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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Clementine F. v. State, Dept. of Health & Social Services, Office of Children's Services (6/17/2016) sp-7109

Clementine F. v. State, Dept. of Health & Social Services, Office of Children's Services (6/17/2016) sp-7109

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                          

           corrections@appellate.courts.state.ak.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



CLEMENTINE  F.                                                  )  

                                                                )          Supreme  Court  No.  S-15948  

                     Appellant,                                 )  

                                                                                                                                      

                                                                )          Superior Court No. 3CO-15-00001 CN  

           v.                                                   )  

                                                                                                

                                                                )          O P I N I O N  

                     

STATE OF ALASKA,                                                )  

                                                                                                              

DEPARTMENT OF HEALTH &                                          )          No. 7109 - June 17, 2016  

                                                     

SOCIAL SERVICES, OFFICE OF                                      )  

                          

CHILDREN'S SERVICES,                                            )  

                                                                )  

                     Appellee.                                  )  

_______________________________ )  



                                                                                                              

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

                                                                                                             

                      Judicial District, Cordova, Daniel Schally, Judge pro tem.
  



                                                                                                                    

                     Appearances:  Brian D. Camozzi, Law Office of Gregory S.
  

                                                                                                     

                      Parvin, Anchorage, for Appellant.  Jonathan A. Woodman,
  

                                                                                                                  

                      Senior Assistant Attorney General, Anchorage, and Craig W.
  

                                                                                                                   

                      Richards, Attorney General, Juneau, for Appellee. Marika R.
  

                                                                                                            

                     Athens, Assistant Public Advocate,  and Richard K. Allen,
  

                                                                                             

                      Public Advocate, Anchorage, Guardian Ad Litem.
  



                                                                                                                 

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

                                   

                      Bolger, Justices.
  



                                         

                      BOLGER, Justice.
  

                                                                                                                                  

                      STOWERS,  Chief  Justice,  with  whom  MAASSEN,   Justice,  joins,
  

                      dissenting.
  


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

I.                 INTRODUCTION  



                                      TheOfficeofChildren's Services                                                                 (OCS) tookemergencycustody                                                              ofachild                     



after receiving reports that her mother's conduct had placed her at risk of harm.                                                                                                                                                      OCS  



then investigated the child's father, who lived out of state, and determined that the child                                                                                                                                              



would be safe in his care.                                               At the temporary custody hearing, the superior court granted                                                                                            



the father's motion to dismiss the case and ordered the child released from OCS custody.                                                                                                                                                                  



The   mother   appeals,   arguing   that   the   court   should   have   granted   her   request   for   a  



continuance and held an evidentiary hearing on the father's conduct and that the court                                                                                                               



erred by                   dismissing   the petition                                            without first                            making   findings on                                       the allegations it                            



contained.   We conclude that the mother had no right to an evidentiary hearing on the                                                                                                                                                        



father's conduct and that the superior court did not err by dismissing the petition when                                                                                                                                               



OCS declined to pursue it.                                            



II.                FACTS AND PROCEEDINGS                      



                   A.                 Facts  



                                                                                                                                                                                                                                   1  

                                      Jasmine was born in February 2009 to Clementine and Jermaine.                                                                                                                                   Both  



                                                                                                                                                                                                                                     

parents have equal legal rights to Jasmine, and there is no custody order in place.  When  



                                                                                                                                                                                                                                                 

this case began, Clementine resided in Cordova with Jasmine, and Jermaine resided in  



                                  

Minnesota.  



                                                                                                                                                                                                                                     

                                      In July 2014 OCS began receiving protective service reports that raised  



                                                                                                                                                                                                                       

concerns about Jasmine's safety in Clementine's care. Reports filed in July, September,  



                                                                                                                                                                                                                                             

and October 2014 alleged that Clementine was using heroin and methamphetamine, that  



                                                                                                                                                                                                                                            

Clementine was spending nights with Jasmine at the homes of drug dealers, and that  



                                                                                                                                                                                          

Jasmine had been sexually abused by her babysitter.  In January 2015 OCS received a  



                                                                                                                                                                                                                                

protective service report alleging that Clementine left Cordova and did not take Jasmine  



                   1  

                                                                                                                                                                                                                     

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



                                                                                                                        -2-                                                                                                                         7109  


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

with her.   In February Clementine's friend Jewel reported that Clementine dropped  

                                                                                                                       



Jasmine off with Jewel and did not return for several weeks.  Jewel told OCS that this  

                                                                                  



conduct was part of a pattern for Clementine, who frequently left Jasmine with Jewel for  

                                                                                                                                



weeks at a time despite plans to return within a few days.  

                                                                                         



                    OCS also received a report alleging that on March 4, Clementine and  

                                                                                                                              



Jasmine had moved into a trailer with an individual known to be using and possibly  

                                                                                                                       



dealing drugs. OCS met with Clementine shortly after it received this report. During the  

                                                                                                                               



meeting  Clementine  stated  that she intended  to  move to  Soldotna because she had  

                                                                                                                              



nowhere to live in Cordova; she denied using drugs or alcohol but refused to perform a  

                                                                                                                                  



field sobriety test or submit to urinalysis.  Jasmine told OCS and the police that loud  

                                                                                                                             



noises at night had prevented her from sleeping since she and Clementine had moved  

                                                                                                                         



into the trailer and that she no longer attended school.  

                                                                                   



          B.        Proceedings  



                    OCS took Jasmine into emergency custody on March 6 and placed her in  

                                                                                                                                 



a foster home. On March 9 OCS filed an emergency petition for adjudication of Jasmine  

                                                                                                                        



as a child in need of aid (CINA).  Magistrate Judge Kay Adams held an initial hearing  

                                                                                                          



that same day, made a preliminary finding of probable cause to believe that Jasmine was  

                                                                                                                              



a child in need of aid, and found that it was not in Jasmine's best interests to allow her  

                                                                                                                  



to remain with Clementine. At the hearingthecourt appointed Assistant Public Defender  

                                                                                                                      



Michael Horowitz as counsel for Clementine and also appointed a guardian ad litem for  

                                                                                                                                



Jasmine.        Jermaine  attended  the  hearing  telephonically,  but  he  did  not  request  the  

                                                                                                                               



appointment  of  counsel  at  that  hearing.                        Magistrate  Judge  Adams  continued  the  

                                                                                                                              



temporary custody hearing until March 24.  

                                                                    



                    Superior Court Judge pro tem Daniel Schally presided over the March 24  

                                                                                                                                



hearing.  Clementine did not appear at this hearing, and Horowitz reported that he had  

                                                                                                                              



                                                               -3-                                                         7109
  


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

                                                                                                                                      

been unable to contact Clementine prior to the hearing and had not yet spoken with her.  



                                                                                                             

The court appointed counsel for Jermaine at the hearing at his request.  



                                                                                                                            

                    OCS reported at the hearing that Jasmine was currently living with Jewel  



                                                                                                                      

and that it was investigating whether there were any safety concerns with releasing  



                                                                                                                   

Jasmine to Jermaine's custody.  The court kept Magistrate Judge Adams's preliminary  



                                                                                                                              

findings in place but continued the temporary custody hearing until April 2 so that  



                                                                                                                              

Jermaine could "speak with a lawyer and go over some things with them so [he's] able  



                                                                                                                          

to move forward intelligently" and so that Horowitz could contact Clementine.  



                                                                                                                         

                    On March 27 Clementine filed a motion objecting to placement of Jasmine  



                                                                                                                              

with Jermaine. Clementine stated that she was opposed to Jermaine taking Jasmine back  



                                                                                                                 

to Minnesota; she would prefer that Jasmine continue to live with Jewel.  Clementine's  



                                                                                                                      

objection noted that OCS told Jewel that OCS "intend[ed] to give placement of [Jasmine]  



                                                                                                                        

to . . . [Jermaine], on Wednesday[,] April 1, 2015, the day before the continued probable  



                                                                                                                                

cause hearing on April 2, 2015."  Clementine specifically objected to "the timing of the  



                                                                                                                            

proposed  change"  in  placement  and  argued  that  "[n]either  OCS  nor  any  other  



                                                                                                                                      

representative  of  the  State  ha[d]  notified  [her  counsel]  of  the  proposed  change."  



