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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rowan B. v. State, Dept. of Health & Social Services, Office of Children's Services (3/21/2014) sp-6881

Rowan B. v. State, Dept. of Health & Social Services, Office of Children's Services (3/21/2014) sp-6881

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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ROWAN B., Sr. and RISA F.,                             )  

                                                       )         Supreme Court No. S-15107  

                            Appellants,                )  

                                                       )         Superior Court Nos. 3PA-12-00057,  

         v.                                            )        3PA-12-00058, and 3PA-12-00059 CN  


STATE OF ALASKA,                                       )        O P I N I O N  


DEPARTMENT OF HEALTH &                                 )  

SOCIAL SERVICES, OFFICE OF                             )        N o. 6881 - March 21, 2014  

CHILDREN'S SERVICES,                                   )  


                            Appellee.                  )  

                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Palmer, Kari Kristiansen, Judge.  

                  Appearances:  Rachel Cella, Assistant Public Defender, and  


                  Quinlan Steiner, Public Defender, Anchorage, for Appellant  



                  Rowan B., Sr.  Michael A. Rose, Frontier Law Group, LLC,  

                  for  Appellant  Risa  F.           Joanne  Grace,  Assistant  Attorney  


                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                  General, Juneau, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  WINFREE, Justice.  

----------------------- Page 2-----------------------


                   Rowan  B.,  Sr.  and  Risa  F.  appeal  the  adjudication  of  their  children  as  


children in need of aid.   The adjudication was based on allegations that Rowan had  

physically  and  sexually  abused  their  daughter  and  Risa's  daughters  from  an  earlier  


relationship and that Risa was too mentally ill to care for the children.  Risa challenges  

the finding that her mental illness prevents her from adequately parenting the children.  


Rowan raises numerous challenges to the trial court's actions, including arguments about  

notice and denial of materials during discovery.  We hold that the trial court erred in  

denying  Rowan  access  to  materials  he  sought  through  discovery  without  at  least  


conducting an in camera review.  We retain jurisdiction and remand the case to the trial  

court for further limited proceedings.  



                   Rowan and Risa are the divorced parents of three children:  Agnes, Rowan  


Junior (Junior), and Saul.  Risa suffers from schizoaffective bipolar disorder, which she  

does not always treat as prescribed.  After the parties divorced in 2006, Rowan had  


custody of the parties' three children as well as Risa's two older children, Aeryn and  

Reagan, who now are adults.  The State of Alaska, Department of Health and Social  


Services, Office of Children's Services (OCS) had contact with the family at the time the  

parents divorced, but OCS released the children to Rowan after working with him for a  

period of time.  

                   In 2012 Aeryn reported that Rowan had sexually and physically abused  

both her and Reagan over a number of years.  She said she did not report the abuse  


earlier because she was "afraid for [her] life" due to Rowan's threats. Aeryn said Rowan  


impregnated her when she was 17 and threatened to kill her with a two-by-four; she left  

          1        We use pseudonyms to protect the privacy of the parties.  

                                                           -2-                                                        6881  

----------------------- Page 3-----------------------

the home the next day.  Aeryn also said that Rowan had beaten Risa but used Risa's  

mental illness against her when Risa reported the abuse.  

                   Aeryn became concerned that Rowan was sexually abusing Agnes, and  


when Agnes was visiting Risa for the summer, Aeryn asked Agnes about it.  Although  

Agnes initially denied any abuse, Aeryn later took Agnes to Alaska CARES, where  

Agnes detailed several years of sexual and physical abuse by Rowan.  


                   Agnes said that Rowan began sexually abusing her when she was 11 and  


that Rowan put his penis in her vagina the first time he had sexual contact with her.  She  


described other sexual abuse as well.  Agnes also reported that Rowan physically abused  


her by hitting her with his hands, a belt, and an extension cord.  She described seeing  

Rowan sexually abuse Reagan once, when Agnes was "little."  Agnes said that Junior  


was Rowan's favorite child and as a result received little punishment.  She indicated that  

Rowan sometimes spanked Saul "on the butt" with his hand when Saul misbehaved.  


