State of Alaska, Department of Family & Community Services, Office of Children's Services v. Karlie T. and Gino H.State of Alaska, Department of Family & Community Services, Office of Children's Services v. Karlie T. and Gino H.
Appearances: Katherine Demarest, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellant. Julia Bedell, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellee Karlie T. Monique Eniero, Anchorage, for Appellee Gino H.
Before: Winfree, Chief Justice, and Maassen, Carney, Borghesan, and Henderson, Justices.
WINFREE, Chief Justice.
I. INTRODUCTION
The Office of Children‘s Services (OCS) took emergency custody of a child within
II. FACTS AND PROCEEDINGS
A. OCS‘s Assumption Of Emergency Custody And Its CINA Petition
Karlie T. and Gino H. are the parents of Cora T.,1 born May 31, 2022. OCS took emergency custody of Cora directly from the hospital on June 32 and filed an emergency petition to adjudicate Cora as a child in need of aid and obtain temporary custody of Cora pending further proceedings.3 OCS alleged that Cora was a child in need of aid under three provisions of
OCS cited ongoing concerns of domestic violence between the parents and their previous refusals to actively engage with OCS after prior contacts. The agency asserted that it had assumed emergency custody of Karlie‘s two older children in March 2021 after Karlie was found “intoxicated, unconscious, and unresponsive” during a welfare check, leaving the children without “adequate supervision.” It alleged that there had been domestic violence in Karlie‘s past relationships, and it described Gino‘s prior conviction for felony assault in 2017 based on evidence that he struck his young son. OCS summarized: “Due to [Karlie‘s] inability to recognize the ongoing domestic violence in her relationship, [Gino‘s] inability to recognize the ongoing domestic violence in his relationship, and [Cora] being a vulnerable infant, [OCS] is requesting temporary custody with removal at this time.”
OCS noted that it believed Cora is an Indian child5 under the Indian Child Welfare Act (ICWA).6 Cora‘s Tribe later submitted an affidavit regarding Cora‘s tribal membership along with an intervention notice.7 The superior court approved the Tribe‘s intervention and appointed a guardian ad litem for Cora.8
B. The Probable Cause Hearing And Underlying Facts
The case was assigned to Superior Court Judge Adolf V. Zeman, but because he was unavailable the probable cause hearing
OCS had alleged in its petition that Cora was a child in need of aid under
(6) ... there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child‘s parent . . .[;]
(9) conduct by or conditions created by the parent . . . have subjected the child or another child in the same household to neglect; [or]
(10) the parent[‘s] ... ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child . . . .
At the beginning of the probable cause hearing, the court allowed OCS to amend its petition to include allegations that Cora was in need due to parental conduct listed in
(8) conduct by or conditions created by the parent . . . [that] have
(A) resulted in mental injury to the child; or
(B) placed the child at substantial risk of mental injury as a result of
(i) a pattern of rejecting, terrorizing, ignoring, or corrupting behavior that would, if continued, result in mental injury; or
(ii) exposure to conduct by a household member [as defined by domestic violence statutes] against another household member [that is a felony crime of domestic violence]; or
(iii) repeated exposure to conduct by a household member [as defined by domestic violence statutes] against another household member [that is a misdemeanor crime of domestic violence.]
The underlying facts OCS presented at the hearing to make these showings spanned back over five years and involved not only Karlie, Gino, and Cora, but also Karlie‘s older children and her and Gino‘s past partners.
1. Interactions between Karlie and Gino concerning to OCS
OCS asserted in its petition and at the probable cause hearing that a history of domestic violence exists between Karlie and Gino, focusing on three interactions: Gino breaking Karlie‘s bedroom window, Gino pulling Karlie‘s hair with enough force to leave a small bald spot, and Karlie scratching Gino‘s face during a dispute.