                                                                                                                              

Clementine based her objection on her allegations that Jermaine had previously had very  



                                                                                                                         

limited contact with Jasmine and had not strongly bonded with the child, while Jasmine  



                                                

had a strong bond with Jewel.  



                                                                                                                             

                    On April 1 the State filed a response to Clementine's objection.  The State  



                                                                                                                        

argued that "[a]ll the parties . . . were on notice that custody would likely be released  



                                                                                                                                      

once OCS verified that [Jermaine] had no Minnesota [Child Protection Services] history.  



                                                                                                                                

The information . . . was expressly provided so that everybody was on notice that the  



                                                                                           

State anticipated [Jasmine] being released to [her] father."  



                                                                -4-                                                         7109
  


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

                                                                                                                          

                    Jermaine also filed a motion on April 1 requesting that the court release  



                                                                                                                                

custody of Jasmine to him and dismiss the case.  He asserted that OCS had reviewed his  



                                                                                                                     

criminal and Child Protection Services records in Minnesota and Alaska and concluded  



                                                                                                                      

that it had no safety concerns with releasing Jasmine to his custody. Jermaine requested  



                                                                                                                                 

expedited consideration of his motion because he was scheduled to fly out of Alaska on  



              

April 2.  



                                                                                                                          

                    In themeantimethePublicDefender Agency identified aconflict ofinterest  



                                                                                                                                

that  prevented  Horowitz  from  continuing  to  represent  Clementine.                                       On  March  31  



                                                                                                                                      

attorney Brian Camozzi filed a superseding entry of appearance on Clementine's behalf.  



                                                                                                                        

But, according to Clementine, "correspondence between the parties . . . was directed  



                                                                                                      

to . . . Horowitz rather than [Camozzi] until 2:52 PM on April 1."  



                                                                                                                       

                    Upon  receipt  of  his  first  email  regarding  Clementine's  case,  Camozzi  



                                                                                                        

immediately  prepared  and  filed  a  response  opposing  Jermaine's  motion  to  release  



                                                                                                                            

custody. In this opposition, Clementine argued that the court should order OCS to retain  



                                                                                                                         

custody of Jasmine so that Clementine could conduct discovery and determine whether  



                                                                                                                              

Jermaine  posed  a  risk  to  Jasmine's  safety.                       In  particular,  she  raised  concerns  that  



                                                                                                                             

Jermaine had abandoned Jasmine under AS 47.10.013 because he had not paid child  



                                                                                                                                 

support  in  the  last  three  years.                Clementine  also  argued  that  releasing  Jasmine  to  



                                                                                                                            

Jermaine  would  not  be  in  Jasmine's  best  interests.                            She  asked  the  court  to  deny  



                                                                                                                      

Jermaine's motion to release custody and to conduct an evidentiary hearing regarding  



                                                                                                                             

Jasmine's release, noting that since Camozzi had just joined the case, he would need  



                                                           

more time to prepare for that hearing.  



                                                                                                                             

                    At the April 2 temporary custody hearing, OCS and the guardian ad litem  



                                                                                                                              

both supported Jermaine's motion.  Clementine repeated her request that the court keep  



                                                                -5-                                                         7109
  


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

Jasmine in foster care until the court could hold an evidentiary hearing on Jermaine's                                                                                                                                                                                        



history with child support obligations and whether his lack of contact might amount to                                                                                                                                                                                                                         



abandonment of Jasmine.                                                                      



                                                At the end of the hearing the superior court concluded that there was not   



"sufficient information . . . to make any kind of finding that release to [Jermaine] is not                                                                                                                                                                                                               



appropriate." The court explained that Clementine could not directly bring child in need                                                                                                                                                                                                             



of aid allegations against Jermaine because "it's the State['s] . . . decision whether or not                                                                                                                                                                                                             



to move forward with such allegations, and the State . . . is not doing so in this case, has                                                                                                                                                                                                              



not done so, and has pretty clearly stated that they have no intention of doing so."                                                                                                                                                                                                                  But  



the court reasoned that "to the extent that [Clementine was] making a request under                                                                                                                                                                                                             



 [CINA Rule 6] . . . to grant emergency custody to [OCS]," such a request would fail                                                                                                                                                                                                                     



because her petition was not "supported by a statement of fact sufficient to show that                                                                                                                                                                                                                 



 [Jasmine] is in need of aid and is in a condition which requires the immediate assumption                                                                                                                                                                                   

                                                                               2   Accordingly, the court released Jasmine from OCS custody and  

of custody [by OCS]."                                                                                                                                                                                                                                                                                    



dismissed the case.  

                                                                      



                                                Clementine then filed a motion asking the court to reconsider its decision,  

                                                                                                                                                                                                                                                                                      



arguing (1) that the court erred in applying CINA Rule 6(b) to her opposition and that  

                                                                                                                                                                                                        

the court should instead have applied CINA Rule 19.1(b)3  or (d),4  which she argued  

                                                                                                                                                                                                                                                                                           



                        2                       See  CINA Rule 6(b).                                     



                        3                       CINA Rule 19.1(b) provides that "[a]t any time in a proceeding, a party  

                                                                                                                                                                                                                                                                                               

who is opposed to [OCS] transferring a child from one placement to another may move  

                                                                                                                                                                                                                                                                                                 

the court for a review hearing at which the requesting party must prove by clear and  

                                                                                                                                                                                                                                                                                   

convincing evidence that the transfer would be contrary to the best interests of the child."  

                                                                                                                                                                                                                                                                                              



                        4                       CINA Rule 19.1(d) provides that "[a]t any time in a proceeding, the court  

                                                                                                                                                                                                                                                                                                   

may review matters not otherwise covered by [the CINA] rules upon motion of a party  

                                                                                                                                                                                                                                                                                                

or on its own motion."  

                                                 



                                                                                                                                                      -6-                                                                                                                                           7109
  


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

provides for a review hearing to be held at a party's request, and (2) that the court                                                                                                             



violated Clementine's due process rights.                                                            



                                The   superior   court   denied   Clementine's   motion   for   reconsideration.   



Clementine appeals.                               



III.            STANDARD OF REVIEW                           



                                "We review a denial of a motion to continue for 'abuse of discretion,                                                                                



determining   whether   a   party   has   been   deprived   of   a   substantial   right   or   seriously  



                                                                                                              5  

prejudiced by the [superior] court's ruling.' "                                                                                                                                                       

                                                                                                                  We "consider 'the particular facts and  



                                                                                                                                                                                                        

circumstances  of  each  individual  case  to  determine  whether  the  denial  was  so  



                                                                                                                                                                            6  

                                                                                                                                                                          

unreasonable or so prejudicial as to amount to an abuse of discretion.' " 



                                                                                                                                                                                                            

                                "Whether the trial court's factual findings satisfy the CINA statutes is a  

                                         7   "We exercise our independent judgment when interpreting Alaska's  

                                                                                                                                                                                          

                             

question of law." 

procedural rules, including the CINA rules."8  

                                                                                           



                5               Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                              



Servs., 289 P.3d 924, 930 (Alaska 2012) (quoting                                                                         Ben M. v. State, Dep't of Health &                                               

Soc. Servs., Office of Children's Servs.                                                     , 204 P.3d 1013, 1018 (Alaska 2009)).                                      



                6               Rowan B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                     

Servs., 361 P.3d 910, 912-13 (Alaska 2015) (quoting A.A. v. State, Dep't of Family &  

                                                                                                                                                                                                          

 Youth Servs., 982 P.2d 256, 259 (Alaska 1999)).  

                                                                                                   



                7               Id . (citing  Casey K.  v.  State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                                                         

Children's Servs., 311 P.3d 637, 643 (Alaska 2013)).  