                   OCS removed Junior and Saul from Rowan's home in June 2012; Agnes  


had not returned to Rowan's home and was living with Aeryn.  OCS filed an emergency  

petition for custody of all three children shortly afterwards.  The emergency petition  


alleged that the children were in need of aid under several subsections of AS 47.10.011,  


including  subsections (6) (physical harm), (7) (sexual abuse or risk of sexual abuse),  


(8) (mental injury), (10) (parental use of intoxicants), and (11) (parental mental illness).  

                   Before  the  adjudication  hearing,  Rowan  moved  the  court  to  order  the  

Alaska State Troopers (AST) and the Anchorage Police Department (APD) to release  


"copies of all reports, records, and recordings" about the children or about their parents  

                                                  2  AST opposed the motion on the grounds that the  

to assist him in preparing for trial.                         

          2        The record does not show that Rowan attempted to obtain the information  


any other way, such as by scheduling a deposition, before making his motion.  

                                                             -3-                                                         6881  

----------------------- Page 4-----------------------

only records it possessed were protected under exceptions to disclosure listed in the   


Alaska Public Records Act,  but it expressed willingness to provide some of the records 


to the trial court for in camera review if the court thought it necessary.  APD responded  


that the request was overly broad and was premature because Rowan had not subpoenaed  


the records.  Rowan then said he was willing to work with APD to narrow the scope of  


his request "if appropriate."  The trial court did not conduct an in camera review or  


explain why it did not do so; instead it denied the motion in its entirety based on the two  


cited subsections of the Alaska Public Records Act.  


                    The contested adjudication hearing was held over three days in January and  

February 2013.  At the hearing, OCS informed the court it would be proceeding under  


AS 47.10.011(7) (sexual abuse or risk of sexual abuse) applicable to Rowan and under  

AS 47.10.011(11) (parental mental illness) applicable to Risa.  After the parents made  


their opening statements, the guardian ad litem (GAL) told the court she would ask the  

court to make findings under the following AS 47.10.011 subsections:  (6) (physical  

harm) and (8) (mental injury) against both parents, (7) (sexual abuse or risk of sexual  

abuse)  against  Rowan,  and  (11)  (parental  mental  illness)  against  Risa.    The  GAL  


participated  in  the  hearing  but  did  not  testify,  call  any  witnesses,  or  introduce  any  



                    Aeryn and Agnes both testified about Rowan's physical and sexual abuse.  


Two healthcare providers testified about Risa's mental illness and her treatment.  Dana  


Overfelt, the primary OCS social worker assigned to the case, testified about the parents'  


case plans, OCS's efforts to help the family, and prior contacts between OCS and the  


          3         AS 40.25.100-.295.  AST relied on AS 40.25.120(a)(2), records pertaining  

to juveniles, and (a)(6), law enforcement records.  

                                                                -4-                                                             6881  

----------------------- Page 5-----------------------

                    Rowan  initially  planned  to  testify,  but  after  the  judge  warned  him  that  

whatever he said could be used in a potential criminal case, he decided not to testify.  His  


attorney indicated that Rowan's decision not to testify was influenced by his inability to  


get the documents he had requested from law enforcement in his discovery motions.  


Rowan's only witness was a visitation supervisor from the Anchorage OCS office; she  

said that visitation was going well and that Rowan was appropriate with the boys.  


                    During  closing,  OCS  asked  for  findings  for  all  three  children  under  

subsections (7) (sexual abuse or risk of sexual abuse) and (11) (parental mental illness).  



Because only Agnes had been sexually abused, it asked the court to rely on In re P.N. 

to find that Junior and Saul were children in need of aid under the "risk of sexual abuse"  


provision of AS 47.10.011(7).  In his closing argument Rowan attacked the credibility  


of Aeryn and Agnes, argued that there was no evidence he had in any way mistreated  


Junior or Saul, and again raised the issue of the court's denial of access to police records.  


