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Jennifer L. v. State, Department of Health and Social Services

Supreme Court of Alaska

August 28, 2015

JENNIFER L., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Appeal from the Superior Court Nos. 4AK-00001/ 00002/00003 CN of the State of Alaska, Fourth Judicial District, Aniak, Douglas Blankenship, Judge.

William T. Montgomery, Assistant Public Advocate, Bethel, and Richard Allen, Public Advocate, Anchorage, for Appellant.

Janell Hafner, Assistant Attorney General, and Craig W. Richards, Attorney General, Juneau, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

The State's Office of Children's Services (OCS) took three minor children into emergency custody, then sought a court order granting OCS temporary custody, asserting there was probable cause to find the children in need of aid. A standing master determined that no probable cause existed and recommended that the three children be returned to their mother's custody. The State objected to the master's recommendation, and over three weeks later the superior court reviewed and rejected it, finding that there was probable cause. The mother filed this appeal, asking us to hold that masters have the authority to return children to their homes without judicial review. Before the State filed its brief, the superior court dismissed the underlying case, making this appeal moot.

We apply the public interest exception to the mootness doctrine and affirm the superior court's ruling. However, we also acknowledge the importance of avoiding procedural delay in returning children home, and we refer this issue to the court's Advisory Committee on the Child In Need of Aid (CINA) Rules to consider how the process may be improved.

II. FACTS AND PROCEEDINGS

Jennifer and her husband Adam are the parents of three minor children: a daughter, Andrea, and two younger boys.[1] The children are Indian children as defined in the Indian Child Welfare Act (ICWA);[2] their tribal affiliation is with the Village of Lower Kalskag.

OCS was involved in the children's lives for a decade, largely because of the parents' problems with alcohol. But the events leading up to this appeal mark the first time OCS removed the children from their home. OCS did so after it received a report in late May 2014 that J.K., a 31-year-old man, punched the youngest boy while drinking alcohol with Jennifer and her daughter Andrea, then 16.

OCS assigned the investigation to a social worker, who traveled to Lower Kalskag in early June, visited the family's home, and found both parents under the influence of alcohol. He interviewed the parents, two of the children, and another relative who was also an ICWA social worker. The OCS employee learned that J.K. was alleged to be a sex offender, that J.K. was currently in a sexual relationship with Andrea, that her parents often allowed J.K. to spend the night with her in their home, and that Andrea was pregnant with J.K.'s child.

OCS removed the three children on June 11, and the next day it filed a petition for temporary custody and for an adjudication that the children were in need of aid. The superior court referred the matter to a standing master. The master set a temporary custody hearing for June 14, heard evidence from a number of witnesses, then continued the hearing to June 18 "to allow [Adam's] attorney to be present." The master authorized OCS to retain temporary custody of the children in the meantime. At the June 18 hearing the parties presented no additional evidence, and on June 26 the master issued a written order, finding no probable cause to believe that any of the three children were children in need of aid. The master found that there was insufficient evidence to determine the nature of J.K.'s alleged sexual offense, that Andrea's relationship with J.K. was not cause for removal since she was of the age of consent, and that while the parents had made some poor choices, they had not neglected their other children. The master's order concluded that "the State must immediately return the . . . children to [Jennifer and Adam]."

The State did not return the children, but instead filed timely objections to the master's order with the superior court.[3] It was not until July 11 that the superior court put an oral decision on the record rejecting the master's recommendation. In a written decision and order distributed July 14, it also rejected Jennifer's argument that the master's order should have taken effect without judicial review, citing the CINA rules. On the merits of the recommendation, it found there was probable cause to believe that two of the children were children in need of aid pursuant to AS 47.10.011(7)[4] and that all three were children in need of aid pursuant to AS 47.10.011(10).[5] The superior court therefore ordered that temporary custody remain with the State through the adjudication hearing. However, on the State's representations that it would assist the family in developing a safety plan and ...


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