538 P.3d 723
Alaska2023Background
- OCS took emergency custody of newborn Cora days after birth and filed a CINA petition alleging risk under AS 47.10.011 (initially (6), (9), (10); later amended to add (8)).
- Alleged facts: history of domestic violence between parents (window breaking, hair-pulling leaving a small bald spot, May 12 scratch incident), foster reports of bruising on older children, prior removal of parents’ older children for neglect/substance issues, and father Gino’s prior felony assault conviction against a child and refusal to engage in services.
- The Tribe intervened and a guardian ad litem was appointed for Cora; superior court held an evidentiary probable cause hearing.
- The superior court dismissed the CINA petition for lack of probable cause and denied OCS’s reconsideration; OCS appealed to the Alaska Supreme Court.
- The Alaska Supreme Court held that (1) “substantial risk” (in §§ .011(6) and (8)(B)) means an actual, significant threat greater than a mere or remote possibility but need not be imminent or probable; (2) subsection (8)(B)(ii) requires the child to have actually been exposed to felony-level domestic violence; and (3) probable cause existed under § .011(6) and § .011(8)(B)(i) but not under § .011(8)(B)(ii).
Issues
| Issue | Plaintiff's Argument (OCS) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Meaning of “substantial risk” in AS 47.10.011(6) and (8)(B) | Means an actual, significant threat — more than a mere or remote possibility; need not be imminent or probable | Statutory language should be read narrowly to protect parental rights | Held: "substantial risk" = actual, significant threat, more than mere possibility; need not be imminent or probable |
| Meaning of “exposure” in AS 47.10.011(8)(B)(ii) | Does not require prior direct exposure; statute covers substantial risk child will be exposed | Requires the child to have actually seen/heard/perceived domestic violence | Held: (8)(B)(ii) requires actual exposure to felony-level domestic violence to apply |
| Probable cause under AS 47.10.011(6) (substantial risk of substantial physical harm) | Evidence of domestic violence incidents, father’s prior felony assault conviction, refusal to engage in services, and prior removals support probable cause | Evidence is insufficient—no direct injury to infant and isolated incidents | Held: Reversed superior court — evidence sufficient for probable cause under § .011(6) |
| Probable cause under AS 47.10.011(8)(B)(i) (risk of mental injury from pattern of terrorizing-like behavior) | The pattern/history of domestic violence and parents’ histories support a fair probability of future mental injury to the child | No demonstrated pattern sufficient to meet even probable cause standard | Held: Reversed superior court — evidence sufficient for probable cause under § .011(8)(B)(i) |
Key Cases Cited
- In re J.A., 962 P.2d 173 (Alaska 1998) (probable cause for CINA is a "fair probability or substantial chance")
- Van Sandt v. Brown, 944 P.2d 449 (Alaska 1997) (definition of probable cause as fair probability or substantial chance)
- Martin N. v. State, 79 P.3d 50 (Alaska 2003) (witnessing domestic violence can create substantial risk of mental injury)
- Winston J. v. State, 134 P.3d 343 (Alaska 2006) (ongoing domestic violence can support CINA finding under § 47.10.011(8)(B)(i))
- Barbara P. v. State, 234 P.3d 1245 (Alaska 2010) (§ 47.10.011(8)(B)(i) does not require child to be physically present during domestic violence)
- Philip J. v. State, 314 P.3d 518 (Alaska 2013) (analysis of § 47.10.011(8) and domestic violence risk)
- Cora G. v. State, 461 P.3d 1265 (Alaska 2020) (statutory interpretation principles and CINA framework)