this court to decide.  Furthermore, because
we  vacate  the  adjudication order as a matter of equity,  Peter
will suffer no collateral consequences from the adjudication.  We
therefore  vacate the adjudication order and dismiss this  appeal
as moot.
          In  2002 Peter A. suffered a grave and permanent injury
in  a  snow  machine  accident.2  While he  was  recuperating  in
various hospitals and extended care facilities, his wife, Martha,
developed  an alcohol abuse problem.  When an intoxicated  Martha
appeared  with  two  of  their children at Peters  extended  care
facility in October 2004, the Alaska Office of Childrens Services
(OCS) took emergency custody of the children,  filed an emergency
petition for adjudication of the children as in need of  aid  and
for  temporary  placement, and sent the  children  to  live  with
Marthas  mother in Bethel. Martha soon rejoined the  children  in
her mothers home, but OCS retained supervisory custody.
          The  Anchorage  superior court held a  hearing  on  the
emergency petition in November 2004 and found probable  cause  to
believe  the children were in need of aid.  In December 2004  the
Anchorage superior court transferred venue to the superior  court
in Bethel.3
          Marthas alcohol abuse problems continued.  In May  2005
she  was arrested after police found her intoxicated and fighting
with another woman.
          In  late June 2005 Peter left the hospital and returned
to  his rural village under the care of his extended family.  OCS
placed his children with him on a trial basis the next day.   The
parties  agree  that  the placement went smoothly  and  that  the
children were happy and well-cared-for in Peters home.
          Around  the same time, Martha traveled to Anchorage  to
seek  substance abuse treatment.  She was still in  treatment  in
Anchorage  in  late  August 2005 when the  disputed  adjudication
order was entered.
          The  Bethel  superior  court entered  the  August  2005
adjudication  order after a protracted and sporadic  adjudication
hearing between April and August 2005.  On August 29 the superior
court  adjudicated the children to be in need  of  aid  under  AS
47.10.011(6) (substantial risk of harm), (9) (neglect), and  (10)
(substance  abuse).   It found that by driving  the  children  to
Peters  extended  care  facility while  intoxicated,  Martha  had
placed  the children at substantial risk of harm.  It also  found
that   Marthas  relapse  and  subsequent  arrest  in   May   2005
demonstrated that the children continued to be in need of aid  at
the  time of the adjudication.  The adjudication order gave Peter
continued  custody of the children, subject to state supervision.
The  order  also prohibited Martha from having contact  with  the
children except through arrangements made for visitation with the
state,   and   required  Peter  to  protect  the  children   from
unauthorized  contact with Martha and to report any such  contact
          to the state.
          On  October 4, 2005 OCS moved to dismiss the case based
on  the testimony of a state social worker that the children were
no  longer  at  risk.   The superior court  granted  the  motion.
Although Peter thus ultimately prevailed, he appeals the entry of
the  adjudication order.  He argues that the Indian Child Welfare
Act  and  the United States Constitution prohibit the court  from
adjudicating children in need of aid based solely on the  actions
of one parent if there is a second, fit parent who is willing and
able  to  care  for the child.  He also argues that his  children
were  not in need of aid at the time of adjudication.  The  state
contends  that Peters appeal is moot.  Martha is not a  party  to
the appeal.
          We heard oral argument in this case on May 9, 2006.  We
then  asked  the  parties for supplemental  briefing  on  several
issues.4   Because  we hold that Peters appeal  is  moot,  it  is
unnecessary  for  us  to  decide  the  issues  addressed  by  the
supplemental briefs.
     A.   Standard of Review
          Because  it  is  a matter of judicial policy,  mootness
presents  a question of law.5  We therefore apply our independent
judgment to claims of mootness.6
     B.   Peters Appeal Is Moot.
          Pointing  out  that the superior court, at  the  states
request, dismissed this case before disposition, the state argues
that we should dismiss Peters appeal of the adjudication as moot.
Peter  responds that the adjudication of his children as in  need
of  aid presents a live controversy both because the judgment has
prospective effect and because this case falls within the  public
interest exception to the mootness doctrine.
          A  claim  is  moot if it has lost its  character  as  a
present,  live  controversy.7 If the party  bringing  the  action
would not be entitled to any relief even if it prevails, there is
