Clementine F. v. State, Department of Health & Social Services

         Appeal from the Superior Court of the State of Alaska, No. 3CO-15-00001 CN Third Judicial District, Cordova, Daniel Schally, Judge pro tem.

          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.

          OPINION

          BOLGER, JUSTICE.

         I. INTRODUCTION

         The 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.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Jasmine was born in February 2009 to Clementine and Jermaine.^[1] 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 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 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.

         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 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."

         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 the 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."

         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 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 of custody [by OCS]."^[2] Accordingly, the court released Jasmine from OCS custody and 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 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 prejudiced by the [superior] court's ruling.' "^[5] 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.' "^[6]

         "Whether the trial court's factual findings satisfy the CINA statutes is a question of law."^[7] "We exercise our independent judgment when interpreting Alaska's procedural rules, including the CINA rules."^[8]

         Whether Clementine's due process rights were violated is also a question of law.^[9] 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."^[10]

         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, 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.

         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 ...