                                                                                                                                  



                8               Alyssa B. v. State, Dep't of Health &Soc. Servs. , 123 P.3d 646, 648 (Alaska  

                                                                                                                                                                                             

2005) (footnote omitted) (citing Airoulofski v. State , 922 P.2d 889, 892 (Alaska 1996)).  

                                                                                                                                                                                              



                                                                                                    -7-                                                                                            7109
  


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

                        Whether Clementine's due process rights were violated is also a question                                              



            9  

of law.                                                                                                                                                

                Questions of law are reviewed de novo, and we will adopt "the rule of law that  



                                                                                                            10  

                                                                                               

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



IV.	        DISCUSSION  



                                                                                                                                                    

            A.	         The Superior Court Did Not Err By Releasing Jasmine From OCS  

                                                                                  

                        Custody And Dismissing The Case.  



                                                                                                                                              

                        We first determine whether the superior court erred in releasing Jasmine  



                                                                                                                                                               

from OCS custody and dismissing the case under the applicable CINA rules and statutes.  



                                                                                                                                                       

Clementine takes issue with the fact that the superior court dismissed the case before any  



                                                                                                                                                    

further proceedings could occur with regards to the petition.  She argues that once OCS  



                                                                                                                                              

filed the petition, CINA Rule 10 required the court to make findings on whether probable  



                                                                                                                                                

cause existed to believe that Jasmine was a child in need of aid.  Clementine further  



                                                                                                                                                         

asserts that if there was no probable cause, OCS was required to return Jasmine to  



                                                                      

Clementine and not to another parent.  



                                                                                                                                                           

                        Under AS 47.10.142(d), "[a]t the first [temporary custody] hearing . . . ,  



                                                                                                                                       

regardless of whether a continuance is granted,  the court shall make a preliminary  



                                                                                                                                                          

determination of whether continued placement in the home of the child's parent . . .  



                                                                                                                                                         

would be contrary to the welfare of the child."  Magistrate Judge Adams's findings on  



                                                                                                                                                   

March 9 fit squarely within this definition of preliminary findings, as they were made  



within a few hours of OCS taking emergency custody of Jasmine.  And Judge Schally  



                                                                                                                                                     

left these preliminary findings in place on March 24 to give Jermaine time to speak with  



                                                                                                           

counsel and to give Horowitz time to contact Clementine.  



            9           See Philip J. v. State, Dep't of Health & Soc. Servs., Office of Children's                                       



Servs., 264 P.3d 842, 846 (Alaska 2011) (citing                                       Jeff A.C., Jr. v. State             , 117 P.3d 697, 702         

(Alaska 2005)).   



            10          Id . (quoting Jeff A.C., Jr., 117 P.3d at 702 (citations omitted)).  

                                                                                                                                           



                                                                            -8-	                                                                   7109
  


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

                               Although Clementine is correct that Magistrate Judge Adams and Judge                                                                                        



 Schally made only preliminary probable cause findings, she incorrectly concludes that                                                                                                          



the   court   is   required   to   keep   Jasmine   in   OCS   custody   until   it   makes   a   specific  



determination on the bases for removal listed in the emergency petition. On the contrary,                                                                                            



"[t]he [superior] court may dismiss a [CINA] petition at any time based on a finding of                                                                                                             

                                                                                                                                                              11  In this case, the  

good cause consistent with the welfare of the child and the family."                                                                                                                              



good cause requirement was satisfied by the agreement of OCS, the guardian ad litem,  

                                                                                                                                                                                            



and the assistant attorney general in charge of the State's case.  

                                                                                                                                                    



                               As a general rule, the attorney general "possesses the  . . . power to make  

                                                                                                                                                                                            



any disposition of the [S]tate's litigation which he [or she] thinks best . . . includ[ing] the  

                                                                                                                                                                                                  

initiation, prosecution and disposition of cases."12   And "[w]hen an agency functions to  

                                                                                                                                                                                                     



protect the public in general . . . , the agency normally exercises its discretion in deciding  

                                                                                                                                                                                     

whether  formal  proceedings  should  be  commenced."13                                                                                  In  this  case,  OCS  and  the  

                                                                                                                                                                                                 



Department of Law declined to pursue the emergency petition after they determined that  

                                                                                                                                                                                                 

                                                                                                 14   In such a situation, the superior court does  

Jasmine would be safe in Jermaine's care.                                                                                                                                                      

                                                                                      



                11             CINA Rule 7(g).              



                12             Pub. Def. Agency v. Superior Court, Third Judicial Dist.                                                                              , 534 P.2d 947,                       



950 (Alaska 1975) (first citing State v. Finch, 280 P. 910 (Kan. 1929); then citing United  

                                                                                                                                                                                          

States v. San Jacinto Tin Co.                                      , 125 U.S. 273, 279 (1888);                                     Fed. Trade Comm'n v. Claire                            

Furnace Co.                   , 274 U.S. 160 (1927);                                Smith v. United States                              , 375 F.2d 243, 246-47 (5th                             

Cir. 1967);               United States v. Cox                           , 342 F.2d 167 (5th Cir. 1965);                                       Boyne v. Ryan                     , 34 P. 707       

(Cal. 1893); Ames v. Attorney Gen. , 124 N.E.2d 511 (Mass. 1955)) .  

                                                                                                                                                              



                13              Vick v. Bd. of Elec. Exam'rs, 626 P.2d 90, 93 (Alaska 1981); see also In re  

                                                                                                                                                                                                     

E.H., 742 S.E.2d 844, 852-53 (N.C. App. 2013) (holding that the state may voluntarily  

                                                                                                                                                                                

dismiss a juvenile petition, analogous to Alaska's petition for adjudication of a child in  

                                                                                                                                                                                                     

need of aid, without the consent of the guardian ad litem or the parents).  

                                                                                                                                                                          



                14             The  superior  court  also  considered  Clementine's  allegations  against  

                                                                                                                                                                                       

                                                                                                                                                                          (continued...)  



                                                                                                 -9-                                                                                         7109
  


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

not abuse its discretion by dismissing the CINA case.                                                                                                                                                                And because the court may                                                                     



dismiss the petition "at any time," it was not required to make probable cause findings                                                                                                                                                                                                              



before doing so here.                                                            



                                                  Because the superior court dismissed the case, it made no final probable                                                                                                                                                                         



cause findings. CINA Rule 10(c)(1) states that if the court does not find probable cause,                                                                                                                                                                                                                    



it "shall order the child returned to the home and dismiss the petition," and a related                                                                                                                                                                                                               



requirement in AS 47.10.142(e) states that in the absence of a probable cause finding,                                                                                                                                                                                                                



the   court   must   "order   the   child  returned   to   the   custody   of   the   child's   parents   or  



guardian." CINA Rule 10 does not define the word "home," and we read CINA Rule 10                                                                                                                                                                                                                                          



in conjunction with AS 47.10.142(e) so that CINA Rule 10(c)(1), consistent with the                                                                                                                                                                                                                                     



statute, requires the court to "order the child returned to the custody of the child's parents                                                                                                                                                                                                           



or guardian."  That is precisely what the superior court did in this case.  It found good   



cause to dismiss the petition, made no probable cause finding as a result, and ordered that                                                                                                                                                                                                                            



Jasmine be released from OCS custody.                                                                                                                 We conclude that the superior court did not err                                                                                                                     



                                                                                                                                                                                                                                                                                                              15  

when it dismissed the petition and ordered Jasmine's release from OCS custody.                                                                                                                                                                                                                                         



                         B.	                      The Superior Court Was Not Required To Grant Any Relief Under  

                                                                                                                                                                                                                                                                                                          

                                                  CINA Rule 19.  

                                                                                                 



                                                  Clementine filed an opposition to Jermaine's motion to release custody of  

                                                                                                                                                                                                                                                                                                                            



Jasmine to him and to dismiss the case against Clementine, arguing that Jasmine should  

                                                                                                                                                                                                                                                                                                           



remain in OCS custody because there was a potential that Jasmine might be a child in  

                                                                                                                                                                                                                                                                                                                             



need of aid based on Jermaine's conduct. In particular, Clementine alleged that Jermaine  

                                                                                                                                                                                                                                                                                                   



                         14(...continued)  



                                                                                                                                                                                                                                                                                                                           

Jermaine and reasonably found no support  for "any kind of finding that release to  

                                                   

 [Jermaine] is inappropriate."  