no  case or controversy for us to decide.8  A party generally may
not  appeal  a  judgment in its favor in order  to  challenge  an
interlocutory   order.9   Furthermore,   a   naked   desire   for
vindication  does  not  save an otherwise dead  controversy  from
mootness.10  Peter must show either that concrete relief would be
available to him if this court reversed the adjudication order or
that  the  issue falls into one of the exceptions to the mootness
          Peter  argues  that because the adjudication  order  is
separate   from  the  order  that  dismissed  the   case   before
disposition,  it  is  not  moot even  though  an  appeal  of  the
dismissal  order  would  be.  But an adjudication  is  merely  an
intermediate  ruling  on  the  path  to  disposition.   Once  the
superior  court  dismissed the case, the  state  lost  the  power
granted  it  by the adjudication order to interfere  with  Peters
family.  Thus, although the adjudication order may have been,  as
Peter  argues, a separate order from the disposition, it  is  not
one  that has any direct legal effect on Peter after the superior
court dismissed the case.
          Peter  also  argues that, even if the  adjudication  no
longer   directly   affects   him,   its   potential   collateral
consequences are significant enough to warrant judicial review of
the  adjudication.  He asserts that per AS 47.10.011(10), a child
adjudicated  to be in need of aid because of a parents  substance
abuse is subsequently presumed to be in need of aid if the parent
resumes  substance abuse within one year of rehabilitation.11  He
also   asserts  that  AS  47.10.011(9)  allows  a  child  to   be
adjudicated  in  need  of aid on the basis  of  past  neglect  of
another child in the same household.12
          The  collateral consequences doctrine allows courts  to
decide  otherwise-moot cases when a judgment may  carry  indirect
consequences in addition to its direct force, either as a  matter
of  legal  rules or as a matter of practical effect.13   We  have
recognized  the  collateral consequences doctrine.   In  E.J.  v.
State,  we  held  that  a  childs claim that  he  was  improperly
adjudicated to be delinquent was not moot even though  the  lower
court  later declared the adjudication of delinquency to be  void
ab  initio.14   We  held that review of the  initial  delinquency
          determination was justified, because the childs records were
easily   obtainable  and  could  be  made  available  to   school
authorities,  social  workers, parole officers,  judges  imposing
sentence for the commission of crimes, the military services,  or
prospective  employers, all of whom might be  influenced  to  the
detriment of the minor.15  Similarly, in Graham v. State, we held
that  the  revocation of the plaintiffs drivers license  was  not
moot even though the ninety-day period of revocation had ended.16
We reasoned in part that the collateral consequences of a drivers
license  revocation may be substantial.  Such  a  revocation  can
result in higher insurance rates, adverse employment consequences
and other serious results.17  Finally, in Martin v. Dieringer  we
held that a petition to remove a personal representative from  an
estate was not mooted by the fact that the estate had closed  and
the  defendant  was no longer the personal representative.18   We
reasoned  that the use of the lower courts findings to dismiss  a
related civil action on collateral estoppel grounds prevented the
controversy from becoming moot.19
          We   assume  for  the  sake  of  discussion   that   AS
47.10.011(9)  and (10) potentially create collateral consequences
for  Peter.20  But these consequences would not prevent  us  from
holding  that this appeal is moot.  In City of Valdez v.  Gavora,
we  adopted  the practice used by federal courts in disposing  of
moot  claims.21   At  the time, that practice required  not  only
dismissing  the  appeal, but also vacating the judgment  below.22
Although the United States Supreme Court has since clarified that
not all moot claims require vacatur, it has held that vacatur  is
especially  appropriate  when mootness  results  from  unilateral
action of the party who prevailed below.23  Otherwise, the  Court
explained,  the appellant is effectively forced to  acquiesce  in
the  judgment.24    In  other  words,  when  a  prevailing  party
voluntarily  moots  a case, without the appellants  acquiescence,
the  appellant,  through no fault of his own, is  prevented  from
obtaining  appellate  review of his claim.   We  agree  with  the
United  States  Supreme Court that principles of  equity  require
vacatur of the challenged order in such a case.25
          In  this  case, the validity of the adjudication  order
became  moot  because the state voluntarily moved to dismiss  the
case  at  disposition.  The states successful motion  to  dismiss
