STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN‘S SERVICES v. MICHELLE P. and MORRIS L.
Supreme Court Nos. S-16574/16594
THE SUPREME COURT OF THE STATE OF ALASKA
February 9, 2018
No. 7221
CARNEY, Justice.
Superior Court No. 4BE-14-00081 CN
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.
Appearances: Laura Fox, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellant and Cross-Appellee. William T. Montgomery, Assistant Public Advocate, Bethel, and Richard K. Allen, Public Advocate, Anchorage, for Appellees and Cross-Appellant. No appearance by Native Village of Tuluksak. No appearance by Guardian Ad Litem.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
I. INTRODUCTION
A court must have jurisdiction to rule on a case. The superior court dismissed a Child in Need of Aid (CINA) petition because it believed it no longer had jurisdiction over the case after the disposition order granting the Office of Children‘s Services (OCS) custody of the child had expired. We hold that jurisdiction over a CINA case is distinct from the grant of custody or supervision to OCS in a disposition order and that it derives from the child‘s status as a child in need of aid. We therefore reverse the superior court‘s order dismissing the petition and remand for further proceedings.
Before dismissing the CINA petition, the superior court entered removal findings based only on a motion filed by OCS. This was error because the removal order was not supported by sufficient evidence and did not comply with the requirements of the Indian Child Welfare Act (ICWA).1 We therefore reverse the removal findings and remand for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Emergency Petition And Temporary Custody Order
Michelle P. and Morris L. are the parents of Natalie, who was born in April 2014.2 Natalie is an Indian child as defined by ICWA.3 On October 31, 2014, OCS filed an emergency petition to adjudicate Natalie a child in need of aid and to grant it temporary custody. The petition stated that OCS had taken emergency custody of Natalie the day before and alleged that Natalie was a child in need of aid under
After a temporary custody hearing a magistrate judge found probable cause to believe Natalie faced an imminent risk of physical damage or harm if returned to Michelle. Morris was incarcerated at Palmer Correctional Facility at the time. The magistrate judge further found that Natalie had been neglected, and that OCS had made reasonable and active efforts to prevent the breakup of the Indian family. An adjudication hearing was scheduled for March 2015. The superior court adopted the magistrate judge‘s findings in a December 4 order. Natalie‘s tribe entered its appearance after the temporary custody hearing.4
B. The Parents And OCS Stipulate To Adjudication And OCS Supervision
At the hearing in March 2015 Michelle stipulated to adjudication and disposition
C. Natalie‘s Second Removal From Her Parents’ Home And Modification Of The Disposition From OCS Supervision To OCS Custody
At the October 1 hearing OCS notified the court that Natalie had been successfully returned to Michelle and that it intended to file a motion to dismiss by the following Monday. The motion was never filed. Instead, a month later OCS filed a “Motion for Removal Findings” pursuant to CINA Rule 17(d)(2), stating that Natalie had been removed from her parents’ home on October 3 because Michelle had relapsed and Morris had been arrested for domestic violence. OCS asked that the court make findings that the removal from October 3, 2015 onward was warranted because: (1) continued placement in the home was contrary to Natalie‘s welfare; (2) placement with her parents would likely result in serious physical or emotional damage to Natalie; (3) there was good cause to deviate from ICWA‘s foster care placement preferences; and (4) OCS had made active and reasonable efforts to prevent the breakup of the Indian family. OCS‘s motion was supported by an affidavit from a social worker. No party responded to OCS‘s motion.
On November 17 the court entered findings authorizing removal as proposed by OCS (November 2015 removal order). The order included a finding that there was “clear and convincing evidence, including the testimony of qualified expert witnesses, that the custody of the child by the parents [was] likely to result in serious emotional or physical damage to the child[].”
