as: 991 P.2d 214)
Court of Alaska.
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.
Denied Dec. 14, 1999.
In a child protection proceeding, the Superior Court, Third Judicial
District, Kenai, Harold M. Brown, J., adjudicated mother's six boys
as children in need of aid (CINA), and she appealed.
The Supreme Court, Bryner J., held that: (1) state failed
to prove that children were in need of aid at
the time of adjudication, as opposed to eight months earlier,
but (2) trial court satisfied the appointment of counsel requirements
imposed by a CINA rule, and those imposed by the
Indian Child Welfare Act (ICWA).
a children in need of aid (CINA) case, Supreme Court
will overturn the trial court's findings of facts if they
are clearly erroneous.
the trial court's findings comport with the requirements of the
children in need of aid (CINA) statutes and rules is
a question of law reviewed de novo.
question at the time of an adjudication in a children
in need of aid (CINA) proceeding is whether the child
is presently at risk, not whether a risk existed some
months earlier; when the state takes protective custody of a
child and files a petition for adjudication, it asserts that
adjudication is necessary because the child presently needs state assistance.
state presented evidence that children were in need of aid
eight months prior to the time of adjudication, it did
not prove that they were children in need of aid
(CINA) at the time of adjudication, thus precluding determination that
children were CINA; trial court did not ask or answer
the critical question of whether the children remained at risk
of serious harm based on the emergency situation eight months
earlier, and state did not prove that mother posed any
appreciable risk to her children at the time of the
adjudication. AS 47.10.010(a)(6), 47.10.080 (1997).
advising mother of her right to counsel and mailing her an application
form, trial court satisfied the appointment of counsel requirements imposed
by a children in need of aid (CINA) rule, and those imposed by the Indian
Child Welfare Act (ICWA). Indian Child Welfare Act of 1978, § 102(b),
25 U.S.C.A. § 1912(b); Child in Need of Aid Rule 10(b)(2).
children in need of aid (CINA) proceedings, the better practice is for
courts to recognize the crucial difference that an early appointment of
counsel can make, and to remain sensitive to the potentially drastic consequences
of unnecessary delay. Indian Child Welfare Act of 1978, § 102(b),
25 U.S.C.A. § 1912(b); Child in Need of Aid Rule 10(b)(2).
Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant.
Laura C. Bottger, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI,
V.D. appeals an order adjudicating
her six boys as children in need of aid under former AS 47.10.010(a)(6).
The superior court determined that the children were in need
of aid because V.D. left them with friends who, after three months, could
no longer afford to care for them. V.D. also claims that she
was denied her right to counsel and that the state failed to make active
efforts to prevent the breakup of her Indian family. We reverse
because we conclude that the state failed to prove that V.D.'s children
were in need of aid at the time of the adjudication hearing.
On April 9, 1997, Roy Lenny Frye,
a social worker for the Division of Family and Youth Services (DFYS) in
Kenai, took emergency custody of V.D.'s six children.
[FN1] In January 1997 V.D. had left the children with a close friend,
Theresa Larson, and her husband, George, who had agreed to keep them for
a month while V.D. found work and a home in Florida. Because
of money problems, V.D. did not retrieve her children as planned; they
stayed with the Larsons through February and March.
The children are Indian children within the definition of the Indian Child
Welfare Act. See
25 U.S.C. § 1903 (1994).
In early April V.D. sent money
for the four youngest children to fly to Seattle accompanied by her friend
[FN2] V.D. also purchased bus tickets for the children to travel
with Bowen from Seattle to Florida. But the bus tickets did not
arrive in Seattle on time, and the Larsons had to raise money to fly the
children back to Alaska. Later that week, the Larsons brought
the children to DFYS, stating that they could no longer afford to care
for them without state assistance.
The two oldest children, who were in high school, planned to remain in
Kenai until the school year ended.
Frye took custody of V.D.'s six
boys and filed a petition requesting the superior court in Kenai to adjudicate
them as children in need of aid (CINA). The court held a temporary custody
hearing on April 10, which V.D. attended by telephone
from Florida. The court found probable cause to believe that
the children were in need of aid because V.D. lived out of state and the
Larsons were no longer willing or able to care for them. Without
inquiring into the feasibility of immediately reuniting V.D. with her
family, the court authorized placement of the children with relatives
in Unalakleet and Nikiski.
One of these foster placements was unsuccessful, and the six children
were eventually placed in five different foster homes.
At the state's prompting, the
court then advised V.D. of her right to counsel. After V.D.
said she wanted an attorney, the trial court informed her that she would
need to fill out and submit a form that the court would send her. It
then scheduled an adjudication hearing for May 23.