OCS called an Anchorage police officer to testify about a May 12, 2022 incident when Gino had called the police “stating that he was trying to get away from [Karlie].” The officer testified that he and another officer responded to Gino‘s call and that Gino “alleged that [Karlie] had scratched his face during an altercation.” The officer said he observed “a red scratch mark” that was “underneath [Gino‘s] right eye on his right upper cheek area.” The officer said he reviewed traffic camera footage showing the incident and that the footage showed:
[T]hey were both walking in the road, walking eastbound. [He] was to the left of [her]. [She], at first, she tries to reach out, appears to, like, grab his left arm or his right arm, on her left side.... [I]t doesn‘t appear to be in, like, an aggressive manner. He kind of shrugs away. He doesn‘t allow her to do that. They continue a couple of feet down the road. [A] bit later, [she] reaches up with her hands towards the direction of [his] face.”
The officer testified that when Karlie learned she was going to be arrested on the outstanding warrant, “she then ... claimed [Gino] broke her window.... I tried to ask her further questions [but] she did not go into further detail about that.” The officer also stated: “Later at the hospital she also disclosed to me [that] about one week prior there was another incident where she alleged [Gino] had pulled on her hair and caused a little bit of hair to pull out.” He further stated that Karlie “pull[ed] up the back of her hair” and, although he “didn‘t see any redness or any visible injury” he saw “one spot. . . a very small section where there wasn‘t hair growing.”
The officer testified that he had interacted with Karlie once prior to the May 12 incident. He said that in February 2022 Anchorage police received a call from “[a] woman I believed to be [Karlie‘s] mother” who was “claiming that [Karlie] was being abused by [someone].” He testified that when he went to Karlie‘s residence to speak with her, she “didn‘t appear to have any injuries” and she “claimed to me that there had been no disturbance, she wasn‘t being abused, and her mother was, basically, intoxicated and saying things [and] just being paranoid.”
OCS‘s caseworker for Karlie‘s family testified that the foster parents for Karlie‘s older children reported “multiple occasions where [Karlie] had bruises on her, and they are concerned with domestic violence going on.” That caseworker said it was her “understanding that the incident in May, as well as both parents’ history, was a cause of concern for . . . [Cora‘s] safety.” Another caseworker testified that Cora was “at impending danger of risk due to the parents’ history and inability to control their emotions.” She stated that Cora “is a young vulnerable infant [a]nd if the parents can‘t control their own behaviors and lash out towards each other, she‘s at risk.”
2. Karlie‘s past conduct concerning to OCS
OCS contended that Karlie‘s past conduct contributed to its conclusion that Cora was at risk of mental and physical harm in Karlie and Gino‘s custody. OCS presented evidence about Karlie‘s two older children being removed due to Karlie‘s substance abuse, her past partners having abused her and her older children, her failure to complete counseling required in the case plan for her older children, and her refusal to report her partners’ violence or protect her children from it.
The family caseworker testified that OCS had assumed custody of Karlie‘s older children after “a welfare check was done... [and] she was found intoxicated, and her children left without a caregiver.” At OCS‘s request the superior court took judicial notice that the two older children had been found to be children in need of aid and had been removed from Karlie‘s custody. The caseworker, who had worked with Karlie and the two children‘s fathers, testified that the boy‘s father had bit and thrown the boy and asserted that the father has “a history of assault, as well as assault on [Karlie and the boy].” She also testified that the girl‘s father “is a known sex offender who was in prison for six years due to his sex offense.” The caseworker explained that OCS “wants [Karlie] to engage in counseling services to work on the behaviors that lead her to a pattern... of unhealthy relationships.” The caseworker stated that Karlie had engaged in most of the services called for in the case plan developed after her older children‘s removal, including “an integrated substance abuse assessment,” “parenting classes,” “healthy relationships classes,” and an “outpatient program.” But she expressed concern that Karlie “has not engaged with counseling services” set out in her case plan.