                         15                       The final order stated that "it is hereby ordered that [Jasmine] is released  

                                                                                                                                                                                                                                                     

from OCS custody and this case be dismissed."  The order did not specify that Jasmine  

                                                                                                                                                                                                                                                                                                      

was to remain in Jermaine's custody following this dismissal.  

                                                                                                                                                                                                  



                                                                                                                                                           -10-	                                                                                                                                                  7109
  


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

abandoned   Jasmine   under   AS   47.10.013,   but   she   stated   that   she   needed   time   for  



additional discovery to substantiate her allegations.                                                                                                                                                                                 The superior                                                      court treated her                                        



opposition as a "petition . . . for an order granting emergency custody of the child to                                                                                                                                                                                                                                                                                



 [OCS]" made under CINA Rule 6(b), and denied the request.                                                                                                                                                                         



                                                         Clementine first argues that the superior court should instead have treated                                                                                                                                                                                                               



her opposition to Jermaine's motion as a petition for review under CINA Rule 19.1(d).                                                                                                                                                                                                                                                                                                



 She notes that CINA Rule 6(b) governs the commencement of a CINA proceeding and,                                                                                                                                                                                                                                                                             



in this case, the proceeding had already commenced when OCS filed its emergency                                                                                                                                                                                                                                                 



petition on March 9.                                                                    CINA Rule 19.1(d), on the other hand, provides that a "court may                                                                                                                                                                                                      



review matters not otherwise covered by [the CINA] rules upon motion of a party."                                                                                                                                                                                                                                                                                      



                                                         WeassumethatClementineis correct when sheargues                                                                                                                                                                                   that CINARule6(b)                                                   



does not apply to this situation. However, while CINA Rule 19.1(d) provides for review                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                 16  Clementine does not  

of anomalous situations, it does not confer any substantive rights.                                                                                                                                                                                                                                                                                                



point to any authority under which the State may retain custody of a child if a court has  

                                                                                                                                                                                                                                                                                                                                                                  



not found probable cause to believe the child is in need of aid, and the CINA rules do not  

                                                                                                                                                                                                                                                                                                                                                                   



grant Clementine the right to compel OCS to continue to prosecute the case against her  

                                                                                                                                                                                                                                                                                                                                                                 



by bringing allegations against the other parent. The superior court granted Clementine  

                                                                                                                                                                                                                                                                                                                               



all the relief to  which  she is entitled  by dismissing  the allegations against her  and  

                                                                                                                                                                                                                                                                                                                                                               



ordering Jasmine's release from OCS custody.  CINA Rule 19.1(d) does not entitle her  

                                                                                                                                                                                                                                                                                                                                                                  



to further review of a matter already settled in her favor.  

                                                                                                                                                                                                                      



                             16                           Compare   CINA   Rule   19.1(d)   ("[T]he   court   may  review   matters   not  



otherwise covered by these rules upon motion of a party or on its own motion."),                                                                                                                                                                                                                                                                              with  

CINA Rule 19.1(b) (specifically providing for "a review hearing at which the requesting                                                                                                                                                                                                                                             

party must prove by clear and convincing evidence that [a] transfer [of placement] would                                                                                                                                                                                                                                                             

be contrary to the best interests of the child").                                                                                                                 



                                                                                                                                                                                -11-                                                                                                                                                                        7109
  


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

                                              Clementine   also   argues   that   CINA   Rule   19.1(b)   should   apply   to   her  



opposition.  CINA Rule 19.1(b) states that "[a]t any time in a proceeding, a party who  



is opposed to [OCS] transferring a child from one placement to another may move the                                                                                                                                                                                                           



court   for   a   review   hearing   at   which   the   requesting   party   must   prove   by   clear   and  



convincing evidence that the transfer would be contrary to the best interests of the child."                                                                                                                                                                                                                



                                              But OCS did not "transfer[] [Jasmine] from one placement to another"; the                                                                                                                                                                        



court released Jasmine from custody when it dismissed the case.                                                                                                                                                                     In the CINA rules,                               



relevant statutes, and OCS regulations, "placing" a child is distinguished from releasing                                                                                                                                                                                 



a child from OCS custody.                                                                    For example, CINA Rule 10(c) requires the court to "order                                                                                                                             



the child                      placed  in the temporary custody of [OCS] . . . if the court finds probable cause                                                                                                                                                                      



to believe that the child is a child in need of aid," but if no probable cause is found, the                                                                                                                                                                                                  

                                                                                                                                                                                                                          17           Interpreting  CINA  

court   is   directed   to   "order   the   child   returned   to   the   home."                                                                                                                                                                                                  



Rule 19.1(b) in the manner urged by Clementine would permit parents to shoehorn  

                                                                                                                                                                                                                                  



matters into a CINA proceeding that are more properly addressed in the context of a  

                                                                                                                                                                                                                                                                                                    



private custody dispute. We conclude that CINA Rule 19.1(b) does not grant the parents  

                                                                                                                                                                                                                                                                                



a right to a custody hearing when the child is released from OCS custody.  

                                                                                                                                                                                                                                                                 



                       C.                     The Issue Of Clementine's Request For A Continuance Is Moot.  

                                                                                                                                                                                                                                                                   



                                              Clementine argues that the superior court abused its discretion by refusing  

                                                                                                                                                                                                                                                                             



to continue the April 2 proceedings.   She argues that although CINA Rule 10(a)(1)  

                                                                                                                                                                                                                                                                           



                       17                     CINA Rule 10(c)(1) & (2) (emphases added);                                                                                                                       see also                      AS 47.14.100(a)   



("[OCS] shall arrange for the care of every child committed to its custody by placing the                                                                                                                                                                                                      

child in a foster                                            home or in the care of an agency or institution . . . ."); 7 Alaska                                                                                                                                                

Administrative   Code   (AAC)   56.990(5)   (2015)   (   "   '[A]rranges   or   arranging   for  

placement' means planning for a child's care and treatment, selection of a particular                                                                                                                                                                               

foster  care,   residential   care,   guardianship,   or   adoption   setting   for   a   child   .   .   .   and  

supervision of a child's care.");                                                                            id.  (36) (" '[P]lacement setting' includes a foster home                                                                                                                

and a residential child care facility licensed under 7 AAC 50 and a home providing                                                                                                                                                                                    

guardianship or adoption for a child.").                                                               



                                                                                                                                              -12-                                                                                                                                      7109
  


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

requires the court to schedule a temporary custody hearing within 48 hours of OCS                                                                                                                



taking emergency custody of a child, CINA Rule 10(a)(2) permits a court to continue                                                                                                                            



the temporary custody hearing when a parent is not prepared to respond to an emergency                                                                                             

                    18    Clementine points out that Camozzi had been assigned to her case less than  

petition.                                                                                                                                                                                          



two days before the April 2 hearing, and that we have stated that "[i]t is imperative that  

                                                                                                                                                                                                    



counsel be afforded adequate time in which to prepare his [or her] defense, especially  

                                                                                                                                                    

when serious charges . . . must be squarely met."19  

                                                                                                                          



                                "[W]e will refrain from deciding questions where events have rendered the  

                                                                                                                                                                                                      

legal issue moot."20                              CINA Rule 10(a)(2) permits the court to grant a continuance if a  

                                                                                                                                                                                                          



parent "is not prepared to respond to the petition."   But here, the petition has been  

                                                                                                                                                                                                 



dismissed; there are no longer any charges to be met.  By dismissing the petition, the  

                                                                                                                                                                                                      



court granted all of the relief that it could grant to Clementine with respect to that  

                                                                                                                                                                                                   



petition, and there is no longer any live controversy as to whether Clementine engaged  

                                                                                                                                                                                         



in the alleged conduct or whether that conduct caused Jasmine to be a child in need of  

                                                                                                                                                            

         21     Accordingly, Clementine was not entitled to any additional time to respond to  

aid.                                                                                                                                                                                                    



                18              CINA Rule 10(a)(2) states that "[t]he court may continue a temporary                                                                                



custody hearing at the request of a parent . . . upon a showing of good cause for why the                                                                                                             

parent . . . is not prepared to respond to the petition.                                                                     A continuance must be requested                          

before or at the outset of the hearing."                             