He also argued that because Agnes did not want to live with him, the court could find  


that  she  was  a  child  in  need  of  aid  under  AS  47.10.011(5),  the  subsection  about  


                    After the parents finished their closing arguments, the GAL asked the court  


to find the children to be children in need of aid  under AS  47.10.011's subsections  


(4) (failure to provide needed medical care), (6) (physical harm), (7) (sexual abuse or risk  

of  sexual  abuse),  (8)  (mental  injury),  and  (11)  (parental  mental  illness).    Rowan's  


attorney asked the court for extra time for argument after the GAL's argument because  

of  the  GAL's  request  for  findings  under  additional  subsections  that  OCS  had  not  


mentioned; the court did not grant extra time.  The court decided the parents were given  

          4         533  P.2d  13,  16  (Alaska  1975)  (holding  that  father's  sexual  abuse  of  

daughter demonstrated serious disregard of parental responsibilities and lack of social  

and moral values that posed substantial risk of harm to sons).  

                                                               -5-                                                             6881  

----------------------- Page 6-----------------------


adequate notice of the possibility of findings under subsections (6) (physical harm) and  

(8) (mental injury) because the GAL mentioned them in her opening statement.  


                    The  trial  court  adjudicated  the  children  to  be  in  need  of  aid  under  

AS 47.10.011's subsections (6) (physical harm), (7) (sexual abuse or risk of sexual  

abuse), (8) (mental injury), and (11) (parental mental illness).  The court found that  


subsections (6), (7), and (8) applied to Rowan, relying on his "chronic ongoing physical  


and sexual abuse . . . against his daughters."  The court noted it "believe[d] the abuse did  


occur" because of "the compelling and convincing nature of the testimony."  The court  

also found that Junior and Saul had witnessed Rowan physically abusing Agnes.  The  


court found the children to be in need of aid under subsection (11) based on Risa's  


mental illness.  The court found that it was in the children's best interests to be in OCS's  

temporary custody pending disposition.  Rowan moved for reconsideration, and the court  


denied the motion.  The court later issued a disposition order giving OCS custody of the  

children for up to two years.  




                    We interpret court rules de novo.   We review de novo whether a trial court  



considered the appropriate factors in issuing a discovery order.                                  "We review issues of  


statutory and constitutional construction de novo, adopting the rule of law that is most  


persuasive in light of precedent, reason, and policy."    

          5         Rhodes v. Erion , 189 P.3d 1051, 1053 (Alaska 2008).  

          6         Prentzel v. State, Dep't of Pub. Safety                   , 169 P.3d 573, 594 (Alaska 2007)  

(citing Peter v. Progressive Corp. , 986 P.2d 865, 867 (Alaska 1999)).  

          7         Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

309 P.3d 1262, 1267 (Alaska 2013) (citing Smart v. State, Dep't of Health & Soc. Servs.,  


237 P.3d 1010, 1014 (Alaska 2010)).  

                                                               -6-                                                         6881

----------------------- Page 7-----------------------


          A.         Rowan's Discovery Motion  

                     Rowan argues that the trial court denied him due process by denying his  


motion for production of records from law enforcement without conducting an in camera  


review.  In response, OCS frames the issue not as a constitutional matter, but rather as  


a discovery dispute and argues that the standard of review should be abuse of discretion;  


it argues in the alternative that even if the trial court abused its discretion, Rowan has not  


shown that the error harmed him.  In his reply brief, Rowan contends that even under an  


abuse of discretion standard the trial court's ruling should be reversed.  