The caseworker further explained that OCS “has concerns with [Karlie‘s] ability to be a protective parent and to protect her children from domestic violence.” She testified
3. Gino‘s conduct and criminal convictions concerning to OCS
OCS presented evidence of Gino‘s criminal history and his unwillingness to engage with social services. The superior court admitted into evidence three past convictions. One was from March 2017, when Gino pleaded guilty to felony assault of a child under age 12 (requiring medical treatment).10 He was sentenced to active and suspended jail time and three years of probation. The caseworker testified that during a case planning meeting with Gino in September 2022 they discussed this conviction and OCS‘s concerns, but Gino “didn‘t see that there was a problem with his history.” The other convictions were entered after no contest pleas for misdemeanor assault11 and unlawful contact with a crime victim in October 2020.12 He was sentenced to 90 days in jail and three years’ probation; both judgments ordered Gino to have no contact with a specified person.
The caseworker testified about Gino‘s refusal to engage with OCS‘s services. She said Gino told her “that he could have gone to anger management classes to avoid some or all his jail time, but . . . that he would rather go to jail than engage in services.” She said that after her September 2021 meeting with Gino, she “continued to offer case planning meetings” and “maintained regular contact with him.” She testified that from “November of [2021] to February” she “reached out to him multiple times to schedule an in-person case planning meeting.” But she said that Gino “mainly ignored my attempts to reach him” and “only responded periodically” to texts. She also said that in February 2022 she had a case planning meeting with Gino to discuss multiple services that OCS recommended for him, but that Gino informed her “that he does not know why he needs to engage in services, and that he does not see that there [are] any concerns with his ability to keep children safe.” The caseworker concluded by stating that Gino‘s past assaults on a child and others and his refusal to engage in services directed to anger management and domestic violence prevention posed a risk of harm to Cora.
4. The superior court‘s ruling
The court issued findings and an order from the bench at the conclusion of the probable cause hearing. The court started by saying it would dismiss the case, telling OCS: “You don‘t have any probable cause, and there‘s no basis for removal.” The court ordered that Cora be returned to her parents “before the end of the day.” The court then explained its decision.
The court first stated that OCS had “basically abandoned all of [the] claims in the Petition, except you came up with a new one, which I allowed you to do,” referring to the amended allegations regarding section .011(8). The court nonetheless did address the initial allegations of substantial risk of substantial physical harm under section .011(6) as well as the allegations of mental injury and substantial risk of mental injury under subsections .011(8)(B)(i) and (ii).
The court said it found “no behavior” by the parents like that described in subsection .011(8)(B)(i): “conduct or conditions created by the parent [that] have placed the child at substantial risk of mental injury as a result of a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury.” The court further said it found “no evidence of exposure” to domestic violence between household members under subsection
5. Denial of OCS‘s motion for reconsideration
OCS filed a motion for reconsideration of the court‘s order as it pertained to subsection .011(8)(B)(ii), asserting that the court had misinterpreted the provision to require that the child be directly and personally exposed to domestic violence. The parents each filed an opposition to the reconsideration motion. Judge Zeman denied the motion, stating: “Based on the language of
[T]he Court properly considered the totality of the circumstances in finding there was not a fair probability or substantial chance that the child was a child in need of aid under the probable cause standard. Moreover, the Court did not misapply the law in determining the child had to actually be exposed to domestic violence under [subsection] .011(8)(B)(ii).