prevented  Peter from challenging the merits of the  adjudication
order  on  appeal.  Because equity therefore requires vacatur  of
the   adjudication   order,  Peters  argument   that   collateral
consequences arising under AS 47.10.011(9) and (10)  render  this
appeal a live controversy is unconvincing.  Peter will not suffer
any collateral consequences under these subsections.
          Peters additional argument that the adjudication  order
is  not  moot because an adjudication carries a permanent  social
stigma is also unpersuasive.  All the records in CINA proceedings
are  sealed.26  There is no publicly available record that Peters
children  were  adjudicated in need of aid.   Peter  acknowledges
that  CINA proceedings are confidential but argues that this fact
is  irrelevant  because during the course of the litigation,  OCS
contacted  many  of  the people with whom [Peter]  has  the  most
contact   his health care providers, his childrens teachers,  and
          his tribe and that these people are thus aware of the child
welfare  proceedings against him.  This may or  may  not  be  so.
After  all,  the proceedings were not against him and indeed  the
essence  of his challenge on the merits is that the CINA petition
was  based  only on Marthas misconduct.  But because all  parties
must maintain the confidentiality of all information in the court
file, issuing an opinion on the merits and reversing the superior
courts  confidential adjudication order would not publicly remedy
any possible social stigma, to the extent it exists.  Because the
remedy  he  is  requesting would not redress his alleged  injury,
social  stigma  does  not  give  Peter  standing  to  appeal  the
adjudication order.27
     C.    The Public Interest Exception to the Mootness Doctrine
     Does Not  Apply.
          Peter also argues that the public interest exception to
the  mootness doctrine applies to this case.  In deciding whether
to  hear  a  moot  appeal under this doctrine, we consider  three
          (1)  whether the disputed issues are  capable
          of   repetition,  (2)  whether  the  mootness
          doctrine, if applied, may cause review of the
          issues to be repeatedly circumvented, and (3)
          whether the issues presented are so important
          to   the   public  interest  as  to   justify
          overriding the mootness doctrine.[28]
We  weigh  each of these factors in our discretion  to  determine
whether to hear the case; none of the factors is dispositive.29
          The  state  concedes  that two  of  these  factors  are
arguably present here.  It consequently does not dispute that the
issues  are  capable  of  repetition  and  that  the  issues  are
important  to the public interest.30  The state instead  contends
only  that there is no danger that the issues presented  in  this
appeal  will  be  repeatedly circumvented in future  cases.   The
state argues that although it is likely that there will be future
cases in which children are adjudicated in need of aid because of
the  actions of one parent, many of those cases will result in  a
disposition  in  which the parents rights are terminated  or  the
parents dispute the placement of the children.  In such cases, an
appeal of the adjudication decision would not be moot because the
possibility of effective relief would be present.
          Peter  counters that if the court refuses to hear cases
in  which the state releases custody of the children after a year
of  litigation,  this  fact pattern will be  capable  of  endless
repetition,  leaving  aggrieved parents, like  [Peter],  with  no
          Peter  misidentifies  the  legal  issue  that  must  be
repeatedly  circumvented  for the public  interest  exception  to
apply.   The primary issue he would raise in this case is whether
children may be adjudicated in need of aid over the objections of
one  available fit and willing parent.  Cases in which the  state
releases custody of the children and thereby moots a fit  parents
appeal are presumably only a subset of those cases in which  that
          issue could arise, and in that subset of cases, relief is
available  in  the  form of vacatur.  In other  cases,  in  which
parents  receive unfavorable dispositions, they  have  the  legal
right to appeal the adjudication order as well as the disposition
order.  It therefore seems likely that parents actually harmed by
a CINA adjudication will have an opportunity to litigate the same
questions  Peter raises in this appeal.  Because this means  that
review  of  the issue in this case is not likely to be repeatedly
circumvented,  we  decline  to apply  to  this  case  the  public
interest exception to the mootness doctrine.
          For  the  reasons discussed above, we VACATE the  order
adjudicating  Peters  children in need of aid  and  DISMISS  this
appeal as moot.
     1    25 U.S.C.  1901 et seq. (1978).