                     With limited exceptions not applicable here, the discovery provisions of  


                                                                                                                        We have  

Alaska Civil Rules 26-37 and 45 apply in child in need of aid (CINA) cases. 

previously  held  that  "the  civil  rules  are  committed  to  a  system  of  liberal  pretrial  



discovery."   Although AST raised the issue of the Alaska Public Records Act, Rowan  

did not make a request for records as a member of the general public; his motion was for  


discovery directly  relevant to the civil proceeding against him.  Civil Rule 26(b)(1)  


provides that a party "may obtain discovery regarding any matter, not privileged which  


is relevant to the subject matter involved in the pending action."  As part of the discovery  


process, a party can, with few exceptions, depose and obtain relevant documents from  


any person who may have information relevant to the litigation.10  

          8          CINA Rules 1(e) and 8(b).  

          9         Jones v. Jennings , 788 P.2d 732, 735 (Alaska 1990) (citing                                  United Servs.  

Auto. Ass'n v. Werley , 526 P.2d 28, 31 (Alaska 1974)).  

           10        Alaska R. Civ. P. 30-31, 45.  We recognize that Rowan apparently did not  


first attempt to conduct a records deposition in this case, but OCS does not raise this  

procedural issue as a reason to deny his request and it seems likely that had Rowan  



                                                                -7-                                                          6881

----------------------- Page 8-----------------------

                   Although we previously have construed the Public Records Act,11 we have  


not considered the interaction between the exceptions to disclosure in that statute and  


civil discovery rules.  Both provide access to information, but they do so for different  


reasons and provide different types of access.  As one federal court wrote in relation to  

the federal Freedom of Information Act (FOIA):12  

                             The FOIA furthers the public's general right to know  

                   and      ensures       government          accountability.             Discovery  

                   discourages unfair surprise and delay at trial.  In the FOIA  


                   context, the requesting party's need for the information is  

                   irrelevant  .  .  .  .    In  the  discovery  context,  when  qualified  

                   privilege is properly raised, the litigant's need is a key factor.  


                   Whether the information is disclosed depends on the relative  


                   weight of the claimant's need and the government's interest  



                   in confidentiality.  


                   Here the trial court denied all access to the information Rowan requested  

in his discovery motion, relying on exceptions to disclosure in the Public Records Act  


instead of analyzing the discovery request under the Civil Rules.  There is no indication  


in the trial court's order that it considered whether Rowan's need for the information as  

a litigant outweighed the law enforcement agencies' interests in not disclosing it.  This  

was legal error and requires a remand to the trial court.  

          10       (...continued)  

sought records depositions, the parties would have been before the trial court in exactly  

the same posture attempting to resolve the discovery dispute.  

          11       See, e.g., Gwich'in Steering Comm. v. State, Office of the Governor, 10  

P.3d 572 (Alaska 2000).  

          12       5 U.S.C.  552 (2012).             We have noted some parallels between the FOIA  

and the Public Records Act.  Gwich'in Steering Comm., 10 P.3d at 577 n.6.  

          13       Friedman v. Bache Halsey Stuart Shields, Inc. , 738 F.2d 1336, 1344 (D.C.  


Cir. 1984).  

                                                            -8-                                                      6881

----------------------- Page 9-----------------------

                    We note that Rowan apparently now has been charged criminally with  

numerous counts of child sexual abuse and presumably has been provided in his criminal  


case with much, if not all, of the information he sought through discovery in the CINA  


case.       If any information requested in the CINA discovery motion and identified by the  


law enforcement agencies has not been provided to him, the court should order law  

enforcement to provide him with the information or make a claim of privilege or other  


protection with respect to that information. The trial court then can conduct an in camera  



review  of  documents  to  assess  any  claim  of  privilege  or  other  protections. 


Rowan's discovery requests have been resolved, he should be given the opportunity to  


bring any information obtained through discovery in his criminal case and in this case  


to the attention of the trial court.  The trial court then must review any new information  


to determine whether the new information changes the trial court's determination that the  

children are in need of aid under any statutory basis relied upon.  

          B.        Application Of AS 47.10.011(7)  

                    Because  we  are  remanding  this  case  to  give  Rowan  an  opportunity  to  

present evidence previously unavailable to him, we do not consider whether the trial  


court's finding that Junior and Saul are at substantial risk  of sexual abuse is clearly  


erroneous.  But we clarify the legal standard to be applied when a parent is found to have  

sexually abused one child in the household.  


