Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Health & Social Services, Office of Children's Services v. Michelle P. (2/9/2018) sp-7221

State, Dept. of Health & Social Services, Office of Children's Services v. Michelle P. (2/9/2018) sp-7221

          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  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

STATE  OF  ALASKA,  DEPARTMENT                                   )

OF  HEALTH  &  SOCIAL  SERVICES,                                )     Supreme  Court  Nos.  S-16574/16594


                                                                 )    Superior  Court  No.  4BE-14-00081  CN  

                              Appellant  and                    )  

                              Cross-Appellee,                   )                         

                                                                      O P I N I O N  



          v.                                                     )                                         

                                                                      No. 7221 - February 9, 2018  



MICHELLE P.,                                                     )  



                              Appellee,                          )  


          and                                                    )  



MORRIS L.,                                                       )  



                              Appellee and                       )  

                              Cross-Appellant.                   )  




                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                    Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  



                    Appearances:             Laura  Fox,  Assistant  Attorney  General,  


                    Anchorage,and JahnaLindemuth,Attorney General,Juneau,  


                    for Appellant and Cross-Appellee. William T. Montgomery,  


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


                    Public  Advocate,  Anchorage,  for  Appellees  and  Cross- 


                    Appellant.  No appearance by Native Village of Tuluksak.  


                    No appearance by Guardian Ad Litem.  

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

                               Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,                                                               

                               and Carney, Justices.         

                               CARNEY, Justice.   

 I.             INTRODUCTION  

                               A  court  must  have  jurisdiction  to  rule  on  a  case.                                                                   The  superior  court  


 dismissed a Child in Need of Aid (CINA) petition because it believed it no longer had  


jurisdiction over the case after the disposition order granting the Office of Children's  


 Services (OCS) custody of the child had expired. We hold that jurisdiction over a CINA  


 case is distinct fromthe grant of custody or supervision to OCS in a disposition order and  


 that it derives from the child's status as a child in need of aid.  We therefore reverse the  


 superior court's order dismissing the petition and remand for further proceedings.  


                               Before dismissing the CINA petition, the superior court entered removal  


 findings based only on a motion filed by OCS. This was error because the removal order  


was not supported by sufficient evidence and did not comply with the requirements of  


 the Indian Child Welfare Act (ICWA).1   We therefore reverse the removal findings and  


remand for further proceedings consistent with this opinion.  


                1              25 U.S.C.  1901-1963 (2012).                                                 ICWA establishes "minimum Federal                                        

 standards for the removal of Indian children from their families and [for] the placement                                                                                        

 of such children in foster or adoptive homes which will reflect the unique values of                                                                                                               

 Indian culture."                      Id.   1902.                

                                                                                                 -2-                                                                                         7221

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


            A.         Emergency Petition And Temporary Custody Order                                         

                       Michelle P. and Morris L. are the parents of Natalie, who was born in April                                            

          2                                                                                 3  


             Natalie is an Indian child as defined by ICWA.                                    On October 31, 2014, OCS filed  


an  emergency  petition  to  adjudicate  Natalie  a  child  in  need  of  aid  and  to  grant  it  


temporary  custody.   The petition stated that OCS had taken emergency custody of  


Natalie  the  day  before  and  alleged  that  Natalie  was  a  child  in  need  of  aid  under  


AS 47.10.011(2) (incarceration), (6) (physical harm), (9) (neglect), and (10) (substance  




                       After a temporary custody hearing a magistrate judge found probable cause  


to believe Natalie faced an imminent risk of physical damage or harm if returned to  


Michelle.   Morris was incarcerated at Palmer Correctional Facility at the time.   The  


magistrate judge further found that Natalie had been neglected, and that OCS had made  


reasonable  and  active  efforts  to  prevent  the  breakup  of  the  Indian  family.                                                            An  


adjudication hearing was scheduled for March 2015.  The superior court adopted the  


magistrate judge's findings in a December 4 order. Natalie's tribe entered its appearance  



after the temporary custody hearing. 

            2          Pseudonyms are used to protect the parties' privacy.                                         



                       25 U.S.C.  1903(4) defines "Indian child" as any unmarried person who  


is  under  age  18  and  is  either  (a)  a  member  of  an  Indian  tribe  or  (b)  eligible  for  


membership in an Indian tribe and the biological child of a member of an Indian tribe.  


Natalie is a child under 18 and is either a member of or eligible for membership in the  


Native Village of Tuluksak.  

            4          A representative of the tribe filed a notice of appearance in December 2014  


and continued to participate in the lengthy proceedings.   On May 2, 2016 an attorney  


for the tribe entered an appearance.  


