Jennifer L. v. State, Department of Health & Social Services, Office of Children's Services ( 2015 )

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Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
JENNIFER L., )
) Supreme Court No. S-15646
Appellant, )
) Superior Court Nos. 4AK-00001/
v. ) 00002/00003 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, OFFICE OF ) No. 7043 - August 28, 2015
CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Aniak, Douglas Blankenship, Judge.
Appearances: William T. Montgomery, Assistant Public
Advocate, Bethel, and Richard Allen, Public Advocate,
Anchorage, for Appellant. Janell Hafner, Assistant Attorney
General, and Craig W. Richards, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
The State’s Office of Children’s Services (OCS) took three minor children
into emergency custody, then sought a court order granting OCS temporary custody,
asserting there was probable cause to find the children in need of aid. A standing master
determined that no probable cause existed and recommended that the three children be
returned to their mother’s custody. The State objected to the master’s recommendation,
and over three weeks later the superior court reviewed and rejected it, finding that there
was probable cause. The mother filed this appeal, asking us to hold that masters have
the authority to return children to their homes without judicial review. Before the State
filed its brief, the superior court dismissed the underlying case, making this appeal moot.
We apply the public interest exception to the mootness doctrine and affirm
the superior court’s ruling. However, we also acknowledge the importance of avoiding
procedural delay in returning children home, and we refer this issue to the court’s
Advisory Committee on the Child In Need of Aid (CINA) Rules to consider how the
process may be improved.
II. FACTS AND PROCEEDINGS
Jennifer and her husband Adam are the parents of three minor children: a
daughter, Andrea, and two younger boys.1 The children are Indian children as defined
in the Indian Child Welfare Act (ICWA);2 their tribal affiliation is with the Village of
Lower Kalskag.
OCS was involved in the children’s lives for a decade, largely because of
the parents’ problems with alcohol. But the events leading up to this appeal mark the
first time OCS removed the children from their home. OCS did so after it received a
1
We use pseudonyms to protect the family’s privacy.
2
See 25 U.S.C. § 1903(4) (2012) (“ ‘Indian child’ means any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe”).
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report in late May 2014 that J.K., a 31-year-old man, punched the youngest boy while
drinking alcohol with Jennifer and her daughter Andrea, then 16.
OCS assigned the investigation to a social worker, who traveled to Lower
Kalskag in early June, visited the family’s home, and found both parents under the
influence of alcohol. He interviewed the parents, two of the children, and another
relative who was also an ICWA social worker. The OCS employee learned that J.K. was
alleged to be a sex offender, that J.K. was currently in a sexual relationship with Andrea,
that her parents often allowed J.K. to spend the night with her in their home, and that
Andrea was pregnant with J.K.’s child.
OCS removed the three children on June 11, and the next day it filed a
petition for temporary custody and for an adjudication that the children were in need of
aid. The superior court referred the matter to a standing master. The master set a
temporary custody hearing for June 14, heard evidence from a number of witnesses, then
continued the hearing to June 18 “to allow [Adam’s] attorney to be present.” The master
authorized OCS to retain temporary custody of the children in the meantime. At the June
18 hearing the parties presented no additional evidence, and on June 26 the master issued
a written order, finding no probable cause to believe that any of the three children were
children in need of aid. The master found that there was insufficient evidence to
determine the nature of J.K.’s alleged sexual offense, that Andrea’s relationship with J.K.
was not cause for removal since she was of the age of consent, and that while the parents
had made some poor choices, they had not neglected their other children. The master’s
order concluded that “the State must immediately return the . . . children to [Jennifer and
Adam].”
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The State did not return the children, but instead filed timely objections to
the master’s order with the superior court.3 It was not until July 11 that the superior
court put an oral decision on the record rejecting the master’s recommendation. In a
written decision and order distributed July 14, it also rejected Jennifer’s argument that
the master’s order should have taken effect without judicial review, citing the CINA
rules. On the merits of the recommendation, it found there was probable cause to believe
that two of the children were children in need of aid pursuant to AS 47.10.011(7)4 and
that all three were children in need of aid pursuant to AS 47.10.011(10).5 The superior
court therefore ordered that temporary custody remain with the State through the
adjudication hearing. However, on the State’s representations that it would assist the
family in developing a safety plan and that J.K. was presently incarcerated, the superior
court determined that “removal of the children from the parent’s home [was] no longer
3
As discussed further in this opinion, the master’s order for the children’s
return was “not binding until approved by a superior court judge,” making it in effect a
recommendation. See CINA Rule 4(b)(4); Alaska R. Civ. P. 53(d).