On February 29 Morris filed a “Motion to Return Child and/or Request for Hearing on the Return of the Child.” He argued that Natalie must be returned to her parents because the November 2015 removal order was unlawful and that the only way for OCS to assume custody of Natalie was by requesting a temporary custody hearing or removal hearing under CINA Rule 10. Alternatively, he requested a CINA Rule 19.1(c) review hearing, asserting that his recent release from incarceration constituted a change in circumstances. Based on Morris‘s motion, the court eventually scheduled a CINA Rule 19.1(c) review hearing for April 22.
D. Litigation Of Morris‘s Motion To Dismiss
On March 25 OCS filed a petition to extend its custody of Natalie for one year, pursuant to
actually a temporary custody order of an indefinite duration. Natalie‘s tribe joined Morris‘s motion to dismiss. In addition to restating or otherwise joining Morris‘s arguments, the tribe argued that OCS‘s “failure to strictly comply with the requirements of [CINA Rule] 19.2(a) mean[t] that the untimely-filed petition for an extension of custody [was] void and unenforceable.” On May 19 the court denied the motion to dismiss. The court reasoned that, due to
On November 22 the court issued a notice that it was reconsidering, sua sponte, its order denying Morris‘s motion to dismiss, and it invited the parties to file briefs. On January 3, 2017, the superior court dismissed the case. The court stated that it was reversing “its order of June 14, 2016.6 [OCS] did not file pursuant to the rule a petition prior to 30 days before its expiration of March 19, 2016.” The court further wrote, “[f]or this reason alone this case is dismissed and the child is ordered to be released from OCS custody.”
F. Second Emergency Petition And Appeal Of Superior Court‘s Order Dismissing The Case
The next day OCS filed a new emergency petition to adjudicate Natalie a child in need of aid,7 stating in pertinent part:
On January 3, 2017, the Court entered an order of dismissal after it sua sponte reconsidered a previously entered order denying motion to dismiss filed by the father. At the time of
the court‘s order [Natalie] was placed in licensed foster care . . . in [a village]. The parents reside in [another village]. . . . [Natalie] faces imminent risk of physical harm or damage as a result of the Court‘s order, which releases a . . . child without any arrangements for an adult caregiver to provide for her.
At the emergency hearing on January 5 OCS argued that the court‘s order granting Morris‘s motion to dismiss created the emergency and that there was no requirement that “the harm has to have been perpetrated, necessarily, specifically by the parent.” The court disagreed and dismissed the newly filed emergency petition. The court also explained that it had initially denied Morris‘s motion to dismiss because it believed the extension could be retroactive, but it later determined after additional briefing and review of the case law that it could not retroactively extend a custody order. The court then stated that it was “very concerned for [Natalie] . . . [and] very concerned because from the history . . . the parents aren‘t doing their share.” The court noted its concern for Natalie‘s safety and remarked that “[i]t is a terrible position to put a three-year-old child in.” But the court reasoned that it had no choice except to grant the motion to dismiss, it said, “I can‘t fit it into the law, or I would. I mean, that‘s just as simple as that folks, I don‘t think it‘s for the good of the child at all.”
OCS appeals the superior court‘s order of dismissal and the parents have joined in opposing the appeal. Morris brings a cross-appeal of the court‘s November 2015 removal order; Michelle has not joined his cross-appeal.
III. STANDARD OF REVIEW
“[W]e exercise our independent judgment ‘when interpreting a civil rule’ or statute,”8 and interpret statutes “according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as well as the intent of the drafters.”9 “We review questions regarding both subject matter jurisdiction and personal jurisdiction de novo, as ‘[j]urisdictional issues are questions of law subject to [our] independent judgment.’ ”10 When we review an issue
As for the issues raised in the cross-appeal, whether a superior court‘s factual findings comply with ICWA requirements is a question of law, which we review de novo.12 “[W]hether substantial evidence supports the court‘s conclusion that an Indian child is likely to be seriously harmed if returned to his parent is a mixed question of fact and law.”13 The determination that a child will suffer serious physical or emotional harm if returned to a parent‘s custody is a factual finding that we review for
clear error, but whether qualified expert testimony sufficiently supports this determination is a legal question that we review de novo.14 “In CINA cases, we review issues that were not raised in the trial court for plain error.”15
IV. DISCUSSION
A. It Was Error To Dismiss The Petition Based Upon A Perceived Lack of Jurisdiction.
1. The superior court‘s jurisdiction over a child in need of aid is distinct from the custody granted to OCS in a disposition order.