                                                                         -3-                                                                  7221

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

          B.	       The   Parents   And   OCS   Stipulate   To   Adjudication   And   OCS  



                    At the  hearing in March 2015 Michelle stipulated to adjudication and  


disposition (March 2015 stipulation).  The stipulation provided that Natalie was a child  


in  need  of  aid  due  to  neglect  and  that  OCS  would  retain  custody  until  Michelle  


completed treatment at a local substance abuse treatment center.   On April 17, her  


projected completion date, OCS would return Natalie to Michelle's physical custody but  


would have supervision of Natalie for one year.  Michelle confirmed that this was her  


understanding  of  the  agreement.                   Morris,  who  was  still  incarcerated,  appeared  by  


telephone before a magistrate judge two days later and agreed to the stipulation.   A  


permanency hearing was scheduled for October 1, 2015.  


          C.	       Natalie'sSecondRemoval FromHerParents'HomeAndModification  


                    Of The Disposition From OCS Supervision To OCS Custody  


                    At the October 1 hearing OCS notified the court that Natalie had been  


successfully returned to Michelle and that it intended to file a motion to dismiss by the  


following Monday.  The motion was never filed.  Instead, a month later OCS filed a  


"Motionfor Removal Findings" pursuant to CINARule17(d)(2), stating that Nataliehad  


been removed from her parents' home on October 3 because Michelle had relapsed and  


Morris had been arrested for domestic violence. OCS asked that the court make findings  


that the removal from October 3, 2015 onward was warranted because:  (1) continued  


placement in the home was contrary to Natalie's welfare; (2) placement with her parents  


would likely result in serious physical or emotional damage to Natalie; (3) there was  


good cause to deviate from ICWA's foster care placement preferences; and (4) OCS had  


made active and reasonable efforts to prevent the breakup of the Indian family.  OCS's  


motion was supported by an affidavit from a social worker.   No party responded to  


OCS's motion.  


                                                              -4-	                                                       7221

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

                                                                  On   November   17   the   court   entered   findings   authorizing   removal   as  

proposed by OCS (November 2015 removal order).  The order included a finding that                                                                                                                                                                                                           

there was "clear and convincing evidence, including the testimony of qualified expert                                                                                                                                                                                                                                                                                                                     

witnesses, that the custody of the child by the parents [was] likely to result in serious                                                                                                                                                                                                                                                                                                             

 emotional or physical damage to the child[]."                                                                                                                                                                                     

                                                                  On February 29 Morris filed a "Motion to Return Child and/or Request for                                                                                                                                                                                                                                                                                  

Hearing on the Return of the Child."                                                                                                                                                      He argued that Natalie must be returned to her                                                                                                                     

parents because the November 2015 removal order was unlawful and that the only way                                                                                                                                                                                                                                                                                                                                   

 for OCS to assume custody of Natalie was by requesting a temporary custody hearing                                                                                                                                                                                                                 

or   removal   hearing   under   CINA   Rule   10.     Alternatively,   he   requested   a   CINA  

Rule   19.1(c)   review   hearing,   asserting   that   his   recent   release   from   incarceration  

constituted a change in circumstances.                                                                                                                                                         Based on Morris's motion, the court eventually                                                                                                                                         

 scheduled a CINA Rule 19.1(c) review hearing for April 22.                                                                                                                                                                                                                                                    

                                 D.                               Litigation Of Morris's Motion To Dismiss                                                                                                                                                                                       

                                                                  On March 25 OCS filed a petition to extend its custody of Natalie for one                                                                                                                                                                                                                                                                            

year,   pursuant   to   AS   47.10.080(c)(1)(A).     One   day   before   the   scheduled   CINA  

Rule 19.1(c) review hearing Morris filed an expedited motion to dismiss. He argued that                                                                                                                                                                                                                                                                                                                                 

the existing disposition order had expired on March 19, 2016, and OCS's petition to                                                                                                                                                                                                                                                                                                                                            

 extend custody had not been filed until March 25. Morris argued that the court no longer                                                                                                                                                                                                                                                                                                                  


had jurisdiction over Natalie because the petition to extend custody was untimely.                                                                                                                                                                                                                                                                                                                                                             

OCS's opposition argued that the court's November 2015 removal order voided the  


March 2015 stipulation's expiration date becausetheNovember 2015 removal order was  


                                 5                                CINA   Rule   19.2(a)   provides   in   pertinent   part:     "(a)   Petition.     The  

Department or the child's guardian ad litem may file a petition for an extension of the                                                                                                                                                                                                                                                                                                                                   

commitment to custody or supervision. The petition must be filed at least [30] days prior                                                                                                                                                                                                                                                                                                                         

to the expiration of the existing disposition order."                                                                                                                                                                 

                                                                                                                                                                                                               -5-                                                                                                                                                                                                 7221

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

actually a temporary custody order of an indefinite duration.                                                                                                                            Natalie's tribe joined                         