Three days later, the court sent
V.D. a form to establish her financial eligibility for court-appointed
counsel; the form was returned for insufficient address, and the
court sent it again on April 28. Because V.D. had not yet
returned the form by May 23, the court postponed the adjudication hearing
until June 27. When V.D.'s paperwork still had not arrived
by then, the court provisionally appointed a public defender. After
several further continuances, the court held the adjudication hearing
in December 1997, eight months after the state took custody of the children.
At the adjudication hearing, the parties and the court focused almost
exclusively on the situation that existed when the state assumed emergency
custody--that is, V.D.'s conduct in leaving the children with the Larsons
for three months. Based on evidence that merely elaborated
on these earlier circumstances, the court ruled that the children were
in need of aid because their mother had physically neglected them. The
court scheduled a disposition hearing and ordered the children to remain
in state custody pending disposition.
The court entered a formal written order confirming its December 1997
adjudication ruling on March 6, 1998.
Following disposition, V.D. filed
a CINA case, we will overturn the superior court's findings of facts if
they are clearly erroneous.
[FN5] Whether the trial court's findings comport with the requirements
of the CINA statutes and rules is a question of law that we review de
See R.J.M. v. State,
Dep't of Health & Social Servs.,
79, 84 (Alaska 1999).
See E.M. v. State, Dep't
of Health & Social Servs.,
959 P.2d 766, 768 (Alaska 1998).
the December adjudication hearing the superior court found that V.D. had
neglected her children by leaving them with the Larsons and that they
were therefore children in need of aid under former AS 47.10.010(a)(6).
[FN7] Because the parties focused on whether the children needed aid when
the state took custody in April, the court based its adjudication order
on the children's status at that time. It heard almost no
evidence concerning their need for assistance--or V.D.'s ability to provide
for them--at the time of the adjudication hearing.
Former AS 47.10.010(a)(6) (1996), which applies to this case, provides
for entry of a CINA adjudication "when the court finds the minor
to be a child in need of aid as a result of ... the child having suffered
substantial physical abuse or neglect as a result of conditions created
by the child's parent, guardian, or custodian."
In our view, this approach is problematic. When the state
takes protective custody of a child and files a petition for adjudication,
it asserts that adjudication is necessary because the child needs state
assistance. It follows that the relevant question at adjudication
should be whether the child is presently at risk, not whether a risk existed
some months earlier.
The present-tense wording of
our CINA adjudication statutes supports this proposition. For
example, former AS 47.10.010(a)--which applies to this case--provides
for adjudication "when the court finds the minor to
be a child in need
of aid." [FN8]
Likewise, former AS 47.10.080 directs the court, upon concluding
an adjudication hearing, to "enter a judgment that the child is
or is not a child in
need of aid." [FN9]
This statutory language plainly calls for the court to base its
adjudication orders upon proof of a present need for state intervention.
Former AS 47.10.010(a) (1996) (emphasis added).
Former AS 47.10.080(a) (1996) (emphasis added). The focus
on present conditions is equally explicit in the section authorizing courts
to enter a termination order "upon a showing in the adjudication
by clear and convincing evidence that there
is a child in need
of aid." Former AS 47.10.080(c)(3) (1996) (emphasis added).
Our case law reinforces this plain meaning. In D.H.
v. State, Department of Health and Social Services,
for example, we upheld a CINA adjudication based on proof that a child's
mother had neglected her between the time the state took custody and the
adjudication hearing months later.
[FN10] Moreover, in In
re J.A. we stated in
the setting of a temporary custody hearing that the trial 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 *217
child in need of aid." [FN11]
These holdings imply that the relevant inquiry at adjudication is
whether the child is then in need of aid as a result of conduct alleged
in the petition.
See D.H. v. State, Dep't
of Health & Social Servs.,
929 P.2d 650, 652-54 (Alaska 1996).
962 P.2d 173, 176 (Alaska 1998) (emphasis added).
Our recent decision in O.R.
v. State, Department of Health and Social Services
adds specific guidance for cases like V.D.'s, where the CINA adjudication
is based on physical neglect.
[FN12] We held in O.R.
establish CINA status based on physical neglect under former AS 47.10.010(a)(6),
the state need not prove that a child has actually suffered substantial
[FN13] Noting that neglect occurs when a parent's failure to act
places a child at risk of substantial physical harm, we stated that "the
emphasis of the [CINA] inquiry is on the possibility of harm to the child
due to neglectful parental conduct, not on the harm itself." [FN14]
We further emphasized that adjudication under subsection (6) will
be warranted when "parental conduct causing the potential for harm
suffices to trigger state action." [FN15]
See O.R. v. State, Dep't
of Health & Social Servs.,
968 P.2d 93 (Alaska 1998).
In the present case, the court
focused on the situation as of April 1997, when the state took custody,
and determined that the resulting risk of harm
sufficed to trigger state intervention. But the court did
not ask or answer the critical question whether V.D.'s children remained
at risk of serious harm based on the emergency situation eight months
before. And our review of the record establishes that the
state failed to prove that V.D. posed any appreciable risk to her children
at the time of adjudication.