                    Rowan argues that the trial court erroneously found Junior and Saul to be  


children in need of aid under AS 47.10.011(7) (risk of sexual abuse) by relying on In re  

          14        See Alaska R. Crim. P. 16(b) (setting out discovery available to accused in   

criminal case).  

          15        See In re Mendel, 897 P.2d 68, 75 (Alaska 1995) (setting out procedure for  


in camera review when work-product privilege is claimed); see also Honda Motor Co.  


v. Salzman, 751 P.2d 489, 492-93 (Alaska 1988) (discussing protection for trade secret).  


                                                                -9-                                                         6881

----------------------- Page 10-----------------------


P.N. ,   which he claims no longer is applicable because of statutory changes; he contends  


that the court's finding that he sexually abused the girls does not make the boys children  


in need  of aid under subsection (7).  OCS responds that this court "still accepts the  


foundational principles of" In re P.N. and that the trial court's findings about Rowan's  


sexual abuse of the girls is adequate support for its finding that the boys are at substantial  


risk of being sexually abused.  

                    In In re P.N. the trial court had found all of the children, including three  

boys, to be in need of aid because the father admitted having sexually abused his ten- 


year-old daughter.             We decided there was  

                    support for the finding of dependency in that the [father's]  

                    treatment of the girl could be considered to have evidenced  

                    such a serious disregard of parental responsibilities and lack  


                    of social and moral values on [the father's] part as to pose a  


                    substantial risk to the physical and emotional well-being of  


                    the boys as well as the girl.  

The statutory basis for our decision was former AS 47.10.010(a)(5),19 which provided  


that a child was in need of aid when the child "lack[ed] proper parental care by reason  

                                                                                          20   This statutory basis for  


of faults, habit or neglect of his parent, guardian or custodian." 

CINA status was later repealed.21  

          16        533 P.2d 13 (Alaska 1975).

          17        Id. at 16.

          18        Id.

          19        Id.

       In  re  S.D. ,  549   P.2d  1190,  1194  (Alaska  1976)  (quoting  former  AS  

47.10.010(a)(5) (1975)).  

          21        See In re J.M., 573 P.2d 1376, 1377 n.1 (Alaska 1978) (noting repeal of  



                                                             -10-                                                       6881

----------------------- Page 11-----------------------

                    Alaska Statute 47.10.011(7), on the other hand, allows a court to find a  

child to be a child in need of aid when "there is a substantial risk that the child will suffer  


sexual  abuse, as a result of conduct by or conditions created by the child's parent."  


Under AS 47.10.011(7), a parent's allowing a child to be left with a person having a  


history as a sex offender or who is under investigation for a sex offense against a minor  

establishes a prima facie case that the child is at substantial risk of sexual abuse.  But the  


statute does not specify that parental conduct toward a child's siblings would constitute  

prima  facie  evidence  of  a  substantial  risk  of  sexual  abuse,  nor  does  it  define  what  

constitutes substantial risk of sexual abuse.22  


                    Noting that the legislature included parental conduct toward siblings in the  



definition of neglect,             Rowan  asks us to apply the maxim of statutory construction  


expressio unius est exclusio alterius to decide that the legislature did not intend the  


sexual abuse of one sibling to be a basis for a finding that other children in the same  


household are at risk of sexual abuse.   We decline to do so.  We also reject Rowan's  


argument that the legislature intended to overrule In re P.N. when it revised the CINA  

                                                                                                                       24 and  

statutes.  The legislature did not list In re P.N. as a case it intended to overrule, 

          21        (...continued)  

former AS 47.10.010(a)(5)).  

          22        Cf.   AS  47.10.015  (setting  out   when  court   may  find  physical  harm  or  

substantial  risk  of  physical  harm).    AS  47.10.990(31)  defines  "sexual  abuse"  for  

purposes of AS 47.10.011.  

          23        AS 47.10.011(9) permits a court to find a child to be in need of aid when  

"conduct by or conditions created by the parent . . . have subjected the child or another  


child in the same household to neglect."  