Morris's motion                                     to  dismiss.     In   addition   to   restating   or   otherwise joining                                                                                                     Morris's  

arguments, the tribe argued that OCS's "failure to strictly comply with the requirements                                                                                                                             

of [CINA Rule] 19.2(a) mean[t] that the untimely-filed petition for an extension of                                                                                                                                                                 

custody [was] void and unenforceable."                                                                                   On May 19 the court denied the motion to                                                                                    

dismiss.    The court reasoned that, due to Morris's requested continuances of earlier                                                                                                                                                 

hearings and the continued litigation regarding removal, the issue of custody was tolled.                                                                                                                                                                     

                                       On November 22 the court issued a notice that it was reconsidering, sua                                                                                                                                   

sponte, its order denying Morris's motion to dismiss, and it invited the parties to file                                                                                                                                                         

briefs.   On January 3, 2017, the superior court dismissed the case.                                                                                                                           The court stated that                            

it was reversing "its order of June 14, 2016.                                                                                  [6]      [OCS] did not file pursuant to the rule a  


petition prior to 30 days before its expiration of March 19, 2016."  The court further  


wrote, "[f]or this reason alone this case is dismissed and the child is ordered to be  


released from OCS custody."  


                   F.	                 Second Emergency Petition And Appeal Of Superior Court's Order  


                                       Dismissing The Case  


                                       The next day OCS filed a new emergency petition to adjudicate Natalie a  


child in need of aid,7  


                                                              stating in pertinent part:  


                                       On January 3, 2017, the Court entered an order of dismissal  


                                       after it sua sponte reconsidered a previously entered order  


                                       denying motion to dismiss filed by the father.  At the time of  

                   6                   This appears to have been an error as the court entered the order denying                                                                                                  

the motion to dismiss on May 19, 2016.                                                             

                   7                   OCS asserted that Natalie was a child in need of aid under AS 47.10.011(1)  


(abandonment),  (6)  (physical  harm),  (8)  (mental  injury),  (9)  (neglect),  and  (10)  


(substance abuse).  


                                                                                                                          -6-	                                                                                                               7221

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

                                                                the court's order [Natalie] was placed in licensed foster care                                                                                                                                                                                                         

                                                                 . . . in [a village].                                                           The parents reside in [another village]. . . .                                                                                                                                                  

                                                                 [Natalie] faces imminent risk of physical harm or damage as                                                                                                                                                                                                                     

                                                                 a   result   of   the   Court's   order,   which   releases   a   .   .   .   child  

                                                                without any arrangements for an adult caregiver to provide                                                                                                                                                                                            

                                                                 for her.                             

                                                                At the emergency hearing on January 5 OCS argued that the court's order                                                                                                                                                                                                                                                          

 granting   Morris's   motion   to   dismiss   created   the   emergency   and   that   there   was   no  

 requirement that "the harm has to have been perpetrated, necessarily, specifically by the                                                                                                                                                                                                                                                                                                                  

 parent."   The court disagreed and dismissed the newly filed emergency petition.                                                                                                                                                                                                                                                                                                                  The  

 court also explained that it had initially denied Morris's motion to dismiss because it                                                                                                                                                                                                                                                                                                                           

 believed the extension                                                                                          could  be retroactive,                                                                                    but it later                                             determined after                                                                    additional  

 briefing and review of the case law that it could not retroactively extend a custody order.                                                                                                                                                                                                                                                                                                                                   

 The court then stated that it was "very concerned for [Natalie] . . . . [and] very concerned                                                                                                                                                                                                                                                                            

 because from the history                                                                                               . . . the parents aren't doing their share."                                                                                                                                                          The court noted its                                                              

 concern for Natalie's safety and remarked that "[i]t is a terrible position to put a three-                                                                                                                                                                                                                                                                                             

 year-old child in."                                                                          But the court reasoned that it had no choice except to grant the                                                                                                                                                                                                                                            

 motion to dismiss, it said, "I can't fit it into the law, or I would.                                                                                                                                                                                                                                             I mean, that's just as                                                  

  simple as that folks, I don't think it's for the good of the child at all."                                                                                                                                                                                                                                                              

                                                                OCS appeals the superior court's order of dismissal and the parents have   

joined in opposing the appeal.                                                                                                                      Morris brings a cross-appeal of the court's November                                                                                                                                                               

 2015 removal order; Michelle has not joined his cross-appeal.                                                                                                                                                                                                                                           

 III.                            STANDARD OF REVIEW                                                                     

                                                                "[W]e exercise our independent judgment 'when interpreting a civil rule'                                                                                                                                                                                                                                                            

 or statute,"                                        8  and interpret statutes "according to reason, practicality, and common sense,  


                                 8                              Jennifer L. v. State, Dep't of Health &Soc. Servs., Office Children's Servs.,  



                                                                                                                                                                                                        -7-                                                                                                                                                                                                              7221  

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

taking into account the plain meaning and purpose of the law as well as the intent of the                                               



