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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5770
Appellant, ) Trial Court No. 4FA-94-171CP
)
v. ) O P I N I O N
)
E.E., )
)
Appellee. ) [No. 1464 - March 15, 1996]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Richard D.
Savell, Judge.
Appearances: Karla Taylor-Welch, D.
Rebecca Snow, Assistant Attorneys General,
Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant. Gina M.
Tabachki, Assistant Public Defender,
Fairbanks, and John B. Salemi, Public
Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
E.E., a minor, was adjudicated a delinquent after
admitting to a petition alleging that he had engaged in conduct
that would have amounted to manslaughter if committed by an
adult. Following a disposition hearing, Superior Court Judge
Richard D. Savell ordered E.E. committed to the custody of the
Alaska Department of Health and Social Services (the department)
and placed
on probation under the department's supervision for a period of
two years, in accordance with AS 47.10.080(b)(3). In ordering
this disposition, the superior court specifically directed that
"[t]he child cannot be moved from his [current] placement . . .
without a court order unless the parties, in consultation with
treatment providers, otherwise agree." The superior court
further directed that selection of E.E.'s therapist be made by
E.E.'s attorney and guardian ad litem and that "[t]he therapist
will determine the scope and amount of therapy the child needs."
The state appeals, contending that the superior court had no
authority to direct E.E.'s placement or to delegate to persons
outside the department any authority to make treatment decisions
on E.E.'s behalf. We reverse.
As we recently pointed out in R.I. v. State, 894 P.2d
683, 686 (Alaska App. 1995), "The superior court does not have
unfettered dispositional power in children's cases; rather, the
court's authority arises from, and is limited by, statute." See
also In re E.M.D., 490 P.2d 658, 660 (Alaska 1971). The
pertinent statute here is AS 47.10.080(b), which provides the
superior court with three basic choices in the disposition of a
delinquent child: commitment to the department for institutional
detention (AS 47.10.80(b)(1)); release on probation to a parent
or other suitable person, under the supervision of the department
(AS 47.10.080(b)(2)); or release on probation to the custody of
the department for placement in a nondetention setting (AS
47.10.080(b)(3)). When the court deals with a delinquent child,
it must select among these three options. See E.T. v. State, 879
P.2d 363, 366 (Alaska App. 1994) and Alaska Delinquency Rule
23(d).
All parties and the court in this case agreed on the
third option, that is, release on probation to the custody of the
department for non-institutional placement. This choice is
covered by AS 47.10.080(b)(3), which authorizes the court to
order the minor committed to the
department and placed on probation, to be
supervised by the department, and released to
the minor's parents, guardian, other suitable
person, or suitable nondetention setting such
as a family home, group care facility, or
child care facility, whichever the department
considers appropriate to implement the
treatment plan of the predisposition report;
if the court orders the minor placed on
probation, it may specify the terms and
conditions of probation; the department may
transfer the minor, in the minor's best
interests, from one of the probationary
placement settings listed in this paragraph
to another, and the minor, the minor's
parents or guardian, and the minor's attorney
are entitled to reasonable notice of the
transfer[.]
The language of this provision makes it clear that when
a delinquent child is committed to the department for
probationary supervision, the exercise of parental powers becomes
the responsibility of the department, not the court: the minor is
to be placed in "whichever [nondetention setting] the department
considers appropriate[.]" AS 47.10.080(b)(3). Thus, having
decided to commit E.E. to the department under subsection (b)(3),
the superior court
was not at liberty to direct the
Department to place [him] at a particular
residential facility. Rather the decision of
the minor's placement . . . is entrusted to
the discretion of the Department. The
superior court may review the Department's
decision for abuse of that discretion, but
the court may not usurp the Department's
decision-making function or substitute its
own view of the minor's best interests.
Department of Health and Social Services v.
A.C., 682 P.2d 1131, 1134-35 (Alaska App.
1984).
E.T., 879 P.2d at 366.
Although the superior court does have authority to
review the department's placement decisions, the disposition
order in the present case cannot be characterized as an exercise
of the court's review authority. E.E. was in the custody of
foster parents in Fairbanks at the time of the disposition
hearing. The predisposition report indicated that the department
felt this to be "a desirable placement," but also felt E.E.'s
"treatment needs would best be met in a residential setting."
The department thus anticipated moving E.E. to a residential
treatment program. But while the department clearly contemplated
a move, it had not decided on the precise move to make. The
department had evidently not yet formally authorized a change in
placement, and no firm commitment or arrangements to move E.E. to
any specific new home or facility had been made.