     2    We use pseudonyms for all family members.

     3    The state filed two CINA cases, one for each child.  We
refer to them collectively as the case.

     4     Our  supplemental briefing order asked the parties  to
address these issues:

               a.    how other jurisdictions have dealt
          with  cases  in  which  the  state  seeks  to
          adjudicate  a child in need of aid  over  the
          objections of a non-offending or fit parent;
               b.    whether  other jurisdictions  have
          found children to be in need of aid based  on
          past conditions that have been alleviated  by
          the time of the adjudication;
               c.    whether  and to what extent  after
          the  state  obtains legal custody but  before
          adjudication the state must make  efforts  to
          assist   a   parent  who  is  not  unfit   in
          protecting  children who are in need  of  aid
          from an unfit parent; and
               d.     whether   the   superior   courts
          adjudication   findings  were  adequate   for
          purposes of review.
     5    Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).

     6    Id.

     7     Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518,  523
(Alaska  1993) (quoting United States v. Geophysical  Corp.,  732
F.2d 693, 698 (9th  Cir. 1984)).

     8     Ulmer  v. Alaska Rest. & Beverage Assn, 33  P.3d  773,
776 (Alaska 2001).

     9    See Fairbanks Fire Fighters Assn, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (holding that  unions
appeal  of  intermediate  legal  question  was  moot  because  it
obtained relief sought from superior court).

     10     13A  Charles Alan Wright et al., Federal  Practice  &
Procedure  3533, at 212 (2d ed. 1984).

     11    See AS 47.10.011.  Under this provision

          the  court may find a child to be a child  in
          need of aid if it finds by a preponderance of
          the   evidence  that  the  child   has   been
          subjected to any of the following:
               . . . .
               (10) the parent, guardian, or custodians
          ability  to     parent has been substantially
          impaired by the addictive     or habitual use
          of   an  intoxicant,  and  the  addictive  or
          habitual  use of the intoxicant has  resulted
          in  a       substantial risk of harm  to  the
          child;   if  a  court has   previously  found
          that a child is a child in need of aid  under
          this  paragraph, the resumption of use of  an
          intoxicant   by   a  parent,   guardian,   or
          custodian    within      one    year    after
          rehabilitation is prima facie evidence   that
          the   ability   to  parent  is  substantially
          impaired and   the addictive or habitual  use
          of  the  intoxicant  has     resulted  in   a
          substantial  risk of harm  to  the  child  as
          described in this paragraph.
(Emphasis added.)

     12     AS 47.10.011(9) allows adjudication if conduct by  or
conditions  created by the parent, guardian,  or  custodian  have
subjected  the  child or another child in the same  household  to

     13    Wright, supra note 10,  3533.3, at 291.

     14    E. J. v. State, 471 P.2d 367, 36870 (Alaska 1970).

     15    Id.

     16    Graham v. State, 633 P.2d 211, 213 (Alaska 1981).

     17    Id.

     18    Martin v. Dieringer, 108 P.3d 234, 236 (Alaska 2005).

     19    Id.

     20    We express no opinion about Peters interpretation of AS
47.10.011(9)  and  (10) or whether they may give  rise  to  post-
dismissal consequences adverse to him.