                  "We review questions regarding both subject matter jurisdiction and personal  


jurisdiction de novo, as '[j]urisdictional issues are questions of law subject to [our]  

                                          10  When we review an issue de novo it is our duty "to adopt  

independent judgment.' "                                                                                                      

the rule of law that is most persuasive in light of precedent, reason, and policy."11  


                      As for the issues raised in the cross-appeal, whether a superior court's  


factual findings comply with ICWA requirements is a question of law, which we review  


de novo.12          "[W]hether substantial evidence supports the court's conclusion that an  


Indian child is likely to be seriously harmed if returned to his parent is a mixed question  


of  fact  and  law."13             The  determination  that  a  child  will  suffer  serious  physical  or  


emotional harm if returned to a parent's custody is a factual finding that we review for  


           8          (...continued)  


357 P.3d 110, 113 (Alaska 2015) (quoting S.S.M. v. State, Dep't of Health &Soc. Servs.,  


Div. of Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000)).  

           9          Id. (quoting Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d. 1078,  


 1082 (Alaska 2011)); see also AS 01.10.040(a) ("Words and phrases shall be construed  


according to the rules of grammar and according to their common and approved usage.  


Technical words and phrases and those that have acquired a peculiar and appropriate  


meaning, whether by legislative definition or otherwise, shall be construed according to  


the peculiar and appropriate meaning.").  


           10         S.B. v. State, Dep't of Health &Soc. Servs., Div. of Family &Youth Servs.,  


61 P.3d 6, 10 (Alaska 2002) (first alteration in original) (quoting McCaffery v. Green,  


931 P.2d 407, 408 n.3 (Alaska 1997)).  


           11         Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  


           12         L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 949-50 (Alaska  




           13         E.A.  v. State, Div.  of Family  & Youth Servs., 46 P.3d 986, 989 (Alaska  


2002) (citing L.G ., 14 P.3d at 949-50).  


                                                                    -8-                                                             7221

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

clear    error,    but    whether    qualified    expert    testimony    sufficiently    supports    this  


determination is a legal question that we review de novo.                                                                                  

                                                                                                       "In CINA cases, we review  




issues that were not raised in the trial court for plain error." 

IV.	        DISCUSSION  


            A.	        It Was Error To Dismiss The Petition Based Upon A Perceived Lack  


                       of Jurisdiction.  


                        1.	        The superior court's jurisdiction over a child in need of aid is  


                                   distinct from the custody granted to OCS in a disposition order.  


                       This case concerns subject matter jurisdiction, which is "the legal authority  

                                                                                                  16   The parents argue that the  


of a court to hear and decide a particular type of case." 

 superior court was correct in concluding that it lacked jurisdiction, or authority, to extend  


the disposition order giving OCS custody of Natalie because the existing disposition  


order had expired prior to OCS filing a petition to extend the order.  OCS argues that,  


contrary to the superior court's conclusion in the January 2017 order dismissing the case,  


jurisdiction is tied to a child's status as a child in need of aid, not the existence of a  


disposition order granting OCS custody or supervision.  


                       We take this opportunity to expand on what we first recognized in Erica  


A.  v.  State,  Department  Of  Health  & Social  Services,  Division  of  Family  & Youth  


Services:  the superior court's authority in a CINA proceeding is not dependent upon an  


            14          Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's                                  

Servs., 254 P.3d 1095, 1103-04 (Alaska 2011).                                       

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


 309 P.3d 1262, 1267 (Alaska 2013).  


            16          Hawkins v. Attatayuk, 322 P.3d 891, 894 (Alaska 2014) (quoting Nw. Med.  


Imaging, Inc. v. State, Dep't of Revenue, 151 P.3d 434, 438 (Alaska 2006)).  


                                                                         -9-	                                                                7221

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


existing disposition order.                                  A disposition order confers authority to OCS over a child                                                       

who has been adjudicated a child in need of aid, but has no impact on a court's authority                                                                             

to hear and decide matters regarding the child.                                                       

                            The legislature has enacted a broad statutory framework governing CINA                                                                          

                           18     This framework includes a mandate that the statutes related to CINA  


proceedings are to  


                            be liberally construed to . . . achieve the end that a child  


                             coming within the jurisdiction of the court under this chapter  


                            may receive the care, guidance, treatment, and control that  


                            willpromotethechild's welfareandtheparents' participation  


                            in the upbringing of the child to the fullest extent consistent  


                            with the child's best interests.[19]  


It is with this stated legislative intent and construction that we apply and construe CINA  


statutes.   Our court rules reflect the same broad intent in CINA proceedings; CINA  


Rule 1(c) states that "[t]hese rules will be construed and applied to promote fairness,  


accurate fact-finding, the expeditious determination of children's matters, and the best  


interests of the child."20  


                            Alaska Statute 47.10.010 introduces Alaska's child protection framework.  