          24        The legislature listed several cases it intended to overrule when it revised


the statute in 1998 to change the bases on which a child could be found in need of aid,



                                                             -11-                                                        6881

----------------------- Page 12-----------------------

Rowan  points  to  no  affirmative  statement  in  the  statute  or  the  legislative  history  

indicating any disagreement with the reasoning of that case.  


                     As one court has observed, courts "overwhelmingly" have decided that a  


parent's sexual abuse of one child in the household is substantial evidence that the other  



children  are  at  risk  of  sexual  abuse.                     Similar  to  our  reasoning  in  In  re  P.N. ,  the  


California Court of Appeal has held that a father's "conduct [was] 'so sexually aberrant'  


to support the common sense conclusion that most every person in the family home was  


at risk of sexual abuse."                 Although the statutory basis for CINA status now may be  


different than it was in In re P.N. , we continue to adhere to the principles underlying that  

case, and consequently we hold that when a trial court finds a parent has sexually abused  


one child in the household, the court may presume that other children in the household  

are at substantial risk of sexual abuse.  

                     The statutory language supports our construction of the statute.  Alaska  

Statute 47.10.011(7) provides that a parent's leaving a child in the care of someone who  

the parent knows is under investigation for child sexual abuse is "prima facie evidence  


that the child is at substantial risk of being sexually abused."  It would not make sense  

          24         (...continued)  

including In re S.A. , 912 P.2d 1235 (Alaska 1996) and R.J.M. v. State , 946 P.2d 855  

(Alaska 1997).  See ch. 99,  1, 18, SLA 1998.  

          25         Los Angeles Cnty. Dep't of Children & Family Servs. v. Superior Court of     

Los Angeles Cnty. , 156 Cal. Rptr. 3d 502, 506 (Cal. App. 2013) (reversing trial court's                             

denial of dependency petition); see also In re I.J., 299 P.3d 1254, 1262 (Cal. 2013)  

(construing California statute as not requiring scientific or empirical evidence for finding  


that male children are at risk of sexual abuse when their sister has been sexually abused  


by father).  



                     In re Ana C. , 139 Cal. Rptr. 3d 686, 698 (Cal. App. 2012) (quoting In re  

Karen R. , 115 Cal. Rptr. 2d 18, 22 (Cal. App. 2001)).  

                                                                -12-                                                          6881

----------------------- Page 13-----------------------


for a child to be considered at risk of sexual abuse when left in the care of someone who  

has been convicted of a sex offense or is under investigation for sexual abuse, but the  

same  child  not  to  be  considered  at  risk  of  sexual  abuse  when  it  is  the  parent  under  


investigation for sexual abuse or found to have sexually abused another child in the  


                      If  on  remand  Rowan  still  is  under  investigation  or  subject  to  criminal  

charges for sexual abuse of a minor, the trial court may apply the statutory presumption  


that Junior and Saul are at substantial risk of being sexually abused.     And if the trial  

court again finds that Rowan sexually abused Agnes, it can conclude that Junior and Saul  

are at substantial risk of being sexually abused.28  

V.         CONCLUSION  


                      We REMAND this case to the trial court for proceedings consistent with  

this opinion.  Jurisdiction is RETAINED.  

           27         AS 47.10.011(7).  

           28         Because we are remanding the case for further proceedings and retaining           

jurisdiction, we do not now address Risa's challenge to the trial court's findings about           

the children being in need of aid due to her mental illness.  We likewise do not now  

evaluate Rowan's arguments about the adequacy of the evidence to support findings  

under other statutory subsections.  See Martha S. v. State, Dep't of Health & Soc. Servs.,  


 Office of Children's Servs., 268 P.3d 1066, 1080 (Alaska 2012) (citing Jon S. v. State,  


Dep't of Health & Soc. Servs., Office of Children's Servs. , 212 P.3d 756, 762 (Alaska  

2009)) (holding that only one statutory basis is required to find a child in need of aid).  

                                                                   -13-                                                                 6881  

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