     21     City  of  Valdez v. Gavora, Inc., 692 P.2d  959,  960
(Alaska  1984); see also United States v. Munsingwear, Inc.,  340
U.S. 36, 39 (1950).

     22    City of Valdez, 692 P.2d at 960.

     23     U.S.  Bancorp Mortgage Co. v. Bonner Mall Pship,  513
U.S. 18, 25 (1994).

     24     Id.; see also Dilley v. Gunn, 64 F.3d 1365, 1370 (9th
Cir.  1995)  ([A]  litigant should not be  bound  by  an  adverse
unreviewed judgment when mootness results from unilateral  action
of  the  party who prevailed below. ) (quoting U.S. Bancorp,  513
U.S.  at  25); Ocean Conservancy v. Natl Marine Fisheries  Serv.,
416  F.  Supp. 2d 972, 981 (D. Haw. 2006) (vacating order denying
preliminary  injunction after case became moot due to  defendants
actions);  cf.  Wright, supra note 10,  3533.10, at  436  (noting
that  mooted interlocutory appeals do not require vacatur if  the
case remains alive in the district court).

     25     We express no opinion about whether Gavoras seemingly
broad assertion that a holding of mootness requires vacating  the
judgment below should be narrowed in light of the Supreme  Courts
discussion in U.S. Bancorp.

     26    See CINA Rule 22(a).

     27    See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)
(holding  that appellant lacked standing to request  relief  that
would not have redressed his alleged injury).

     28     Fairbanks Fire Fighters Assn, Local 1324 v.  City  of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).

     29    Id.

     30     One  of  the  issues at stake in this  case  that  is
particularly   important   to  the   public   interest   is   the
interpretation  AS  47.10.011.  The  parties  vigorously  dispute
whether  its  subsections are unclear regarding  the  effect  the
availability of a non-offending parent willing and able  to  care
for  the child may have on the adjudication determination.  Peter
argues  that  the statute requires individualized  assessment  of
each  parent;  the state responds that the statutes  use  of  the
singular parent instead of parents allows for adjudication solely
on the basis of one parents actions.  The parties also vigorously
dispute  whether  these  subsections are  unclear  about  whether
children  may  be adjudicated in need of aid on the  basis  of  a
parents  prior  acts  if  the  state cannot  also  demonstrate  a
continuing  risk  of  harm  to  the  children.   Relying  on  our
interpretation of a former version of Title 47, Peter argues that
a  child must be in need of aid at the time of adjudication.  The
state  argues  that  recent amendments to the statute  allow  for
consideration of prior conduct of the parents that is unlikely to
continue  into the future. Because Peters appeal is moot,  we  do
not  need  to  address these issues today.  But we do  note  that
other  states  have adjudication statutes that  are  considerably
more  precise regarding one or both of these issues.  See,  e.g.,
Me.  Rev. Stat. Ann. tit. 22  4035(2)(C) (requiring court to make
a  jeopardy determination with regard to each parent who has been
properly  served); Md. Code Ann. Cts. & Jud. Proc.  3-819(e)  (If
the  allegations in the petition are sustained against  only  one
parent  of a child, and there is another parent available who  is
able  and  willing to care for the child, the court may not  find
that  the  child  is a child in need of assistance,  but,  before
dismissing  the case, the court may award custody  to  the  other
parent.);  Ut.  Code Ann.  78-3a-301(1)(a) (allowing  removal  of
child whenever there is an imminent danger to the physical health
or  safety of the child; and . . . the childs physical health  or
safety  may not be protected without removing the child from  the
custody of the childs parent or guardian).

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