The superior court's authority or jurisdiction in a CINA proceeding is conferred by this  


statute:  "Proceedings relating to a child under 18 years of age residing or found in the  


state are governed by this chapter when the child is alleged to be or may be determined  


              17             66 P.3d 1, 9 (Alaska 2003).                  



                            See AS 47.10.010-.990.  



                            AS 47.10.005.  



                             CINA Rule 1(c).  

                                                                                        -10-                                                                                 7221

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

by the court to be a child in need of aid under AS 47.10.011."                                                 21  In another section the   


legislature has defined what it means to be a "child in need of aid."                                                                          

                                                                                                                                Alaska Statute  


47.10.990(4)  defines  a  "child  in  need  of  aid"  as  "a  child  found  to  be  within  the  

                                                                                                            23   From the plain meaning  



jurisdiction of the court under AS 47.10.010 and 47.10.011." 

 of both statutes, the superior court's jurisdiction or authority to hear and decide CINA  


proceedings thus depends upon either a finding that probable cause exists to believe the  


 child is a child in need of aid pursuant to AS 47.10.142 (the emergency custody statute),  


 or a finding that the child is a child in need of aid pursuant to AS 47.10.011 (the statute  


that outlines the 12 statutory conditions or circumstances that qualify a child to be  


 adjudicated a child in need of aid).24                               Neither statute links the court's jurisdiction or  


 authority to decide the matter to anything other than the child's status as a child in need  


 of aid.  


                        While the introductory statutes establish the basic framework of the court's  


 authority  over  CINA  proceedings,  the  breadth  of  that  authority  is  emphasized  in  


AS 47.10.100.  Alaska Statute 47.10.100(a) states the superior court "may at any time  


 stay execution, modify, set aside, revoke, or enlarge a judgment or order, or grant a new  


hearing, in the exercise of its power of protection over the child and for the child's best  


            21          AS 47.10.010(a);                see also       Alaska Const. art. IV,  1 ("The jurisdiction of                                 

 courts shall be prescribed by law.").                             

            22          AS  47.10.990(4).  

            23          Id.  


            24          AS  47.10.011,  .142.   The  4  emergency  custody  situations  contemplated  in  

AS   47.10.142   are   narrower   than   the   12   circumstances   for   which   a   child   can   be  

 adjudicated  as  a  "child  in  need  of  aid"  under  AS  47.10.011.   But  the  question  the  court  

considers  at  a  emergency  custody  and  temporary  placement  hearing  has  the  same  focus:   

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

AS  47.10.142(e).   

                                                                          -11-                                                                    7221

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

interests, for a period of time not to exceed two years or in any event extend past the day                                                     


the child reaches 19 years of age."                              

                       In addition to the powers granted the superior court by AS 47.10.100,  


AS 47.10.083 further clarifies that in a permanency hearing or in a hearing related to a  


request for extended commitment or extended supervision:  


                       [T]he court shall, in addition to the requirements of those  


                       provisions  [governing  those  types  of  hearings]  and  the  


                       requirements  of  court  rules,  determine  whether  a  child  


                       continues to be a child in need of aid at the time of the review  


                       or  hearing.           The  court  may  not  continue  or  extend  state  


                       custody or supervision of the child unless the court finds that  


                       the child continues to be a child in need of aid . . . .[26]  


Thus,  AS  47.10.083  empowers  the  superior  court  to  extend  commitment  and  


supervision - i.e. disposition - orders, but the court must find that the child continues  


to be a child in need of aid.27   Alaska Statute 47.10.083 specifies no limits to the superior  


court's jurisdiction in a CINA proceeding.  


                       Thisreviewofthestatutory framework makes clear that thesuperior court's  


authority in a CINA proceeding is derived from the child's adjudicated status as a child  


in  need  of  aid  and  not  from  the  existence  of  a  disposition  order.28                                                The  parents'  


interpretation of the statutes and the superior court's order in this case would require us  


            25         AS  47.10.100(a).   

            26         AS  47.10.083.   

            27         Id.  

            28         See   O.R.  &   C.K.  v.  State,  Dep't  of  Health  &  Soc. Servs.,  932  P.2d   1303,  

 1307  (Alaska   1997)  ("To  terminate  parental  rights  under  AS  47.10.080(c)(3),  a  court  

must  first  establish  jurisdiction  over  the  child  by  determining  that  the  child  is  a  'child  in  

need  of  aid'  (CINA)  under  AS  47.10.010(a)(2)."  (footnotes  omitted)).  