6. Appeal
OCS appealed the superior court‘s rulings that probable cause did not exist to believe that Cora is a child in need of aid under
III. STANDARD OF REVIEW
“Whether probable cause exists” to find that a child is in need of aid “is a mixed question of law and fact.”13 “We review the content of the superior court‘s findings for clear error.”14 “Absent clear error, this court will accept the factual findings of the lower court.”15 “‘Whether probable cause arises from [the] facts, however, is a purely legal question’ that this court reviews de novo.”16
IV. DISCUSSION
A. Overview
This appeal requires that we consider the following questions of statutory interpretation: what does “substantial risk” of substantial physical harm mean under
“When determining a statute‘s meaning, we consider three factors: the language of the statute, the legislative history, and the legislative purpose behind the statute.”18 “The objective of statutory construction is to give effect to the intent of the legislature, with due regard for the meaning that the statutory language conveys to others.”19 “We give unambiguous statutory language its ordinary and common meaning, but the ‘plain meaning rule’ is not an exclusionary rule; we will look to legislative history as
B. “Substantial Risk” Of Harm In Both AS 47.10.011(6) And (8)(B)
1. Ordinary and common meaning
“In the absence of a [statutory] definition, we construe statutory terms according to their common meaning[;] [d]ictionaries provide a useful starting point for this exercise.”22 “Substantial” is defined as “[r]eal and not imaginary; having actual, not fictitious, existence,”23 or as “not seeming or imaginary: not illusive.”24 “Risk” is defined as “uncertainty of a result, happening, or loss; the chance of injury . . . ; esp., the existence and extent of the possibility of harm,”25 and as “the possibility of loss, injury, disadvantage, or destruction: contingency, danger, peril, threat” or “someone or something that creates or suggests a hazard or adverse chance: a dangerous element or factor — often used with qualifiers to indicate the degree or kind of hazard[.]”26
One legal authority defining “substantial risk” is the Restatement (Third) of the Law Governing Lawyers. A comment to the Restatement‘s Basic Prohibition of Conflicts of Interest, referring to a conflict when “there is a ‘substantial risk’ that a material adverse effect will occur,” states that “[i]n this context, ‘substantial risk’ means that in the circumstances the risk is significant and plausible, even if it is not certain or even probable that it will occur” and that the standard “requires more than a mere possibility of adverse effect.”27 Another legal authority is the tentative draft of the Restatement of the Law: Children and the Law, which defines “substantial risk” in the context of “civil child-protection proceeding[s]” based on “physical neglect.”28 It explains that “[t]o satisfy the substantial risk standard, there must be a strong possibility of serious harm, not simply a remote or insignificant possibility.”29
Another very similar definition comes from Wyoming‘s child protection laws: “‘Substantial risk’ means a strong possibility as contrasted with a remote or insignificant possibility.”30 The three definitions align by
2. Legislative purpose
The legislature has determined that “it is the policy of the state to strengthen families and to protect children from child abuse and neglect; the state recognizes that, in some cases, protection of a child may require removal of the child from the child‘s home.”31 The current version of
National statistics have shown Alaska has the highest rate of child abuse and neglect among all 50 states with 38 substantiated cases for every 1,000 children in the state‘s population. These disturbing numbers have steadily increased since the 1980‘s along with increases in substance abuse and domestic violence. One abuse feeds another. The cycle must stop. We‘re shirking our greatest responsibility if we don‘t face this tragedy head on and demand the tools, laws and resources to put an end to it.35
The governor described the bill as making “many changes in Alaska law to protect children and prevent crime.”36 The “most significant” included “[u]pdating the child in need of aid laws to put children first and make sure every effort is made to reunify the family when appropriate[.]”37
During a House Finance Committee hearing on HB 375, Representative Fred Dyson said that the CINA reforms would “[a]llow[] for earlier intervention in cases of child abuse and neglect when the child is in a dangerous home.”38 He stated that the bill would “[m]ake[] child protection the highest priority for [OCS], even higher than ‘family reunification’ at the expense of child safety.”39 At that hearing Assistant Attorney General Susan G. Wibker testified that the bill would remove the word “imminent” from CINA‘s jurisdictional statute, which then referred to “imminent and substantial risk of harm” to children.40 That change was in response to an audit undertaken by the Kempe Center after a report that a young girl in State care had been sexually assaulted.41 Wibker said that the Kempe Center reviewed a random selection of cases and advised that Alaska‘s statutes were written too narrowly and that social workers were handicapped in their ability to assess ongoing, high risk, and dangerous situations.42 Wibker said that the
3. Conclusion
“[T]he right to the care and custody of one‘s own child is a fundamental right recognized by both the federal and state constitutions.”45 This right implicates constitutional considerations of privacy46 and liberty.47 But we have also explained that “this right is not absolute” and that when “the best interests of a child require it, a state may terminate parental rights provided that the proper procedural safeguards are observed.”48 These considerations factor into our interpretation of “substantial risk,” and we strive to balance the private interest in family autonomy with the state‘s interest in protecting children from harm.49 Based on all the foregoing, we conclude that “substantial risk” in both
C. “Exposure” In AS 47.10.011(8)(B)(ii)
1. Context
A child can be found in need of aid under three different subsections of
(i) a pattern of rejecting, terrorizing, ignoring, or corrupting behavior that would, if continued, result in mental injury;50 or
(ii) exposure to conduct by a household member [as defined by domestic violence statutes] against another household member [that is a felony crime of domestic violence]; or
(iii) repeated exposure to conduct by a household member [as defined by domestic violence statutes] against another
household member [that is a misdemeanor crime of domestic violence].51
Contrasting language in (8)(B)(i), (ii), and (iii) provides context for determining the meaning of “exposure” in (B)(ii). Specifically, subsection (B)(i) does not mention “exposure” with respect to the stated pattern of serious, but perhaps not criminal, misconduct; subsection (B)(ii) refers to “exposure” to stated felony domestic violence conduct; and subsection (B)(iii) refers to “repeated exposure” to stated misdemeanor domestic violence conduct.