4
This subsection reads in part that “if a parent, guardian, or custodian has
actual notice that a person has been convicted of a sex offense against a minor within the
past 15 years, is registered or required to register as a sex offender under AS 12.63, or
is under investigation for a sex offense against a minor, and the parent, guardian, or
custodian subsequently allows a child to be left with that person, this conduct constitutes
prima facie evidence that the child is at substantial risk of being sexually abused.”
5
This subsection provides that a child may be found to be a child in need of
aid if “the parent, guardian, or custodian’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.”
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necessary to prevent imminent physical damage or harm,” and the children were returned
home.6
On July 29, before there were any further proceedings on removal or
termination of parental rights, Jennifer appealed the superior court’s temporary custody
decision. In her opening brief she takes issue with the superior court procedures on
emergency and temporary custody, asking that we “grant[] the master the authority,
without approval from the superior court, to order a child returned home” and to “allow
a parent to request the superior court to review a master’s order removing a child from
the home by the end of the next working day.” Less than a month after she filed her
opening brief, however, the State filed an unopposed motion in the superior court to
dismiss its case involving all three children, and the superior court granted the motion
in January 2015. The children remain with their parents.
III. STANDARDS OF REVIEW
“Because it is a matter of judicial policy, mootness presents a question of
law.”7 We apply our independent judgment when determining mootness.8 As for the
substantive issues on Jennifer’s appeal, we exercise our independent judgment “when
interpreting a civil rule” or statute.9 “We interpret statutes ‘according to reason,
6
See Matter of J.A., 962 P.2d 173, 176 (Alaska 1998) (stating that superior
court must consider the “totality of the circumstances” –– not just the isolated event that
resulted in emergency custody –– to determine “whether, at the time of the hearing,
probable cause exists to believe that the child is a child in need of aid”).
7
Peter A. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
146 P.3d 991, 993-94 (Alaska 2006).
8
Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska 2005).
9
S.S.M. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
(continued...)
-5- 7043
practicality, and common sense, taking into account the plain meaning and purpose of
the law as well as the intent of the drafters.’ ”10
IV. DISCUSSION
A. We Treat This Appeal As A Granted Petition For Review.
The State argues that Jennifer cannot appeal a temporary custody order
because it is not a “final judgment” reviewable under Alaska Appellate Rule 218(b)11 and
Alaska CINA Rule 21(a).12 An appealable order “must constitute a final judgment, such
that it ‘disposes of the entire case and ends the litigation on its merits.’ ”13 But in some
cases we have decided sua sponte to treat the appeal of a non-final order “as a petition
for review and [have decided] the questions presented to the same extent and with the
same effect as on appeal.”14
9
(...continued)
Servs., 3 P.3d 342, 344 (Alaska 2000).
10
Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011) (quoting Native Vill. Of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
11
“This rule does not permit an appeal to be taken in any circumstances in
which an appeal would not be permitted by [Appellate] Rule 202.” See Alaska R. App.
P. 202(a) (“An appeal may be taken to the supreme court from a final judgment entered
by the superior court . . . .”).
12
“An appeal of a final judgment or order, or a petition for review of an
interlocutory order or decision, may be taken subject to Appellate Rule 218 or other
appropriate appellate procedures.”
13
Husseini v. Husseini, 230 P.3d 682, 687 (Alaska 2010) (quoting Richard
v. Boggs, 162 P.3d 629, 633 (Alaska 2007)).
14
Id. (quoting Leege v. Strand, 384 P.2d 665, 666-67 (Alaska 1963)) (internal
quotation marks omitted). See generally Alaska R. App. P. 402 (providing petitions for
review of non-appealable orders or decisions).
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We follow that course here rather than deciding the appealability issue. We
treat Jennifer’s appeal as a granted petition for review 15 and decide the question
presented “to the same extent and with the same effect as on appeal.”16
B. This Case Is Moot, But We Review It Under The Public Interest
Exception To The Mootness Doctrine.