                19             Klockenbrink v. State, 472 P.2d 958, 965 (Alaska 1970).  

                                                                                                                                                       



                20             Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d  

                                                                                                                           

 1165, 1167 (Alaska 2002) (quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)).  

                                                                                                                                                                                            



                21              See id. ("A claim is moot if it is no longer a present, live controversy, and  

                                                                                                                                                                                                    

the party bringing the action would not be entitled to relief, even if it prevails." (citing  

                                                                                                                               

Gerstein, 960 P.2d at 601)).  

                                                    



                                                                                                  -13-                                                                                           7109
  


----------------------- Page 14-----------------------

those allegations.                                  And to the extent that Clementine was requesting a continuance to                                                                                                                             



substantiate her allegations against Jermaine, the court properly denied her request;                                                                                                                                           



CINA Rule 10(a)(2) does not grant her a right to a continuance on those grounds.                                                                                                                                                            



                   D.                 The Superior Court Did Not Violate Clementine's Due Process Rights.                                                                                                                          



                                      The parties agree that Clementine has a fundamental liberty interest in                                                                                                                                    



parenting Jasmine.                                      The United States Supreme Court has held that "[t]he fundamental                                                                                            



liberty interest of natural parents in the care, custody, and management of their child does                                                                                                                                               



not evaporate simply because they . . . have lost temporary custody of their child to the                                                                                                                                                      



                    22  

State."                                                                                                                                                                                                                             

                             The parties also agree that the State would violate that fundamental liberty  



                                                                                                                                                                                                                    

interest if it were to remove a child from a parent without due process.   Clementine  



                                                                                                                                                                                                                             

argues that thesuperior court interfered with her fundamental liberty interest inparenting  



                                                                                                                                                                                                                                    

Jasmine without due process by (1) failing to make probable cause findings with respect  



                                                                                                                                                                                                                                               

to  the  State's  initial  allegations  against  her  and  (2)  releasing  Jasmine  without  an  



                                                                                                                                                                                               

evidentiary hearing on Clementine's allegations against Jermaine.  



                                                                                                                                                                                                                                    

                                      Clementine's first argument apparently rests on her desire to see OCS's  



                                                                                                                                                                                                                                          

"thus-far unsupported allegations against her . . . laid to rest." But those allegations were  



                                                                                                                                                                                                                                 

laid  to  rest  when  the  superior  court  dismissed  the  case.                                                                                                                By  doing  so,  it  granted  



                                                                                                                                                                                                                                              

Clementine all the relief to which she would be entitled even if it had made specific and  



                                                                                                                                                                                                                                              

final findings on the allegations in the emergency petition:  dismissal of the petition and  



                   22  

                                                                                                                                                        

                                      Santosky v. Kramer, 455 U.S. 745, 753 (1982).  



                                                                                                                      -14-                                                                                                                           7109  


----------------------- Page 15-----------------------

                                                                                                                                  23  

a determination that the State had no right to custody of Jasmine.                                                                     Clementine's request   



for specific findings on the allegations made against her was therefore mooted when the                                                                                     

superior court dismissed the case.                                    24  



                                                                                                                                                           

                            Moreover,  both  OCS  and  the  superior  court  followed  the  procedures  



                                                                                                                                                                         

established in the CINA rules and statutes.   Under CINA Rule 6(a), OCS may take  



                                                                                                                                                                             

emergency custody of a child without a court order, provided that it files, "within 24  



                                                                                                                                                                              

hours after custody was assumed, a petition alleging that the child is a child in need of  



                                                                                                                                                                               

aid." OCS followed this protocol, submitting the emergency petition within 24 hours of  



                                                         

taking custody of Jasmine.  



                                                                                                                                                               

                           Next,   under   AS   47.10.142(d),   "[a]t   the   first   [temporary   custody]  



                                                                                                                                                                                

hearing . . . , regardless of whether a continuance is granted, the court shall make a  



                                                                                                                                                                    

preliminary determination of whether continued placement in the home of the child's  



                                                                                                                                                                       

parent . . . would be contrary to the welfare of the child." Accordingly, Magistrate Judge  



                                                                                                                                                                           

Adams made a preliminary determination that there was probable cause to believe that  



                                                                                                                                                                        

Jasmine was a child in need of aid and that it was not in Jasmine's best interests to allow  



                                                                                                                                                                              

her to remain with Clementine. Judge Schally left these preliminary findings in place on  



                                                                                                                                                       

March 24 to give Jermaine time to speak with his counsel and to give Clementine's  



                                                                                                                                                           

attorney time to contact her. Magistrate Judge Adams's and Judge Schally's preliminary  



                                                                                                                                                                       

findings  demonstrate  that,  contrary  to  Clementine's  assertions,  the  court  did  make  



                                                                                                                                                                

probable cause findings regarding whether Jasmine was a child in need of aid. Although  



              23           See  CINA Rule 10(c)(1) (if the court does not find probable cause, it "shall                                                              



order the child returned to the home and dismiss the petition").                                             



              24           See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1017 (Alaska  

                                                                                                                                                                  

2010) ("A claim is moot . . . 'if the party bringing the action would not be entitled to any  

                                                                                                                                                                           

relief even if it prevails.' " (quoting  Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d  

                                                                                                                                                                         

773, 776 (Alaska 2001))).  

                                     



                                                                                     -15-                                                                               7109
  


----------------------- Page 16-----------------------

the superior court later found good cause to dismiss the case and did not make final                                                               

probable cause findings, the dismissal obviated the need for such findings.                                                          25  



                        Clementine's second argument - that the superior court violated her right  

                                                                                                                                                   



to  due  process  by  releasing  Jasmine  from  OCS  custody  without  conducting  an  

                                                                                                                                                      



evidentiary hearing on her allegations against Jermaine - misapprehends the scope of  

                                                                                                                                                        



the CINA proceeding and the court's order.  Contrary to her argument, the order which  

                                                                                                                                                 



we are reviewing did not "place children with a particular parent" or "make a quick and  

                                                                                                                                                     



unreviewable custody decision." Instead, the superior court determined that as between  

                                                                                                                                             



the State and Jasmine's parents, the parents were entitled to custody and the State was  

                                                                                                                            



not.       As  we  reasoned  above  in  Section  B,  the  court  was  not  required  to  hold  an  

                                                                                                                                                      



evidentiary hearing on Clementine's allegations against Jermaine before making that  

                                                                                                                                                    



decision.  

                  



                        We are mindful of the physical reality that before the State's involvement,  

                                                                                                                                    



Jasmine lived with Clementine, while after the State's involvement, Jasmine lives with  

                                                                                                                                                   



Jermaine.   But we review the superior court's decision, not the actions of OCS or  

                                                                                                                                                       



Jermaine.  The court made no determination as to which parent should have custody of  

                                                                                                                                                        



Jasmine; rather, it properly dismissed a petition that OCS had decided not to pursue, and  

                                                                                                                                                     



ordered Jasmine released from OCS custody as required by CINA Rule 10.  

                                                                                                                                  



                        We therefore conclude that the superior court did not violate Clementine's  

                                                                                                                                    



right to due process.  

                       



V.          CONCLUSION  



                        We AFFIRM the superior court's order releasing Jasmine from OCS's  

                                                                                                                                               



custody and dismissing the case.  

                                                            



            25  

                                                                                                                                              

                        See CINA Rule 7(g) (authorizing the superior court to dismiss the petition  

                                                                     

"at any time" if it finds good cause to dismiss).  