We have held numerous times that ongoing domestic violence can support a child in need of aid finding under subsection (B)(i).52 We also have held that the domestic violence does not have to be directed at the child if the court finds that the pattern of behavior, if continued, would create a substantial risk of mental injury to the child.53 And we have expressly confirmed that it is not necessary that the child witness or be present throughout the pattern of domestic violence at issue under (B)(i).54
Subsections (8)(B)(ii) and (iii) allow a court to find a child is in need of aid due to exposure to felony-level domestic violence or “repeated exposure” to misdemeanor-level domestic violence. OCS asserts that the superior court erred by interpreting subsection (B)(ii) to require that a child actually be exposed to domestic violence to be found a child in need of aid. According to OCS:
The language of the statute does not require proof that the child has already been exposed to violence, but rather, that the child is “at substantial risk of mental injury as a result of . . . exposure” to violence. If the evidence supports a finding that the child is likely to be exposed to violence in her parents’ care and that the violence would place her “at substantial risk of mental injury,” subsection (8)(B)(ii) applies.55 [Emphasis and alterations in original.]
The parents, on the other hand, argue that the superior court correctly interpreted “exposure to domestic violence” as requiring a child to see, hear, or otherwise perceive domestic violence.
OCS‘s interpretation of subsection (8)(B)(ii) is implausible and misstates the “risk” the statute is designed to address. “Exposure” is defined as “an act of exposing, laying open, or setting forth[;] . . . an act of subjecting to an experience or influence[;] . . . a condition of being exposed to danger or loss.”56 Although we “held that witnessing domestic violence is mentally harmful to children,”57 subsection (8)(B)(ii) addresses the risk of mental injury due to exposure to
Karlie correctly captures the relationship between subsections (8)(B)(i) and (ii), contending that (B)(i) is intended to allow the court to make “a CINA finding based on a pattern of harmful behavior regardless of whether the child has yet experienced that behavior firsthand” while (B)(ii) “provides a separate vehicle under which a child can be found to be at risk of mental injury because of the child‘s direct ‘exposure’ to domestic violence between the child‘s parents.” This interpretation reveals a harmonious whole while giving effect to all three provisions of subsection (8)(B).58
OCS asserts in its brief that our case law supports its position that subsections “(8)(B)(i) and (ii) can apply to children too young to have yet been exposed to the violence directly.” (Emphasis in original.) But OCS misreads our prior decisions. In Martin N. we affirmed a child in need of aid finding under subsection 8(B)(i), not (8)(B)(ii), after noting that (8)(B)(i) looked to the future:
[T]he trial court‘s factual findings were amply supported by the record, and we agree that Martin‘s acts constitute terrorizing behavior. We have previously held that witnessing domestic violence is mentally harmful to children. There was clear and convincing evidence that Martin‘s acts toward [the mother] create a significant risk of mental injury to [the child] if continued.59
In Winston J. we also affirmed a child in need of aid finding under subsection (8)(B)(i), not (8)(B)(ii). After noting that Winston argued that the superior court had erred by finding his children in need of aid under section .011(8), we quoted “in relevant part” subsection (8)(B)(i) when affirming the child in need of aid finding.60 Likewise in Barbara P. we affirmed a child in need of aid finding under subsection (8)(B)(i), not (8)(B)(ii): after stating that ”
Finally, although our decision in Philip J. was not as clear, in that case we also affirmed a child in need of aid finding under subsection (8)(B)(i), not (8)(B)(ii).62 We first quoted the superior court‘s ruling that Philip‘s conduct placed the child “at substantial risk of mental injury as a result of exposure to domestic violence and repeat domestic violence,” and cited in a footnote to
2. Conclusion
Based on the plain meaning of subsection (8)(B)(ii), its broader statutory context and contrasting language in (8)(B)(i), (ii), and (iii), and our existing case law, we conclude that a child must actually have been exposed to domestic violence to be found a child in need of aid under the subsection.