CINA proceedings advance in three stages that may occur over the course
of many months. First, OCS may take emergency custody of a child, but the superior
court must immediately hold a temporary custody hearing at which it determines whether
probable cause exists for believing the child is in need of aid.17 In later proceedings, the
court may adjudicate a child in need of aid if it finds by a preponderance of the evidence
that the child has been subjected to any of the twelve conditions described in
AS 47.10.011.18 As a final step the court may terminate the parent’s rights and
responsibilities with respect to the child, freeing the child for adoption or other
permanent placement, if it finds by clear and convincing evidence that all the conditions
15
See Alaska R. App. P. 402(b)(4) (stating that a petition for review w ill be
granted if “[t]he issue is one that might otherwise evade review, and an immediate
decision of the appellate court is needed for guidance or is otherwise in the public
interest”).
16
Husseini, 230 P.3d at 687.
17
See AS 47.10.142; AS 47.10.990(4) (defining “child in need of aid”).
18
The only relevant provisions in the instant case were AS 47.10.011(7)
(when parent has “actual notice that a person has been convicted of a sex offense against
a minor” and leaves child with that person) and AS 47.10.011(10) (when parent is
“substantially impaired by the addictive or habitual use of an intoxicant” and that use
“has resulted in a substantial risk of harm to the child”).
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of AS 47.10.088(a) have been met,19 and, in ICWA cases like this one, if it finds “by
evidence beyond a reasonable doubt, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child.”20 Jennifer’s appeal involves only the first
stage — the superior court’s probable cause determination for purposes of temporary
custody — as the case was dismissed before it went any further.
Dismissal of the case before adjudication or termination also means that
Jennifer’s appeal of the superior court’s probable cause determination is moot. “A claim
is moot if it has lost its character as a present, live controversy.”21 “If the party bringing
the action would not be entitled to any relief even if it prevails, there is no ‘case or
controversy’ ” to decide.22 As a general rule, a party “may not appeal a judgment in its
favor in order to challenge an interlocutory order.”23 A “ ‘naked desire for vindication’
19
See AS 47.10.088(a) (“(1) the child has been subjected to conduct or
conditions described in AS 47.10.011; (2) the parent . . . has not remedied the conduct
or conditions in the home that place the child at substantial risk of harm; or . . . has failed,
within a reasonable time, to [do so]; and . . . (3) the department has [made] reasonable
efforts”).
20
25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
21
Peter A. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
146 P.3d 991, 994 (Alaska 2006) (quoting Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d
518, 523 (Alaska 1993)).
22
Id.
23
Id.; see also Fairbanks Fire Fighters Ass’n, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (holding that union’s appeal of
“intermediate legal question” was moot after it obtained relief in superior court).
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does not save an otherwise dead controversy from mootness.”24 To survive a mootness
challenge, therefore, Jennifer must show that concrete relief would be available to her
if we reversed the probable cause determination or that the issue on appeal falls under
one of the exceptions to the mootness doctrine.
It is evident that Jennifer will receive no concrete relief if we reverse the
probable cause determination, as the children are in her custody and OCS no longer
seeks to be involved in the parent-child relationship. We conclude, however, that the
public interest in the legal issue she raises is significant enough to warrant our
consideration of this otherwise moot case.
We weigh various considerations when deciding whether to hear a moot
appeal under the public interest exception: “(1) whether the disputed issues are capable
of repetition; (2) whether the mootness doctrine, if applied, may cause review of the
issues to be repeatedly circumvented; and (3) whether the issues presented are so
important to the public interest as to justify overriding the mootness doctrine.”25 The
weight we give each of these factors is discretionary, and no one of them is dispositive.26
The question of whether a child should be promptly returned home upon
the recommendation of a standing master is a question important to the public interest,
and it may arise again.27 Resolution of the issue may affect a number of pending and
24
Peter A., 146 P.3d at 994 (quoting 13A CHARLES A LLAN W RIGHT , ET AL.,
FEDERAL PRACTICE & PROCEDURE § 3533, at 212 (2d ed. 1984)).
25
See In re Candace A., 332 P.3d 578, 579 n.2 (Alaska 2014) (quoting Peter
A., 146 P.3d at 996).