                                                                          -16-                                                                         7109  


----------------------- Page 17-----------------------

 STOWERS, Chief Justice, with whom Maassen, Justice, joins, dissenting.                                                                                                                                                                                                                                                                                                                                   



                                                                       I dissent from today's opinion because I believe that the superior court                                                                                                                                                                                                                                           



moved too quickly through these proceedings.                                                                                                                                                                                                             As a result, Clementine never had the                                                                                                                                                        



 opportunity to meaningfully contest the allegations against her, and the superior court                                                                                                                                                                                                                                                                                                                                                   



released JasminetoJermainewithout                                                                                                                                                               fully consideringallegations that                                                                                                                                          hehad abandoned                     



Jasmine. By so doing the court erroneously failed to provide Clementine a continuance,                                                                                                                                                                                                                                                                                                        



 failed to conduct a hearing, and violated Clementine's due process rights.                                                                                                                                                                                                                                                                                                                           



I.	                                DISCUSSION  



                                   A.	                                 The Superior Court Erred By Releasing Jasmine From OCS Custody                                                                                                                                                                                                                                                                                   

                                                                      And Dismissing The Case.                                                                                            



                                                                      Under the unique circumstances of this case, I would find that Clementine                                                                                                                                                                                                                                                           



was entitled to final probable cause findings regarding OCS's allegations against her                                                                                                                                                                                                                                                                                                                                                                



before the superior court released custody to Jermaine and dismissed the case.                                                                                                                                                                                                                                                                                                                   



                                                                       The court concludes that the superior court did not make final probable                                                                                                                                                                                                                                                                         



 cause findings because Magistrate Judge Adams's and Judge Schally's findings were                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                             1  and because the superior court dismissed the case.  

preliminary probable cause findings                                                                                                                                                                                                                                                                                                                                                                                                          



                                    1                                 Under   AS   47.10.142(d),   "[a]t   the   first   hearing   under   this  subsection,  



regardless of whether a continuance is granted, the court shall make a                                                                                                                                                                                                                                                                                                                                preliminary  

determination of whether continued placement in the home of the child's parent or                                                                                                                                                                                                                                                                                                                                                                         

guardian would be contrary to the welfare of the child." The court typically enters these                                                                                                                                                                                                                                                                                                                                                   

preliminary findings while a parent is waiting to obtain counsel or when the appointed                                                                                                                                                                                                                                                                                                                            

 counsel needs further time to prepare.                                                                                                                                                                    But Alaska Statute 47.10.142(e) describes that                                                                                                                                                                                          

"[w]hen   the   temporary   custody   hearing   is   held,   the   court   shall   determine   whether  

probable   cause   exists   for   believing   the   child   to   be   a   child   in   need   of   aid."   

Alaska Statute 47.10.142(e) refers to final probable cause findings, which are different                                                                                                                                                                                                                                                                                                                                 

 from   preliminary   findings.     Preliminary   probable   cause   findings   are   just   that   -  

preliminary - and permit the court to essentially continue further proceedings until the                                                                                                                                                                                                                                                                                                                                                               

parties are ready to participate in the temporary custody hearing where the issue of                                                                                                                                                                                                                                                                                                                                                                      

probable cause is determined. Even then, all that is being determined is probable cause,                                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                                                                                          -17-	                                                                                                                                                                                                               7109
  


----------------------- Page 18-----------------------

The court then explains:                                                   



                                                                   CINA Rule 10(c)(1) states                                                                                                                    that if the court does not find                                                                                                         

                                                                   probable cause, it "shall order the child returned to the home                                                                                                                                                                                                                  

                                                                   and   dismiss   the   petition,"   and   a   related   requirement   in  

                                                                   AS 47.10.142(e) states that in the absence of a probable cause                                                                                                                                                                                                                  

                                                                   finding,   the   court   must   "order   the   child   returned   to   the  

                                                                   custody of the child's parents."                                                                                                                                    That is precisely what the                                                                                             

                                                                    superior court did in this case                                                                                              



by releasing Jasmine to Jermaine.                                                                                                                                                 I disagree with that conclusion.                                                                                                                                              First, releasing   



custody   to   Jermaine   effectively   removed   Jasmine   from   Clementine's   care   without  



 adequate,   final   probable   cause   findings   against   Clementine.     Final   probable   cause  



 findings would have determined, as a threshold matter, whether Jasmine should have                                                                                                                                                                                                                                                                                                                                      



been removed from Clementine's home in the first place.                                                                                                                                                                                                          



                                                                    Second, even if the superior court had made final probable cause findings                                                                                                                                                                                                                                                           



 supporting  the    dismissal    of    the    case    against    Clementine,    returning    Jasmine    to  



 Clementine's home - the only home she has ever known - and "returning" her to the                                                                                                                                                                                                                                                                                                                                                



home of a parent who has never acted as her caregiver are drastically different outcomes.                                                                                                                                                                                                                                                                                                                                                           



I do not believe that AS 47.10.142(e) and CINA Rule 10(c)(1) should be read to bring                                                                                                                                                                                                                                                                                                                                   



 about an outcome that "returns" Jasmine to a place she has never called home and to a                                                                                                                                                                                                                                                                                                                                                      



parent who has never served as her caregiver.                                                                                                                                                                                                  What actually happened was that the                                                                                                                                               



 State - that is, both OCS and the court - effected a change in physical custody without                                                                                                                                                                                                                                                                                                                   



giving the formal custodial parent an opportunity to be fully and fairly heard. Therefore,                                                                                                                                                                                                                                                                                                  



I would hold that Clementine was entitled to final probable cause findings regarding the                                                                                                                                                                                                                                                                                                                                          



                                  1(...continued)  



                                                                                                                                                                                                                                                                                                        

 a far different (and lesser) quantum of proof than a formal adjudication that a parent's  

                                                                                                                                                                                                                 

conduct has made her children in need of aid.  



                                                                                                                                                                                                               -18-                                                                                                                                                                                                       7109
  


----------------------- Page 19-----------------------

                                                                                                                                  

allegations against her; if those final probable cause findings supported the dismissal of  



                                                                                                                                  

the case against Clementine, the superior court should have ordered Jasmine returned to  



                                                                                            

Clementine's home - the same home from which she was removed.  



                                                                                                                                 

                    Alaska Statutes 47.05.060 and 47.10.086 support this interpretation.  In  



                                                                                                                           

AS 47.05.060, the legislature states that "[t]he purpose of this [CINA] title as it relates  



                                                                                                                              

to children is to secure for each child the care and guidance, preferably in the child's own  



                                                                                                                               

home, that will serve the moral, emotional, mental, and physical welfare of the child and  



                                                                                                                                  

the best interests of the community."  The legislature's preference to keep the child in  



                                                                                                                               

"the child's own home" suggests that the term "home" as used in AS 47.10.142(e) and  



                                                                                                                              

CINA Rule 10(c)(1) is meant to refer to the child's original living situation, rather than  



                                                                                                                             

a  broader  definition  that  includes  an  absent,  previously  unengaged  parent.                                          And  



                                                                                                                            

AS 47.10.086 requires that if a child is found to be a child in need of aid, OCS "shall  



                                                                                                                                

make timely, reasonable efforts to provide family support services to the child and to the  



                                                                                                                                  

parents or guardian of the child that are designed to prevent out-of-home placement of  



                                                                                                                                  

the child or to enable the safe return of the child to the family home."  The existence of  



                                                                                                                       

this provision suggests that the legislature intended CINA rules and statutes to promote,  



                                                                                                                        

if possible, the reinstatement of the child's original living situation when OCS becomes  



                                                                                                                                 

involved in a child's custody.  In other words, OCS must make reasonable efforts to  



                                                                                                                          

reunite the child with the original custodial parent. Here, OCS made no efforts to reunite  



                                                                                                                           

Jasmine with Clementine, as the superior court prematurely dismissed the case before  



                                                                                                        

any further proceedings could occur with regards to the emergency petition.  



