CLEMENTINE F. Appellant,
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
from the Superior Court of the State of Alaska, No.
3CO-15-00001 CN Third Judicial District, Cordova, Daniel
Schally, Judge pro tem.
D. Camozzi, Law Office of Gregory S. Parvin, Anchorage, for
Jonathan A. Woodman, Senior Assistant Attorney General,
Anchorage, and Craig W. Richards, Attorney General, Juneau,
R. Athens, Assistant Public Advocate, and Richard K. Allen,
Public Advocate, Anchorage, Guardian Ad Litem.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Office of Children's Services(OCS) took emergency custody
of a child 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.
FACTS AND PROCEEDINGS
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.
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 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.
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.
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 hearing the court 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.
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 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.
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.
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.
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]
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.
meantime the Public Defender Agency identified a conflict of
interest 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."
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.
April 2 temporary custody hearing, OCS and the guardian ad
litem both supported Jermaine's motion. Clementine
repeated her request that the court keep 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
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 of
custody [by OCS]." Accordingly, the court released Jasmine
from OCS custody and dismissed the case.
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) or (d),  which she argued provides
for a review hearing to be held at a party's request, and
(2) that the court violated Clementine's due process
superior court denied Clementine's motion for
reconsideration. Clementine appeals.
STANDARD OF REVIEW
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 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 unreasonable or so
prejudicial as to amount to an abuse of discretion.'
the trial court's factual findings satisfy the CINA
statutes is a question of law." "We exercise our
independent judgment when interpreting Alaska's
procedural rules, including the CINA
Clementine's due process rights were violated is also a
question of law. Questions of law are reviewed de novo, and
we will adopt "the rule of law that is most persuasive
in light of precedent, reason and policy."
Superior Court Did Not Err By Releasing Jasmine From OCS
Custody And Dismissing The Case.
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,
CINARule10requiredthecourt 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.
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 ...