26
See Fairbanks Fire Fighters Ass’n, 48 P.3d at 1168.
27
See, e.g., In re Candace A., 332 P.3d at 579 n.2 (noting that “the question
of expert qualifications in ICWA cases is important to the public interest”); Peter A., 146
(continued...)
-9- 7043
future CINA cases.28 And in many of those cases, the superior court will likely proceed
with adjudication, mooting the probable cause determination and allowing the question
to evade review.29 For these reasons we conclude that the public interest exception to the
mootness doctrine applies.
C. Immediate Review Of Masters’ Decisions To Return Children Home
Is Necessary To Avoid Unreasonable Delay.
Jennifer argues that the CINA statutes and rules together entrust standing
masters with decisions about the placement of children, and masters should therefore
have the authority to order children returned home without waiting for judicial review
and confirmation. Underlying Jennifer’s argument is the problem of procedural delay.
27
(...continued)
P.3d at 996 n.30 (noting that interpretation of AS 47.10.011 is important to public
interest, particularly “the effect the availability of a non-offending parent willing and
able to care for the child may have on the adjudication determination”).
28
CINA Rule 4(b)(4) provides:
A master’s report is not binding until approved by a superior court
judge pursuant to Civil Rule 53(d) [defining master’s report] and paragraph
(f) [discussing objections to master’s recommendations] of this rule,
except: . . a master may enter orders without further approval of the
superior court pursuant to Civil Rule 53(b) and (c), and by paragraph (d)
of this rule; and . . . a master’s order of removal from the home is effective
pending superior court review.
(Emphasis added). See also CINA Rule 4(d). The rule provides nine circumstances in
which a master may take actions without further approval by a superior court judge.
They do not include the authority to return a child to his or her home.
29
See, e.g., Alyssa B. v. State, Dep’t of Health & Soc. Servs., Div. of Family
& Youth Servs., 165 P.3d 605, 610 (Alaska 2007) (holding that parent’s challenge to
superior court’s probable cause determination was moot in light of court’s later decision
adjudicating child in need of aid, because court had to make same findings at
adjudication stage but subject to higher standard of “preponderance of the evidence”).
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We agree that the 23-day wait in this case between the master’s recommendation and the
superior court’s order on review of it was unacceptable. The superior court recognized
this as well,30 and the delay appears to have been an aberration.
Jennifer’s appeal does, however, highlight an anomaly in the CINA rules’
treatment of orders for removal of children from their homes and orders for their return.
CINA Rule 4(b)(2)(A) provides that emergency or temporary custody hearings may be
referred to a master. CINA Rule 4(b)(4)(B) provides that “a master’s order of removal
from the home is effective pending superior court review.” Under CINA Rule 4(f), “[a]
master’s order removing a child from the home which is not stayed must be reviewed by
the superior court by the end of the next working day if a party so requests.” In short,
a master may order a child’s immediate removal from the home, the order takes effect
without judicial review, and the order must be reviewed by the superior court no later
than the next day if immediate review is requested. But a master’s order returning the
child to the home does not receive parallel treatment under the CINA rules; such an order
is simply one of those not otherwise mentioned in the rules, “not binding until approved
by a superior court judge” as provided by CINA Rule 4(b)(4). The CINA rules are clear
on this, and there was thus no error in the superior court’s decision that the master’s
recommendation that the children be returned home was not effective until the court had
reviewed it.
We are nonetheless troubled by the rules’ tacit acceptance of procedural
delay in this context. The CINA statutes identify two complementary goals. Alaska
Statute 47.10.005 provides that “[t]he provisions of this chapter shall be liberally
construed to . . . achieve the end that a child coming within the jurisdiction of the court
30
The superior court wrote in its order rejecting the master’s recommendation
that it would “work closely with the standing masters and staff to ensure more prompt
determinations are made in the future.”