D. Application To Contested Superior Court‘s Probable Cause Rulings
A child in need of aid finding under subsection .011(8)(B)(ii) requires that the child has been actually exposed to felony level domestic violence, creating a substantial risk of mental injury. It is undisputed that Cora was not actually exposed to domestic violence of any kind. Accordingly, we affirm the superior court‘s original conclusion, and the later denial of reconsideration of that conclusion, that there was no probable cause to find Cora was in need of aid under this subsection.
Neither section .011(6), regarding substantial risk of substantial physical injury, nor subsection (8)(B)(i), regarding substantial risk of mental injury from a pattern of terrorizing-like conduct, requires that a child in need of aid finding be based on a child‘s actual exposure to domestic violence. And, as we set out earlier, the “substantial risk” under either subsection refers to a threat that is actual, significant, and more than a mere possibility, but it need not be probable, nor imminent, to satisfy the subsections.
At the probable cause stage of this CINA case, the superior court was not tasked with making findings whether the child was in need of aid under section .011(6) or subsection (8)(B)(i). The court instead was tasked with determining whether the evidence presented established probable cause to believe the child was in need of aid, i.e., “a fair probability or substantial chance” that the child was in need of aid, under section .011(6) or subsection (8)(B)(i).67 This low probable cause threshold for a finding about substantial risk of harm compels us to disagree with the court‘s conclusions that OCS had not established probable cause under section .011(6) and subsection (8)(B)(i).
As to section .011(6), the superior court said “there‘s no evidence that the child has suffered substantial physical harm and otherwise, there‘s no risk of or there‘s no evidence of [domestic violence] other than this May 12th thing between these two parents.” But there was relevant evidence of domestic violence other than the allegations about the May 12 incident, evidence that supported a probable cause determination about a substantial risk of physical harm to the child. First, there was evidence of ongoing domestic violence between Karlie and Gino, specifically evidence about Gino breaking Karlie‘s bedroom window, Gino pulling Karlie by the hair with sufficient force to leave a bald spot, the May 12 incident when Karlie scratched Gino‘s face in public, and reports from the foster parents for Karlie‘s older children that Karlie often had bruises suggesting domestic violence. Second, there was Gino‘s previous felony conviction for assault on his young son, along with another previous misdemeanor assault conviction. Coupled with these convictions was testimony that Gino saw nothing of consequence arising from his convictions and refused to engage in any child protection services, to the point that he would rather go to jail than
As to subsection (8)(B)(i), the superior court found “no behavior” by the parents fitting the terrorizing-like conduct described in the subsection. But the same evidence of ongoing domestic violence between Karlie and Gino and of Gino‘s history of violence, along with the evidence of Karlie‘s inability to protect herself and her children from abusive partners, suggests that domestic violence plays a role in defining the family‘s relationships. Although a close call, we reiterate that the superior court was tasked with making a probable cause determination, not a finding whether the child actually was in need of aid. The evidence is sufficient to establish probable cause to believe the child was in need of aid due to substantial risk of mental injury from continued domestic violence in the family.
V. CONCLUSION
We AFFIRM the superior court‘s conclusion that there was not probable cause to believe Cora was a child in need of aid under
WINFREE, Chief Justice.