                                                                                                                             

                    For  these  reasons,  I  would  hold  that  Clementine  was  entitled  to  final  



                                                                                                                             

probable cause proceedings regarding the allegations against her, and if those final  



                                                                                                                                

probable cause findings were to support the dismissal of the case against Clementine, the  



                                                                                                                         

superior court should return Jasmine to Clementine's care. If the probable cause findings  



                                                                                                                          

supported removal, then OCS should have been required to proceed in the usual fashion  



                                                               -19-                                                         7109
  


----------------------- Page 20-----------------------

to provide Clementine with a case plan and services aimed at allowing Clementine to                                                                                                                                                                                                                                                                                                                                     



remedy her conduct such that she could reunify with her child.                                                                                                                                                                                                                     



                                 B.	                             Clementine Was Entitled To An Evidentiary Hearing Regarding Her                                                                                                                                                                                                                                                                              

                                                                 Allegations Against Jermaine.                                                                         



                                                                 The court concludes that even under CINA Rules 19.1(b) or (d) - the                                                                                                                                                                                                                                                                              



CINA rules that Clementine wished to apply to her opposition - Clementine was not  



 entitled to an evidentiary hearing regarding her allegations against Jermaine.                                                                                                                                                                                                                                                                                                  Although  



I   would   preliminarily   hold   that   the   superior   court   clearly   erred   in   finding   that   no  



 statement of facts supported Clementine's allegations under CINA Rule 6(b)(2), I also                                                                                                                                                                                                                                                                                                                   



disagree   with   this   court's   conclusion   that   CINA   Rule   19.1(b)   does   not  apply  to  



Clementine's opposition.   



                                                                 First,   under   CINA   Rule   6(b)(2),   Clementine's  opposition   "must   be  



 supported by a statement of facts sufficient to show that the child is a child in need of aid                                                                                                                                                                                                                                                                                                                      



and is in a condition which requires the immediate assumption of custody." Clementine                                                                                                                                                                                                                                                                                                                                                  



met her prima facie burden, asking for an evidentiary hearing only to further substantiate                                                                                                                                                                                                                                                                               



the allegations for which she already offered proof.                                                                                                                                                                                                             In her opposition to Jermaine's                                                                            



motion,   Clementine   argued   that  Jasmine   was   a   child   in   need   of   aid   as   a   result   of  



Jermaine's abandonment, and her attorney's affidavit confirmed that he believed this                                                                                                                                                                                                                                                                                                                            



argument had merit.                                                                                    While Jermaine apparently had no criminal or child protective                                                                                                                                                                                                            



 services history in either Minnesota or Alaska and his interactions with Jasmine were                                                                                                                                                                                                                                                                                                                   



preliminarily deemed "totally appropriate [and] caring," there was enough evidence in                                                                                                                                                                                                                                                                                                                                   



the   opposition   and   supporting   affidavit   to   substantiate   Clementine's   assertions   that  

                                                                                                                                                                                                                                                                           2            Jermaine had not paid child  

Jermaine abandoned Jasmine under AS 47.10.011(1).                                                                                                                                                                                                                                                                                                                                                                                      



                                2                                AS 47.10.011(1) states that the court may find a child to be a child in need                                                                                                                                                                                                                                                              



of aid if "a parent or guardian has abandoned the child as described in AS 47.10.013, and                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                                                                        -20-	                                                                                                                                                                                              7109
  


----------------------- Page 21-----------------------

support in three years, had never sought a civil custody order or other means to enforce                                                                                         



custody, and had extremely limited contact with Jasmine for the first six years of her life.                                                                                                      



Based on these allegations, supported by an affidavit, Jermaine appears to have "shown                                                                                          



a conscious disregard of parental responsibilities toward [Jasmine] by failing to provide                                                                                       



reasonable support, maintain regular contact, or provide                                                                   normal supervision," "has made                             



only minimal efforts to support and communicate with [Jasmine]," and/or has "failed for                                                                                                    



               2(...continued)  



                                                                                                                                                                                           

the other parent is absent or has committed conduct or created conditions that cause the  

                                                                                                                                                                                

child  to  be  a  child  in  need  of  aid  under  this  chapter."                                                                   The  abandonment  statute,  

                                                      

AS 47.10.013, explains that  



                                                                                                                                                       

                              [f]or          purposes                of       this         chapter,              the        court           may           find  

                                                                                                                   

                              abandonment of a child if a parent or guardian has shown a  

                                                                                                                                                            

                              conscious disregard of parental responsibilities toward the  

                                                                                                                                               

                              child  by  failing  to  provide  reasonable  support,  maintain  

                                                                                                                                         

                              regular contact, or provide normal supervision, considering  

                                                                                                                                    

                              the child's age and need for care by an adult.  Abandonment  

                                                                                                                                                             

                              of  a  child  also  includes  instances  when  the  parent  or  

                                                                                                                                                         

                              guardian, without justifiable cause, (1) left the child with  

                                                                                                                                                            

                              another person without provision for the child's support and  

                                                                                                                                                                

                              without  meaningful  communication  with  the  child  for  a  

                                                                                                                                                               

                              period of three months; (2) has made only minimal efforts to  

                                                                                                                                                                

                              support  and  communicate  with  the  child;  (3)  failed  for  a  

                                                                                                                            

                              period of at least six months to maintain regular visitation  

                                                                                                                                                               

                              with the child; (4) failed to participate in a suitable plan or  

                                                                                                                                                 

                              program designed to reunite the parent or guardian with the  

                                                                                                                                            

                              child; (5) left the child without affording means of identifying  

                                                                                                                                                     

                              the child and the child's parent or guardian; (6) was absent  

                                                                                                                                           

                              from the home for a period of time that created a substantial  

                                                                                                   

                              risk of serious harm to a child left in the home; (7) failed to  

                                                                                                                                                           

                              respond to notice of child protective proceedings; or (8) was  

                                                                                                                                                            

                              unwilling to provide  care, support, or supervision for the  

                              child.  



                                                                                            -21-                                                                                      7109
  


----------------------- Page 22-----------------------

                                                                                                                                                                                                                                                                                                                                                   3  

a period of at least six months to maintain regular visitation with [Jasmine]."                                                                                                                                                                                                                                                                         Therefore,  



because Clementine had asserted plausible prima facie                                                                                                                                                                                                                allegations supported by an                                                                                             



affidavit that Jermainehad abandoned Jasmine, thesuperior court clearly erred in finding                                                                                                                                                                                                                                                                                 



that there was no evidence showing that Jermaine's conduct caused Jasmine to be a child                                                                                                                                                                                                                                                                                       



in   need   of   aid.     The   superior  court   -   analyzing   Clementine's   opposition   under  



CINA Rule 6(b) - should instead have found that Clementine sufficiently substantiated                                                                                                                                                                                                                                                         



her allegations of abandonment and, at the very least, should have permitted further                                                                                                                                                                                                                                                                                     



discovery and an evidentiary hearing on that issue.                                                                                                                                                          



                                                             Second,   as   this court notes,                                                                                                     Clementine argues that the superior                                                                                                                                           court  



 should have treated her opposition to Jermaine's motion as a petition                                                                                                                                                                                                                                                                          for a review             



hearing   under   CINA   Rule   19.1(b)   or   (d)   rather   than   CINA   Rule   6(b).     CINA  



Rule 19.1(b) states that                                                                                    



                                                              [a]t any                                 time in a proceeding, a party who is opposed to                                                                                                                                                                            

                                                              [OCS] transferring a child from one placement to another                                                                                                                                                                                   

                                                             may   move   the   court   for   a   review   hearing   at   which  the  

                                                             requesting   party    must    prove    by    clear    and    convincing  

                                                             evidence   that   the   transfer   would   be   contrary   to   the   best  

                                                             interests of the child.                                              



I believe that CINA Rule 19.1(b) applies to Clementine's opposition and would entitle                                                                                                                                                                                                                                                                                        



her to a hearing regarding her argument against transferring placement of Jasmine from                                                                                                                                                                                                                                                                                             



Clementine to Jermaine.                                           



                                                             This   court   dismisses   Clementine's   argument   that   Rule   19.1(b)   applies  



because "OCS did not transfer Jasmine from one placement to another; OCS released                                                                                                                                                                                                                                                                                  



Jasmine   from   custody  when   the   court   dismissed   the   case"   and   because   the   term  



" 'placement' is used to refer to the home of a child who remains in OCS custody."                                                                                                                                                                                                                                                                                                    The  



court   therefore   concludes   that   CINA   Rule   19.1(b)   did   not   apply   to   Clementine's  



                              3  

                                                                             

                                                             AS 47.10.013(a).  