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under this chapter may receive the care, guidance, treatment, and control that will
promote [1] the child’s welfare and [2] the parent’s participation in the upbringing of the
child to the fullest extent consistent with the child’s best interests.”31 CINA Rule 4(b),
by authorizing the master to order a child’s immediate removal from the home without
further judicial review, promotes the first goal, but perhaps at the expense of the
second.32 And “the ‘right to the care and custody of one’s own child is a fundamental
right recognized by both the federal and state constitutions’ ”33 — “one of the most basic
31
See also AS 47.05.060 which identifies the purpose of Title 47 as:
[T]o secure for each child the care and guidance, preferably
in the child’s own home, that will serve the moral, emotional,
mental, and physical welfare of the child and the best
interests of the community; [and] to preserve and strengthen
the child’s family ties unless efforts to preserve and
strengthen the ties are likely to result in physical or emotional
damage to the child, removing the child from the custody of
the parents only as a last resort when the child’s welfare or
safety or the protection of the public cannot be adequately
safeguarded without removal.
32
We note the legislative command in AS 47.10.082 that “[i]n making the
dispositional order under AS 47.10.080(c), the court shall keep the health and safety of
the child as the court’s paramount concern.” But the dispositional order follows a finding
that the child is in need of aid. AS 47.10.080(c) (“If the court finds the child is a child
in need of aid, the court shall . . .”). After a CINA finding, the child’s health and safety
must be “the court’s paramount concern.” But before such a finding, the statutory
scheme does not give different weigh to the goals identified in AS 47.10.005: promoting
“the child’s welfare and the parent’s participation in the upbringing of the child to the
fullest extent consistent with the child’s best interests.”
33
Seth D. v. State, Dep’t of Health & Soc. Servs., Office of Children Servs.,
175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska
2001)).
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of all civil liberties.”34
Subsections (d) and (e) of AS 47.10.142 set out the procedures governing
emergency custody and temporary placement. They contemplate that a temporary
custody hearing will occur “immediately, and in no event more than 48 hours after [the
court is] notified” that OCS has taken emergency custody of a child.35 Continuances are
allowed, but only “on a showing of good cause” by the parent or guardian.36
“[R]egardless of whether a continuance is granted,” the court must “[a]t the first hearing
. . . make a preliminary determination of whether continued placement in the home . . .
would be contrary to the welfare of the child”; if it would not, “the court shall return the
authority to place the child to the child’s parent or guardian pending a temporary custody
hearing.”37
At the temporary custody hearing the court must “determine whether
probable cause exists for believing the child to be a child in need of aid”; if probable
cause exists, the court “shall order the child committed to the department for temporary
placement” or order the child’s return to the parents subject to OCS supervision.38 “If
the court finds no probable cause, it shall order the child returned to the custody of the
child’s parents or guardian.”39
We read these statutes as contemplating an especially expeditious process,
34
Id. at 1227-28; see AS 47.05.065 (delineating parents’ “rights and
responsibilities relating to the care and control of their child while the child is a minor”).
35
AS 47.10.142(d).
36
Id.
37
Id.
38
AS 47.10.142(e).
39
Id.
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one in which the court makes a decision and contemporaneously orders its
implementation, regardless of whether the child is committed to OCS’s custody or
returned to the family home. They do not contemplate what is essentially a two-tiered
system for return orders: first a hearing before a master resulting in a master’s
recommendation, and then, in time, review and final implementation by a superior court
judge.
Through the CINA rules, we have superimposed on the statutory process
the superior court’s authority to delegate certain judicial tasks to a master.40 In doing so
we have exercised our constitutional authority to regulate “practice and procedure in civil
and criminal cases in all courts,”41 with the goal of promoting judicial efficiency. While
substantive law which “creates, defines, and regulates rights” is the domain of the
legislature, prescribing the method of enforcing rights falls to the procedural rulemaking
power of the judiciary.42 But we have recognized that procedural rules can affect
substantive rights, and when they do we must be careful not to confuse “the concerns that
led to the establishment of judicial rulemaking power” with “matters of public policy
properly within the sphere of elected representatives.” 43 Children’s welfare and the
40
CINA Rule 4(a) (“The presiding judge may appoint a standing master to
conduct any or all of the CINA proceedings listed in subparagraph (b)(2).”); CINA Rule
4(b)(2) (“The following proceedings may be referred to a master: (A) emergency or
temporary custody hearings . . . .”).
41
Alaska Const. art. IV, § 15.
42
See Wade v. City of Anchorage, 439 P.2d 793, 794 (Alaska 1968).