                                                                       -12-                                                                  7221

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


to graft onto the statutes a jurisdictional limit that does not exist.                                                                                        Such a reading would                 

be inconsistent not only with the statutory text but also with the rules of construction for                                                                                                               

CINA proceedings, as it would require the superior court to ignore the child's best                                                                                                                    


interests, as was seemingly done in this case.                                                                    

                                Our decision in Erica A. comports with this interpretation of the statutory  


framework. The child in Erica A. had been committed to OCS's custody for two years.31  


The disposition order expired on the first day of a termination trial.32                                                                                                     Approximately  


three weeks after the disposition order expired, OCS filed an emergency petition to  


adjudicate the child as a child in need of aid.33   Five days after OCS filed the emergency  


petition, the superior court entered an order renewing OCS's custody of the child based  


on the renewed finding that the child was a child in need of aid.34                                                                                             After the emergency  


petition was filed, but before the court entered its renewed order, the mother signed a  


power of attorney purporting to give the child's grandmother authority over the child's  


                                          35   The mother argued that her attempted transfer of the child's care and  

care and custody.                                                                                                                                                                                         


custody should be respected because, when she signed it, the superior court lacked  


                29              See Alaskans for a Common Language, Inc. v. Kritz                                                                                , 170 P.3d 183, 192                    

(Alaska 2007) ("[W]e may not read into a statute that which is not there . . . .").                                                                                                   

                30              AS  47.10.005(a).   

                31               66  P.3d   1,  9  (2003).  

                32              Id.    

                33              Id.   

                34              Id.   

                35              Id.   

                                                                                                    -13-                                                                                              7221

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


jurisdiction over the child.                            On appeal we held, in relevant part, that "[n]othing in the                                               

 statutory grant of authority preclude[d] the extension from being implemented after the                                                                          

 initial two-year commitment ha[d] technically expired.                                                    Erica's jurisdictional argument            


thus lacks merit."                     

                          Morris  and  Michelle  argue  that  we ruled  in  Erica  A.  "that  nothing  in  


AS 47.10.080 prevented the [superior] court from extending [the disposition order] after  


 it expired because the trial court reestablished jurisdiction over the child based on the  


newly  filed  petition."                       But  the  parents'  argument  finds  no  support  in  our  opinion.  


Nothing in the relevant portion of Erica A. indicates that the superior court's renewed  


 finding that the child was a child in need of aid "reestablished" the court's jurisdiction  


 over  the child; our  ruling  implicitly  found  that the superior  court's jurisdiction, or  



 authority over the child, was never lost.                                         


                          In addition to the mistaken conclusion about lack of jurisdiction, it was  


 error for the superior court to simply order Natalie's release back to her parents without  


 considering her safety or best interests. Under AS 47.10.083, even if the court finds that  


 a child is no longer a child in need of aid, the court may still "establish a specific  


timetable for gradual reunification of the family and termination of state custody or  


 supervision  if  the  court  makes  a  finding  that  immediate  reunification  would  be  


 detrimental to the child."39   The court's authority is not immediately lost even if the court  


 determines that a child is no longer a child in need of aid, also rebutting the argument  


             36           Id.   



                          Id .  






                          AS 47.10.083.  

                                                                                -14-                                                                          7221

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


that there must be a disposition order for the court to retain jurisdiction.                                                           And the court     


is required in all CINA proceedings to consider and act in the child's best interests.                                                                             

Both considerations further support our conclusion that the court's jurisdiction over a  


child who has been adjudicated in need of aid is not dependent upon a disposition order.  


Alaska Statute 47.10.083 required the court to act in Natalie's best interests and to  


consider whether immediately returning her to her parents' custody would have been  


detrimental, which its comments made clear it believed was the case.  


                         2.	         The remedy  for OCS's failure to timely file the petition for  


                                     extension is not dismissal.  


                         Counsel for Morris and Michelle emphasized at oral argument that if we  


concluded that a disposition order was not jurisdictional, our decision would render  


meaningless CINA Rule 19.2(a) which requires OCS to file a petition for extension of  


a disposition order at least 30 days prior to the expiration of the existing order.42  



                         To address this argument we must first review the role of our court rules  


in our legal system.  This court is empowered to promulgate court rules pursuant to the  



Alaska Constitution.                       Where a procedural provision in a court rule is inconsistent with  


an Alaska statute, the court rule generally supersedes the statute unless the statute was  

            40          Id.   

            41           AS  47.10.005;  see  also  CINA  Rule   1(c).  

            42           CINA  Rule   19.2(a).   

            43           Alaska  Const.  art.  IV,    15  ("The  supreme  court  shall  make  and  promulgate  

rules   governing  the   administration   of   all   courts.    It   shall  make   and  promulgate  rules  

governing practice and procedure in civil and criminal cases  in  all courts.  These rules  

may  be  changed  by  the  legislature  by  two-thirds  vote  of  the  members  elected  to  each  


                                                                            -15-	                                                                      7221

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


specifically enacted to change the rule.                                              The superior court's jurisdiction or authority                             

to decide a case is not procedural; its jurisdiction is substantive and requires legislative                                                                  



enactment.                  Our court rules cannot be construed to abrogate or otherwise diminish the  


court's jurisdiction or authority to hear and decide a case.                                                                      The requirement that a  


petition to extend custody must be filed 30 days before the expiration of an existing  


disposition order is found in the court rule; there is no statute that sets such a deadline.  