                                                                                                                                                                                            -22-                                                                                                                                                                                                         7109  


----------------------- Page 23-----------------------

 opposition and that Clementine was not entitled to a hearing on her allegations against                                                                                                                                                                                                              



 Jermaine.  



                                                  But I do not find the court's support for these arguments convincing.                                                                                                                                                                                         The  



 court's argument that OCS did not transfer Jasmine from one placement to another                                                                                                                                                                                                                  



 because OCS released Jasmine from custody and dismissed the case is contrary to any                                                                                                                                                                                    



 reasonable common sense understanding ofwhat actually                                                                                                                                                            happened and raises formover                                                                  



  substance.    OCS cooperated with Jermaine to effectuate a change in Jasmine's living                                                                                                                                                                                                                   



  situation,   moving  her   from   Clementine's   care   and   physical   custody   to   Jermaine's  



 physical custody.                                                   Therefore, OCS in effect transferred Jasmine from one custodial                                                                                                                                                          



 placement with Clementine to another with Jermaine, and the superior court should                                                                                                                                                                                                                    



 therefore have analyzed Clementine's opposition under CINA Rule 19.1(b).                                                                                                                                                                                    



                                                  With   regard   to   the   term   "placement,"   and   contrary   to   this  court's  



 explanation, the phrase is not always "used to refer to the home of a child who remains                                                                                                                                                                                                           



 in OCS custody."                                                   For instance, other CINA rules refer to adoptive or other permanent                                                                                                                                                  



 living arrangements as "placements," and, in these instances, a child does not remain in                                                                                                                                                                                                                                

                                                                                                                                        4      In A.B. v. State, Department of Health & Social  

 OCS custody after such placements.                                                                                                                                                                                                                                                                      



 Services, we noted that AS 47.10.088(a) "provides that a court may terminate parental  

                                                                                                                                                                                                                                                             



 rights 'for the purposes of freeing a child for adoption or other permanent placement,' "  

                                                                                                                                                                                                                                                                                                                            



 and we remanded the case for the superior court to explain whether termination of the  

                                                                                                                                                                                                                                                                                                                     



 mother's rights was appropriate given the State's efforts to unite the child with her  

                                                                                                                                                                                                                                                                                                                   



                          4                       See, e.g.                       , CINA Rule 17.2(e) (requiring courts to make written findings                                                                                                                                                 



 after a permanency hearing on "whether the child should be                                                                                                                                                                placed  for adoption or legal                                                       

 guardianship"   or   "whether   there   is   compelling   reason   that   the   most   appropriate  

placement  for the child is in another planned, permanent living arrangement" (emphasis                                                                                                                                                                                                    

 added)).  



                                                                                                                                                          -23-                                                                                                                                                7109
  


----------------------- Page 24-----------------------

                                  5  

biological father.                    In so doing we noted that "[p]lacement with a non-terminated parent                                                          



could    be    an    'other    permanent    placement'    under    AS    47.10.088(a),    and,    under  



AS47.10.088(h),                    terminating thenon-custodial parent's rights                                             would not affect therights               



of the custodial parent.                         But the termination must be made 'for purposes of freeing' a                                                                

                                                                             6   We reiterated this point in a later unpublished  

child for such permanent placement."                                                                                                                   

memorandum opinion.7   In other cases we have used "placement" to refer to returning  

                                                                                                                                                             

the child to a biological parent.8                                  There is no compelling reason to support the court's  

                                                                                                                                                                  



favored reading of the term "placement"; to conclude that OCS did not effect a change  

                                                                                                                                                                 



in placement of the child ignores any common sense understanding of the term.  Again,  

                                                                                                                                                                  



I would construe the rule to permit Clementine to have a hearing at which she might  

                                                                                                                                                                    



discover or adduce further evidence that Jasmine's physical placement with Jermaine is  

                                                                                                                                                                            



contrary to Jasmine's best interests.  

                                                       



              5            7 P.3d 946, 954-55 (Alaska 2000).                         



              6            Id.  at 954 n.24.     



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

                                                                                                                                                         

Servs., 2011 WL 6004329, at *7 (Alaska 2011) ("We have stated that '[p]lacement with  

                                                                                                                                                                       

a      non-terminated                     parent           could           be       an       "other           permanent                 placement"                  under  

AS 47.10.088(a).' " (alteration in original) (quoting A.B. , 7 P.3d at 954 n.24)).  

                                                                                                                                                  



              8            See J.S. v. State, 50 P.3d 388, 395 (Alaska 2002) ("The superior court's  

                                                                                                                                                                 

finding beyond a reasonable doubt that placement with [the father] would result in  

                                                                                                                                                              

serious emotional damage to the boys was therefore not clearly erroneous."); Denise L.  

                                                                                                                                                                            

v. State, Dep't of Health &Social Servs., Office of Children's Servs., 2014 WL 1168868,  

                                                                                                                                                             

at *2, *4 (Alaska 2014) (explaining that "[i]n April 2013, at the request of OCS, the trial  

                                                                                                                                                                        

court released Isis from OCS custody and placed her with her father" and that "[t]he trial  

                                                                                                                                                                        

court found that continued placement in [the mother's] home would be contrary to the  

                                                                                                                                                                          

welfare of the children 'based on the history of [the] whole case' " (first and third  

                                                                                                                                                                     

alterations in original)).  

                            



                                                                                    -24-                                                                             7109
  


----------------------- Page 25-----------------------

                                                                                                               

          C.        The Superior Court Violated Clementine's Due Process Rights.  



                                                                                                                 

                    I wouldalsoholdthat thesuperior court violated Clementine's fundamental  



                                                                                                                 

liberty interest in parenting Jasmine without due process by dismissing the proceedings  



                                                                                                                  

against Clementine without allowing her to meaningfully address OCS's emergency  



                                                                                                                   

petition and by releasing Jasmine to Jermaine without allowing Clementine to participate  



                                                                                                                            

in an evidentiary hearing to determine whether Jasmine is a child in need of aid with  



                                                                                                                  

respect to both her conduct and Jermaine's conduct.   Clementine had a reasonable  



                                                                                                                                

expectation that she would be able to address OCS's concerns about her conduct and to  



                                                                                                                           

present evidence to the court regarding Jermaine's conduct.  Instead, the superior court  



                                                                                                                            

never completed OCS's proceedings against her, and it ignored her plausible prima facie  



                                                                                                                     

allegations,  supported  by  Camozzi's  affidavit,  that  Jermaine  abandoned  Jasmine.  



                                                                                                                            

                    OCS's decision to dismiss the case affected Clementine's rights to raise  



                                                                                                                         

Jasmine free from state interference and to meaningfully be heard regarding both OCS's  



                                                                                                                        

allegations against her and her allegations against Jermaine.  Contrary to this court's  



                                                                                                                      

conclusion,  the  superior  court's  premature  dismissal  of  the  case  did  not  "grant[]  



                                                                                                                             

Clementine all the relief to which she would be entitled even if [the superior court] had  



                                                                                                                            

made specific and final findings on the allegations in the emergency petition."   The  



                                                                                                                          

superior court's dismissal and release of custody to Jermaine radically altered the status  



                                                                                                                         

quo by changing the family's physical custody arrangements; Jasmine was sent to live  



                                                                                                                                  

with Jermaine in Minnesota rather than continuing to live with Clementine in Alaska.  



II.       CONCLUSION  



                    For the reasons detailed above, I dissent from this court's affirmance of the  

                                                                                                                              



dismissal of the CINA case.  

                                    



                                                              -25-                                                        7109
  

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