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Kyle S. v. State, Dept. of Health & Social Services

Supreme Court of Alaska

October 4, 2013

KYLE S., Appellant,
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.

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Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Janell M. Hafner, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.


FABE, Chief Justice.


Kyle S. appeals the superior court's decision adjudicating his teenage daughter Jane a child in need of aid.[1] Jane was taken into State custody when she was 15 years old, after she reported being physically abused by her stepmother. The superior court based its adjudication decision on Jane's propensity to run away; it made no findings about either Kyle or his wife. At the time of the adjudication hearing, Jane was also involved with the Division of Juvenile Justice because of several criminal charges. Kyle challenges the court's adjudication decision, arguing that the statutory subsection about runaways is unconstitutional as applied to him and that the court incorrectly concluded that the State made active efforts to prevent the family's breakup. Because Kyle waived his constitutional argument by not raising it below and because the superior court's active-efforts decision is supported by the record, we affirm the superior court's decision.


Jane S. is a 17-year-old Indian child.[2] At the time of the adjudication trial, Jane had been placed in Sitka, and her father was living in another state. Jane's mother died when Jane was young. Her father, Kyle, has been in a relationship with his current wife, Sybil, since 2002; they married when Jane was eight years old. Jane has an older maternal half sister, Dora; an older sister, Linda; and a younger stepsister, Brenda.

The Office of Children's Services (OCS) had sporadic contact with the family over the course of several years, largely due to concerns about domestic violence. Sybil was charged with assaulting Kyle several times; one criminal case included a charge of reckless endangerment in which Linda was the victim. According to a social worker, OCS met with Kyle to develop care and safety plans in 2004 and 2006, which involved Sybil not being in the home with the children, but Kyle did not follow these plans. OCS took no legal action then because according to the social worker, " it didn't rise to the level for [OCS] to do court intervention."

Some time in early August 2011 the family decided to move to another state. Jane was taken into State custody on August 23. Three days later, at the first emergency custody hearing on August 26, Kyle told the court that the family had already leased a house in the other state, enrolled the children in school, and would be leaving Fairbanks on September 1. He told the court that they were moving to get medical treatment for him [3] and to get Jane away from her friends, whom he considered to be bad influences.

At the time of the events that prompted OCS to take custody of Jane, Linda, who was 18 years old, and Brenda also lived in the family home. In early August 2011 Jane reported that Sybil beat her with a belt to discipline her for failing to do her chores. Sybil used spanking with a belt to discipline

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all the children, but this time Jane " got mouthy" and refused to let Sybil spank her. Jane reported that Sybil slapped her, pulled her hair, and started hitting her with the belt. A social worker testified that Brenda corroborated Jane's account of the incident.

Kyle was in the garage at the time. He testified that he " became aware of an altercation" and intervened. Jane went to a neighbor's house; Linda took Brenda to the same neighbor's house and then left the home. Kyle and Sybil had a fight after Jane left. After someone contacted police, Jane was taken to a child advocacy center for an interview. She had bruises on her arms and legs and some scratch marks on her neck and back. Sybil was arrested and ultimately charged with fourth-degree assault. The charges were unresolved at the time of the adjudication hearing.

A team decision meeting, which Kyle attended, was held on August 12. Those involved agreed to a safety plan, deciding that Jane would stay with a friend. Jane evidently got in trouble at the friend's house, and she was sent home. According to Kyle, Jane was back at home for nearly a week.[4] On August 18, in Sybil's criminal case, the court lifted a no-contact order between Sybil and Jane as long as Kyle or another adult was there. After the criminal hearing the OCS caseworker spoke to Sybil, asking her not to return to the home. Kyle told the social worker that in his opinion the criminal order took precedence over the safety plan and that OCS should not be involved with his family. Sybil returned to the family home that evening.

According to Kyle, he had set up a doctor's appointment for Jane after school for the day after Sybil's return, in compliance with the OCS plan,[5] but Jane skipped school and did not come home on the bus. Kyle testified that he found Jane " drinking in the woods" after looking for her " for a few hours." Jane asked to stay with her half sister Dora, and Kyle allowed her to do so. After Sybil returned to the house, OCS scheduled a second ...

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