                            The court rules themselves allow time limits, in appropriate circumstances,  



to be enlarged.                    But the rules' deadlines are intended to be observed. In cases involving  


rights  as  fundamental  as  those  affected  by  CINA  proceedings,  we  emphasize  the  


importance of adhering to the time limits set by the applicable court rules. We encourage  


trial courts to rely on monetary sanctions as the preferred means of assuring compliance  



                                                                                                                                  And we discourage the  

with the CINA court rules pursuant to Alaska Civil Rule 95. 

              44            CINA   Rule   1(d)   ("These   rules   are   promulgated   pursuant   to   Alaska  

constitutional authority granting rulemaking power to the Alaska Supreme Court. To                                                                                           the  

extent that the rules are inconsistent with a procedural provision of any Alaska statute   

not enacted for the specific purpose of changing a rule, these rules supersede the statute                                                                            

to the extent of the inconsistency.").                                       

              45            Alaska Const. art. IV,  1 ("The jurisdiction of courts shall be prescribed  


by law."); State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 395-96 (Alaska 2007)  


("Article IV, section 15 of the Alaska Constitution authorizes this court to promulgate  


 'rules governing practice and procedure in civil and criminal cases in all courts.' . . . The  


constitution also commits the enactment of all substantive law - that is all law except  


rules of practice and procedure - to the legislature, acting by an affirmative vote of the  


majority  of  each  house.  Thus,  the  constitution  necessarily  requires  distinguishing  


between procedural and substantive law." (emphasis in original) (footnotes omitted)  


(quoting Alaska Const. art. IV,  15)).  


              46            Alaska R. Civ. P. 6(b); see also CINA Rule 1(e), (g).  


              47            Alaska R. Civ. P. 95; see In re Schmidt, 114 P.3d 816, 823 (Alaska 2005)  



                                                                                     -16-                                                                                7221

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

use of sanctions that might affect or prejudice the rights of a party: dismissal in this case                                           

ignored Natalie's best interests.48                                                                                     

                                                        The superior court's order dismissing the petition is  


vacated, and we remand for further proceedings.  


           B.	        It Was Error To Grant Removal Findings Based Solely On OCS's  


                      Unopposed Motion.  


                      1.	        It was plain error to grant removal findings absent any evidence  


                                 to support the findings.  


                      Morris has appealed the superior court's November 2015 removal order.  


Both parties extensively briefed whether Morris waived his right toappeal theNovember  


2015 removal order by failing to oppose the motion for removal findings before the  


superior court.  We need not address this argument because the superior court's order  


does not pass muster even under the plain error standard of review which we apply when  



an issue has not been preserved on appeal. 

                      25 U.S.C.  1912(e) states:  


                      No foster care placement may be ordered in such proceeding  


                      in the absence of a determination, supported by clear and  


                      convincing evidence, including testimony of qualified expert  


           47         (...continued)  


("We  have  expressed  a  preference  for  monetary  sanctions  over  litigation-ending  


sanctions."); Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1298 (Alaska 1985) ("We note  


that the law favors deciding cases on their merits.").  

           48         See Fox v. State, 685 P.2d 1267, 1270 (Alaska App. 1984). Alaska's court  


of appeals has "encouraged trial [courts] to rely on the use of monetary sanctions as the  


preferredmeansofassuringcompliancewith court rules and orders governing procedural  


matters." Id . Matters before the court of appeals raise fundamental liberty issues similar  


to those in CINA cases; the court of appeals has endorsed the same approach to enforce  


compliance with the criminal rules of procedure.  


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


309 P.3d 1262, 1267 (Alaska 2013).  


                                                                    -17-	                                                             7221

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

                     witnesses,   that   the   continued  custody   of   the   child   by   the  

                     parent   or   Indian   custodian   is   likely   to   result  in  serious  

                     emotional or physical damage to the child.                        [50]  

Natalie was in her parents' physical custody but under OCS supervision pursuant to  


AS 47.10.080(c)(2) when she was removed by OCS in October 2015. This removal falls  


under 25 U.S.C.  1912(e) because "any  action  removing an Indian child from its  


parent[s] . . . for temporary placement in a foster home . . . where the parent or Indian  


custodian cannot have the child returned upon demand, but where parental rights have  


not been terminated" is considered a foster care placement under ICWA.51                                             Thus when  


Natalie was removed fromher parents' custody for the second time and her parents could  


not have her returned on demand, the superior court needed to meet the requirements set  


out in 25 U.S.C.  1912(e) to modify the March 2015 stipulation from OCS supervision  


to OCS custody.  OCS appears to have recognized this when it asked the court make the  


required  findings in  its "Motion  for  Removal Findings" even though  it argued  the  


findings were necessary under CINA Rule 17(d)(2) rather than under ICWA.  