This case concerns subject matter jurisdiction, which is “the legal authority of a court to hear and decide a particular type of case.”16 The parents argue that the superior court was correct in concluding that it lacked jurisdiction, or authority, to extend the disposition order giving OCS custody of Natalie because the existing disposition order had expired prior to OCS filing a petition to extend the order. OCS argues that, contrary to the superior court‘s conclusion in the January 2017 order dismissing the case, jurisdiction is tied to a child‘s status as a child in need of aid, not the existence of a disposition order granting OCS custody or supervision.
We take this opportunity to expand on what we first recognized in Erica A. v. State, Department Of Health & Social Services, Division of Family & Youth Services: the superior court‘s authority in a CINA proceeding is not dependent upon an
existing disposition order.17 A disposition order confers authority to OCS over a child who has been adjudicated a child in need of aid, but has no impact on a court‘s authority to hear and decide matters regarding the child.
The legislature has enacted a broad statutory framework governing CINA proceedings.18 This framework includes a mandate that the statutes related to CINA proceedings are to
be liberally construed to . . . achieve the end that a child coming within the jurisdiction of the court under this chapter may receive the care, guidance, treatment, and control that will promote the child‘s welfare and the parents’ participation in the upbringing of the child to the fullest extent consistent with the child‘s best interests.19
It is with this stated legislative intent and construction that we apply and construe CINA statutes. Our court rules reflect the same broad intent in CINA proceedings; CINA Rule 1(c) states that “[t]hese rules will be construed and applied to promote fairness, accurate fact-finding, the expeditious determination of children‘s matters, and the best interests of the child.”20
by the court to be a child in need of aid under
While the introductory statutes establish the basic framework of the court‘s authority over CINA proceedings, the breadth of that authority is emphasized in
interests, for a period of time not to exceed two years or in any event extend past the day the child reaches 19 years of age.”25
In addition to the powers granted the superior court by
[T]he court shall, in addition to the requirements of those provisions [governing those types of hearings] and the requirements of court rules, determine whether a child continues to be a child in need of aid at the time of the review or hearing. The court may not continue or extend state custody or supervision of the child unless the court finds that the child continues to be a child in need of aid . . . .26
Thus,
This review of the statutory framework makes clear that the superior court‘s authority in a CINA proceeding is derived from the child‘s adjudicated status as a child in need of aid and not from the existence of a disposition order.28 The parents’ interpretation of the statutes and the superior court‘s order in this case would require us
to graft onto the statutes a jurisdictional limit that
Our decision in Erica A. comports with this interpretation of the statutory framework. The child in Erica A. had been committed to OCS‘s custody for two years.31 The disposition order expired on the first day of a termination trial.32 Approximately three weeks after the disposition order expired, OCS filed an emergency petition to adjudicate the child as a child in need of aid.33 Five days after OCS filed the emergency petition, the superior court entered an order renewing OCS‘s custody of the child based on the renewed finding that the child was a child in need of aid.34 After the emergency petition was filed, but before the court entered its renewed order, the mother signed a power of attorney purporting to give the child‘s grandmother authority over the child‘s care and custody.35 The mother argued that her attempted transfer of the child‘s care and custody should be respected because, when she signed it, the superior court lacked
jurisdiction over the child.36 On appeal we held, in relevant part, that “[n]othing in the statutory grant of authority preclude[d] the extension from being implemented after the initial two-year commitment ha[d] technically expired. Erica‘s jurisdictional argument thus lacks merit.”37
Morris and Michelle argue that we ruled in Erica A. “that nothing in
In addition to the mistaken conclusion about lack of jurisdiction, it was error for the superior court to simply order Natalie‘s release back to her parents without considering her safety or best interests. Under
that there must be a disposition order for the court to retain jurisdiction.40 And the court is required in all CINA proceedings to consider and act in the child‘s best interests.41 Both considerations further support our conclusion that the court‘s jurisdiction over a child who has been adjudicated in need of aid is not dependent upon a disposition order. Alaska Statute 47.10.083 required the court to act in Natalie‘s best interests and to consider whether immediately returning her to her parents’ custody would have been detrimental, which its comments made clear it believed was the case.