Frye testified that he had heard allegations that V.D. had a drinking
problem, but he conceded that V.D.'s inability to provide care, not her
substance abuse, was the primary basis for taking custody and petitioning
for CINA adjudication. V.D. had acknowledged having a drinking
problem, though she claimed she did not neglect her children as a result.
The state did not seek to establish the nature and extent
of V.D.'s problem, and presented no evidence indicating that her substance
abuse had ever interfered with her parenting. Indeed, a DFYS
investigation of V.D.'s home shortly before she left for Florida had found
no child protection concerns. Moreover, in entering its adjudication
order, the trial court gave no indication that it had considered this
issue to be significant.
Comments made at the hearing
by counsel and the trial court suggest that V.D. was unprepared to resume
immediate custody of her children. But V.D.'s problems
with immediate custody were largely due to her separation from her children
during the months preceding adjudication. During that time,
the state had requested a home study in Florida as required under the
Interstate Compact on the Placement of Children.
[FN17] Florida would not agree to accept the transfer until V.D.
secured a larger house, obtained a car, and underwent substance abuse
and psychological evaluation and treatment. Furthermore, once the state
had assumed custody of her children, V.D. ceased receiving social security
benefits on their behalf.
These problems posed no insurmountable
obstacle to a prompt reunification. The conditions imposed by Florida
applied only in the event of an interstate transfer while the children
remained wards of the state.
[FN18] And V.D.'s precarious financial condition would have been
resolved by the return of her children; the children's social security
payments would have almost doubled her monthly income of $900. In
any event, her indigence could not itself justify a denial of custody.
See In re S.A.,
912 P.2d 1235, 1239 (Alaska 1996); F.T.
v. State, 862 P.2d
857, 861 (Alaska 1993).
In short, while the state presented
evidence indicating that the children were in need of aid eight months
earlier, it did not prove that they were children in need of aid at the
time of adjudication. Since the state failed to establish
a present potential for harm sufficient to warrant its continued intervention,
we hold that the superior court *218
erred in concluding that V.D.'s children were children in need of aid.
Although V.D. requested an attorney
at the temporary custody hearing in April 1997, the trial court failed
to appoint counsel until June 27. In the interim, apart from
sending V.D. an application form, the court took no active measures to
ensure that her request for appointed counsel would be honored. Indeed,
when the court failed to receive V.D.'s application in time for the May
23 hearing, it simply canceled the hearing and postponed the case until
late June. V.D. contends that the court's inaction deprived her of her
right to counsel.
CINA Rule 10(b)(2), which governs
temporary custody proceedings, provides that "[t]he court shall advise
the parties of their right to counsel, including the right to court-appointed
counsel if applicable." The Indian Child Welfare Act
(ICWA) similarly requires court-appointed counsel in any removal proceeding
in which the court determines that a parent is indigent.
[FN20] Neither provision requires immediate judicial action upon
a request for court appointment. Thus, by advising V.D. of
her right to counsel and mailing her an application form, the trial court
complied with the letter of these requirements.
25 U.S.C. § 1912(b) (1994).
But the trial court's minimal
response to V.D.'s request for counsel is nonetheless disturbing. The
circumstances that enmeshed V.D. and her children at the time of the April
hearing on emergency custody made it obvious that V.D. was impoverished
and would likely qualify for appointed counsel. These same
circumstances suggested an urgent need for representation to explore the
feasibility of prompt reunification. By allowing a lengthy
delay before appointing counsel, the court effectively deprived V.D. of
the opportunity to request a timely, adversarial review of its probable
cause and temporary placement decisions.
[FN21] This delay also worked against ICWA's fundamental goal of
promoting stability and security in Indian families. [FN22]
And more pragmatically, V.D.'s inability to secure prompt representation
prevented her from exploring practical solutions that might have avoided
protracted, costly, and potentially destructive CINA litigation.
CINA Rule 10(e) (providing for review pending adjudication).
25 C.F.R. § 23.3 (1999).
As we have already observed, the
CINA rules and ICWA did not clearly require an earlier order appointing
counsel. But neither did they preclude the trial court from
exercising its broad discretion by appointing counsel immediately or,
at a minimum, by taking more active steps to ensure a timely appointment.
We urge courts in the future to recognize the crucial difference
that an early appointment of counsel can make in such cases and to remain
sensitive to the potentially drastic consequences of unnecessary delay.
V.D. separately claims that the
trial court erred in finding that DFYS made active and reasonable efforts
to provide remedial and rehabilitative services to prevent the breakup
of her Indian family. Because we have concluded that the error
in finding the children in need of aid requires reversal, we need not
address this claim.
We REVERSE the superior court's finding that V.D.'s children were children
in need of aid.
991 P.2d 214