43
Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1042-43 (Alaska 1981); see
also Leege v. Martin, 379 P.2d 447, 450 (Alaska 1963) (“The administration of justice
is the day to day business of the courts; they are better equipped than a legislature to
know the most effective and efficient methods of conducting that business.”).
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parent-child relationship are particularly infused with concerns of public policy.44 This
requires that we be especially attentive to the effects of procedural rulemaking in cases
like this one.
The CINA rules’ provision for the delegation of authority from superior
court to master is important to the efficient functioning of the courts. But it is not a
reason for inordinate delay in cases in which children should be returned to their homes.
While we decline “to rewrite the rules of practice from the bench,”45 we acknowledge the
importance of this issue, refer it to the CINA Rules Committee, and make the following
observations for the committee’s consideration.46
The procedural deficiency at the center of this case, as we see it, was not
that the master could not order the immediate return of the children to their home but
44
See AS 47.05.065 (containing legislative findings on parents’ rights and
responsibilities relating to their minor children; state policy with regard to families,
children, and the state’s treatment of children in its custody and care; and studies
regarding children’s attachment and need for permanence); Cooper v. State, 638 P.2d
174, 178 (Alaska 1981) (“Children in need of aid proceedings are intended to promote
an important public interest: the welfare of children.”).
45
Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 793 (Alaska 1981); see also
Buchanan v. State, 561 P.2d 1197, 1209 (Alaska 1977) (“We are of the view that if
discovery is to be expanded beyond the provisions presently contained in our Rules of
Criminal Procedure, [it is] more appropriate that such change come through amendment
of our existing rules of procedure after full study by this court’s Standing Advisory
Committee on Criminal Rules, the bench and the bar.”).
46
See, e.g., State v. Carlin, 249 P.3d 752, 763 n.60 (Alaska 2011) (referring
matter of substitution of parties in a criminal case to the Standing Advisory Committee
on Appellate Rules and noting “the thoughtful consideration of the issue by the
Washington Supreme Court”); Irby v. Fairbanks Gold Min., Inc., 203 P.3d 1138, n.41
(Alaska 2011) (referring matter of waiver of peremptory challenges to the Standing
Advisory Committee on the Rules of Civil Procedure); Cole v. State Farm Ins. Co., 128
P.3d 171, 172 n.2 (Alaska 2006) (referring matter of identifying partial, final judgments
to the Appellate Rules Committee).
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rather that the master’s order was not immediately reviewed by the superior court judge.
Immediate review would be consistent with the expeditious process contemplated by the
statute, AS 47.10.142(d) and (e). As pointed out above, under our CINA rules parties
have the right to request that an order removing children from the home be reviewed
immediately (“by the end of the next working day”),47 but there is no corresponding right
for orders returning the children home. Whether the master’s order is immediately
effective or not, we do not see why, in this important context, the rules should not
provide the same access to judicial review. We also note that there may be helpful
parallels in civil commitment proceedings, where an analogous liberty interest is at
stake.48
Pending revisions to the governing rules, when referring CINA matters to
masters, superior courts should exercise their authority under Civil Rule 53 and CINA
Rule 4(b) to include in the orders of reference a requirement for expedited review of any
order for returning a child to the parents’ custody.49
47
CINA Rule 4(f)(3).
48
For initial involuntary commitment proceedings, the legislature has
instituted strict time limits on decisions and their review: “Within 48 hours after the
completion of the [initial] screening investigation, a judge may issue an ex parte order
orally or in writing, stating that there is probable cause to believe the respondent is
mentally ill . . . . The court shall confirm an oral order in writing within 24 hours after
it is issued.” AS 47.30.700(a).
49
See Civil Rule 53(b) (“The order of reference to the master may specify or
limit the master’s powers and may direct the master to report only upon particular issues
or to do or perform particular acts or to receive and report evidence only and may fix the
time and place for beginning and closing the hearings and for the filing of the master’s
report.”); CINA Rule 4(b) (“An order of reference specifying the extent of the master’s
authority and the type of appointment must be entered in every case assigned to a
master.”).
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V. CONCLUSION
We AFFIRM the superior court’s temporary custody order. We refer the
issue of procedural delay discussed above to the CINA Rules Committee.
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