Accordingly, at the disposition hearing, Judge Savell
was not called upon to review any specific decision to change
E.E.'s placement. Rather, the judge issued a disposition order
that attempted to head off a decision that he expected the
department to make in the near future. Judge Savell did not
purport to find that the department had abused its discretion in
choosing a specific placement; instead, he ruled that the current
placement was in E.E.'s best interest, that any decision to
change placement would amount to an abuse of discretion, and that
the department therefore had no discretion to change placement
without consent of all parties or a prior court order. The
disposition order effectively divested the department of its
statutory authority to determine the appropriate nondetention
setting for E.E.1
Perhaps because Judge Savell recognized that a
preemptive strike of this type might be beyond the ordinary scope
of the court's authority in a delinquency proceeding, the judge
expressly included in E.E.'s disposition order a finding that
E.E. was not merely a delinquent minor, but also a child in need
of aid (CINA). Yet this finding did not expand the superior
court's powers of disposition. For the superior court enjoyed no
greater authority to dictate the department's placement or
treatment of children in need of aid than it did to dictate
placement or treatment of delinquent minors. In the context of
CINA proceedings, the supreme court has expressly held that
"[t]he legislature has committed placement decisions to the
Department's discretion. The various statutory provisions
indicate that the Department, not the court, has expertise on the
availability and suitability of placements for minors in its
legal custody." In re B.L.J., 717 P.2d 376, 380 (Alaska 1986)
(footnote omitted); cf. In re A.B., 791 P.2d 615, 622-24 (Alaska
1990). Hence, the disputed provisions of E.E.'s disposition
order are not validated by the superior court's CINA finding.
Judge Savell also sought to justify his decision to
curtail the department's future placement and treatment options
by referring to the unique nature of E.E.'s case. The judge made
clear his belief that, in view of E.E.'s unusual background and
treatment needs it would be an abuse of discretion for the
department to move E.E. from his current placement to a
residential group setting. Upon reviewing E.E.'s case history,
the judge also found that the department had repeatedly neglected
E.E.'s case; based on this history, the judge expressed
misgivings about the department's ability to make future
decisions that would be in E.E.'s best interests. In entering
the disputed order, Judge Savell specifically found that "[b]ased
on the child's history of abuse and neglect, his adjudication,
and the limited time available to provide him with essential
treatment services, the court is compelled to make specific,
restrictive, and protective findings."
Judge Savell's misgivings about the department's
ability to further E.E.'s best interests are certainly
understandable, and the judge's keen desire to intervene in
E.E.'s best interests is highly commendable. We must
nevertheless conclude that Judge Savell's concern for E.E.'s best
interests did not empower the court to exercise powers that have
been expressly reserved to the department; for "notions of
benevolent protective policies cannot be used to validate
departures from positive law relating to the adjudicative and
dispositive phases of children's proceedings." In re E.M.D., 490
P.2d at 660.
By no means do existing statutes leave the superior
court powerless to ensure that the department's future treatment
and placement decisions meet E.E.'s best interests. E.E. and his
attorney are entitled to reasonable advance notice of any
decision by the department to transfer him. AS 47.10.080(b)(3).
Upon receiving notice, E.E. has the right to request judicial
review of the department's decision. AS 47.10.080(f). The court
may preserve the status quo pending review;2 if the court
ultimately determines that the department abused its discretion,
it is empowered to set the department's decision aside. See In
re E.T., 879 P.2d at 366; Department of Health and Social Servs.
v. A.C., 682 P.2d 1131, 1134-35 (Alaska App. 1984).
What the court did in the present case, however, was
beyond the proper scope of judicial authority. The superior
court erred in issuing a disposition order that precluded the
department from exercising its statutory duty to make decisions
concerning E.E.'s placement and that transferred to others the
department's statutory duty to make treatment decisions. The
portions of the disposition order restricting the department's
placement and treatment powers must be stricken.3
This case is REMANDED for modification of the
disposition order as directed in this opinion.
_______________________________
1. Decisions as to E.E.'s treatment were likewise entrusted to the department
upon E.E.'s commitment under AS 47.10.080(b)(3). In this regard, AS
47.10.084(a) expressly provides that a commitment to the department under
AS 47.10.080(b)(3) confers on the department "the responsibility of
physical care and control of the child, the determination of where and with
whom the child shall live, the right and duty to protect, train, and
discipline the child, and the duty of providing the child with food,
shelter, education, and medical care." The superior court had no authority
to substitute its decisions for the department's with respect to E.E.'s
future treatment or to delegate to E.E.'s attorney or guardian ad litem the
authority to exercise the department's treatment responsibilities.
2. We note, in this regard, the state's acknowledgement that the superior
court "could have established a minimum period of notice to the parties
before the department made any major, non-emergency changes in placement or
treatment."
3. In addition to challenging the actual directives in the disposition order
that restrict the department's placement and treatment powers, the state
appears to argue that various factual findings within the order addressing
E.E.'s future best interests are also unauthorized. However, except
insofar as these factual findings are incorporated as directives in the
court's disposition order, they will have no binding effect on the
department. Nor will they have preclusive effect on judicial review of
future departmental decisions, for review of future decisions must
necessarily be governed by the totality of the circumstances at the time of
review, not at the time of disposition. Standing alone, without the force
of an order compelling or precluding departmental action, the disputed
factual findings merely reflect the court's current appraisal of E.E.'s
situation; the court's current views may fairly be construed as
recommendations by the court for E.E.'s future placement and treatment. As
such, these findings are not inappropriate; they may, indeed, provide the
department with useful guidance in its supervision of E.E.'s case.