Counsel for Morris and Michelle emphasized at oral argument that if we concluded that a disposition order was not jurisdictional, our decision would render meaningless CINA Rule 19.2(a) which requires OCS to file a petition for extension of a disposition order at least 30 days prior to the expiration of the existing order.42
To address this argument we must first review the role of our court rules in our legal system. This court is empowered to promulgate court rules pursuant to the Alaska Constitution.43 Where a procedural provision in a court rule is inconsistent with an Alaska statute, the court rule generally supersedes the statute unless the statute was
specifically enacted to change the rule.44 The superior court‘s jurisdiction or authority to decide a case is not procedural; its jurisdiction is substantive and requires legislative enactment.45 Our court rules cannot be construed to abrogate or otherwise diminish the court‘s jurisdiction or authority to hear and decide a case. The requirement that a petition to extend custody must be filed 30 days before the expiration of an existing disposition order is found in the court rule; there is no statute that sets such a deadline.
The court rules themselves allow time limits, in appropriate circumstances, to be enlarged.46 But the rules’ deadlines are intended to be observed. In cases involving rights as fundamental as those affected by CINA proceedings, we emphasize the importance of adhering to the time limits set by the applicable court rules. We encourage trial courts to rely on monetary sanctions as the preferred means of assuring compliance with the CINA court rules pursuant to Alaska Civil Rule 95.47 And we discourage the
use of sanctions that might affect or prejudice the rights of a party: dismissal in this case ignored Natalie‘s best interests.48 The superior court‘s order dismissing the petition is vacated, and we remand for further proceedings.
B. It Was Error To Grant Removal Findings Based Solely On OCS‘s Unopposed Motion.
1. It was plain error to grant removal findings absent any evidence to support the findings.
Morris has appealed the superior court‘s November 2015 removal order. Both
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.50
Natalie was in her parents’ physical custody but under OCS supervision pursuant to
The November 2015 removal order purports to make all of the findings required under ICWA. But the superior court had insufficient evidence upon which to base any findings. OCS attached an affidavit from a social worker to the motion for removal findings. However it included no information regarding whether the social worker qualified as an expert witness and no statement that returning Natalie to her parents was likely to result in serious emotional or physical damage. The affidavit was thus clearly inadequate support for the court‘s order.
Even though no party responded to the motion, “[t]he fact that a motion is uncontested does not mean that it must be granted as a matter of right.”52 Even when a motion is unopposed, “the superior court is obligated to carefully examine the motion and any supporting materials in order to determine if granting the motion is warranted.”53
“[P]lain error exists in a CINA case where ‘an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ”54 Granting the motion for removal findings with such scant competent evidence to support it was an obvious mistake that created such a likelihood. We therefore vacate the superior court‘s November 2015 removal order.
The relevant ICWA section provides:
Where any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent . . . the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent . . . unless returning the child to his parent . . . would subject the child to a substantial and immediate danger or threat of such danger.55
Further, CINA Rule 20 provides that “[i]f the court determines that the challenged order violated
V. CONCLUSION
The order dismissing the case and the order granting removal findings are VACATED. We REMAND to the superior court to conduct further proceedings to determine whether OCS continues to have grounds for custody, and if so, whether removal is necessary.