                     The November 2015 removal order purports to make all of the findings  


required under ICWA.  But the superior court had insufficient evidence upon which to  


base any findings.  OCS attached an affidavit from a social worker to the motion for  


removal findings.  However it included no information regarding whether the social  


worker qualified as an expert witness and no statement that returning Natalie to her  


parents was likely to result in serious emotional or physical damage.  The affidavit was  


thus clearly inadequate support for the court's order.  


          50         25  U.S.C.     1912(e)  (2012);  see  also  CINA  Rule   10  &   10.1(b).   

          51         25  U.S.C.     1903(1)(i).   

                                                                -18-                                                          7221  

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

                                  Even though no party responded to the motion, "[t]he fact that a motion is                                                                                                       


uncontested does not mean that it must be granted as a matter of right."                                                                                                                                            

                                                                                                                                                                                       Even when a  


 motion is unopposed,"thesuperior court is obligated to carefully examine the motion and  




 any supporting materials in order to determine if granting the motion is warranted." 

                                  "[P]lain error exists in a CINA case where 'an obvious mistake has been  


 made which creates a high likelihood that injustice has resulted.' "54  Granting the motion  


 for removal findings with such scant competent evidence to support it was an obvious  


 mistake  that  created  such  a  likelihood.                                                               We  therefore  vacate  the  superior  court's  


November 2015 removal order.  


                                  The parties take opposing positions on the proper remedy.  Morris argues  


 that if the removal findings are vacated, Natalie must be returned to her parents.  OCS  


 counters that the appropriate remedy is remand to the superior court for an evidentiary  




                                  The relevant ICWA section provides:  


                 52               Gallagher v. Gallagher                                   , 866 P.2d 123, 124 (Alaska 1994).                                                     See, eg.           ,  Willie  

 v.  State, 829 P.2d 310, 312 (Alaska 1992) ("[T]he State's failure to respond does not                                                                                                                       

 entitle [the defendant] to automatic suppression of the                                                                           evidence.");  Bauman v. State, Div.                                       

 of Family &Youth Servs.                                      , 768 P.2d 1097, 1099 (Alaska 1989) ("[T]he proponent has no                                                                                       

 absolute right to summary judgment merely because the opponent fails to respond.");                                                                                                       

 Weaver Bros., Inc. v. Chappel                                                , 684 P.2d 123, 126 (Alaska 1984) (finding summary                                                               

judgment motion should have been denied even if unopposed when moving party had   

 not met burden of showing there were no issues of material fact).                                                                                                  

                 53              S.L. v. J.H., 883 P.2d 984, 986 n.6 (Alaska 1994) (per curiam) (citing State  


 v. Johnson, 525 P.2d 532, 534-35 (Alaska 1974)).  


                 54              Kyle S., 309 P.3d at 1267  (alteration in original) (quoting Lucy J. v. Dep't  


 of Health &Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1118 (Alaska 2010)  


 (quoting Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502 (Alaska  



                                                                                                       -19-                                                                                               7221

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

                            Where any petitioner in an Indian child custody proceeding                                             

                            before a State court has improperly removed the child from                                                          

                            custody of the parent . . . the court shall decline jurisdiction   

                            over such petition and shall forthwith return the child to his                                         

                            parent . . .        unless returning the child to his parent . . . would                                        

                            subject the child to a substantial and immediate danger or                                                               

                            threat of such danger                        .[55]  

Further, CINA Rule 20 provides that "[i]f the court determines that the challenged order  


violated 25 U.S.C.  1911, 1912 or 1913, the court shall immediately invalidate the  


order and take other appropriate action which may  include dismissing the case and  


ordering the child returnedto the parents."56  Given this framework, vacating the removal  


order does not require, as Morris urges, that Natalie be immediately returned to her  


parents without consideration for her safety.  Based upon its comments at the January  


2017 hearing, the superior court believed that Natalie faced a "substantial and immediate  


danger or threat of such danger" if she were returned to her parents.  Given the time that  


has passed since that hearing, the appropriate remedy in this case is remand to the  


superior court to conduct further proceedings to ensure Natalie's safety.  


V.            CONCLUSION  

                            The order dismissing the case and the order granting removal findings are  


VACATED.   We REMAND to the superior court to conduct further proceedings to  


determine whether OCS continues to have grounds for custody, and if so, whether  


removal is necessary.  


              55            25  U.S.C.     1920  (emphasis  added).  

              56            CINA  Rule  20(c)  (emphasis  added).    

                                                                                       -20-                                                                                       7221  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights