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C.A.S., P.K.S. and B.S. v. State of Alaska (10/21/94), 882 P 2d 1266
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,
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of: )
) Supreme Court No. S-5064
C.A.S., DOB: 6/10/77 )
and ) Superior Court Nos.
P.K.S., DOB: 11/21/81 ) 3AN-90-483 CP and
) 3AN-84-319 CP
Minors Under the Age of )
Eighteen (18) Years. ) O P I N I O N
B.S., ) [No. 4138 - October 21, 1994]
STATE OF ALASKA, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Appearances: Blair McCune, Assistant
Public Defender, John S. Salemi, Public
Defender, Anchorage, for Appellant. Lisa
Nelson, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Appellee. Jacqueline Bressers,
Anchorage, for Guardian Ad Litem. Pamela
Finley, Legislative Affairs Agency, Juneau,
for Amicus Curiae.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice pro tem.*
COMPTON, Justice, dissenting.
Challenged in this case is a superior court order
directed to the mother of two children in state custody. The
order arose out of the following facts.
B.S. is the mother of C.A.S. (the daughter), born June
10, 1977, and P.K.S. (the son), born November 21, 1981. In
August 1990, the Department of Health and Social Services,
Division of Family and Youth Services took emergency custody of
the children. The division filed a child in need of aid (CINA)
petition on August 19, 1990; a guardian ad litem was appointed
for both children on August 21, 1990. The parties had stipulated
to the mother's inability to take care of the children.
On July 17, 1991, when she was fourteen years old, the
daughter left her foster home during the night. She subsequently
went to a hospital for treatment, alleging that she had just been
raped by an acquaintance. She further stated that she had been
molested twice in the past by her foster father. The division
responded by placing her and her brother in a new foster home.
A social worker for the division filed an affidavit
informing the court of the incident a week later. The mother
also learned of the incident, although the record is silent as to
how she learned.
On August 30, 1991, a social worker for the division
told the guardian ad litem that the mother was releasing
confidential information to her legislator and to the staffs of
the lieutenant governor's and governor's offices. The social
worker and guardian met with both children on September 4, 1991.
The guardian's affidavit states that the daughter "was quite
angry with her mother, and very embarrassed that so many people
now knew about her personal life." The daughter felt "like her
privacy ha[d] been invaded. [She wanted] virtually no contact
with her mother." The guardian's affidavit also declares that on
September 18, 1991, the mother took the son with her on a visit
to see a state representative and two men from the ombudsman's
On September 30, 1991, the guardian filed a petition
for a temporary restraining order, preliminary injunction, and
injunction to prevent the mother from releasing confidential
information to "individuals who are not parties to the case,"
namely, to the representative, the governor, the lieutenant
governor and their staffs.
Following a hearing, Judge Elaine Andrews entered the
order set forth below:
2. The mother may not take the
children, either or both of them, with
her when she seeks to petition to
redress her grievances in whatever
manner, without the specific permission
of the court to do so. She may not use
them in any way to petition her
government for redress.
3. The mother may petition her
government for redress, but may not
release the names of the children or
information, written or oral, generated
by the child in need of aid proceedings
without specific permission from the
court. She may complain in a generic
way, and she may give the initials of
the case caption and the case number,
both of which are public information,
which will allow an agency or legislator
to seek information if they desire to do
so from the court.
4. The mother shall exhaust her
remedies for grievances within the
normal channels available to her in the
circle of confidentiality. If that is
unsuccessful, she may come to the court
with a petition to release information
she feels she must release in order to
seek further help, and the court will
balance the equities in making a
decision about what to allow her to
release or not to release.
After the mother's motion for reconsideration was denied, she
A statutory amendment directly pertinent to this case
requires that all but the first sentence of paragraph two of the
order no longer be given prospective effect. AS 47.10 was
amended in 1994 by adding a new section, AS 47.10.092(a), which
provides that a parent in a CINA proceeding may disclose
confidential information to the governor, the lieutenant
governor, a legislator, and their staffs for use in their
The first sentence of paragraph two is based on the
right of the division and the guardian, rather than the mother,
to exercise physical control of the children. AS 47.10.084. In
the Matter of D.P., 861 P.2d 1163 (Alaska 1993). It is not
affected by AS 47.10.092(a), and no cogent argument has been made
that the court's enforcement of this right is illegal or an abuse
Except for the first sentence of paragraph two, the
order is VACATED.
COMPTON, Justice, dissenting.
Tentatively I agree with the court's conclusion that if
newly enacted AS 47.10.092(a) is applied to the facts of this
case, little of the order concerning release of information can
be sustained. However, the parties have not had an opportunity
to address the applicability of the statute to the case.
B.S., the minors' mother, has argued in a post-briefing
notice to the court that the issues in the case are not moot
because of the newly enacted statute. She suggests that "[i]f
this court wishes to have further briefing or argument on
mootness, [she] will be happy to provide it." The guardian ad
litem for C.A.S. and P.K.S. concurs, stating that "[t]he
amendment has no specific provision for retroactive application.
Other issues raised in the appeal remain unaffected by the
amendment." Neither the State of Alaska nor the Amicus Curiae
has responded. Despite the protestations of two of the parties
that the statute is not determinative of the issues raised, the
court sua sponte determines that the statute applies to the case.
The court then determines the rights of the parties based on the
Further, I do not believe that the issue of application
of AS 47.10.092(a) to the case is the end of the matter. Through
their guardian ad litem, C.A.S. and P.K.S. assert that the order
concerning release of information protected their right to
privacy under the Alaska Constitution. See Alaska Const. art. I,
22. Indeed, C.A.S. and P.K.S., as well as the superior court,
predicated the propriety of the order in part on the Alaska
Constitution. Alaska Statute 47.10.092(a) may infringe upon this
right. As with the applicability of the statute, the parties
have not had an opportunity to address the constitutionality of
An informed analysis of the statute might not affect
the present resolution of the case. However, if the statute were
declared unconstitutional, the rationale and the holding of the
case would be markedly different. The superior court balanced
the mother's right to redress of her grievances with her
children's right to privacy.3 Thus the parties should be
directed to address whether AS 47.10.092(a) applies to this case,
and if so, whether it impermissibly infringes on C.A.S.'s and
P.K.S.'s constitutional right to privacy.
The case before us stands in stark contrast to Gilmore
v. Alaska Workers' Compensation Board, ___ P.2d ___, Op. No. 4135
(Alaska, October 14, 1994). In Gilmore this court sua sponte
directed the parties to brief the constitutionality of the
statute under consideration, even though neither party had
questioned its constitutionality. Without ever addressing
whether Gilmore was erroneously denied compensation benefits
under the statute as we might have construed it, the court simply
held the statute unconstitutional. I disagreed with the court's
disregard of the doctrine of judicial abstention in that case,
but at least the court gave the parties the opportunity to brief
the issue it raised. Moreover, constitutionality of the statute
is directly implicated in this case, yet the court ignores the
I continue to disagree with the court's ad hoc approach
to the doctrine of judicial abstention. I firmly believe that we
should abstain from addressing constitutional issues when
resolution of those issues will not change the result of the
case. In a similar vein, I do not agree that this court should
resolve a case on any issue neither raised nor briefed. Yet
unlike its posture in Gilmore, here the court does not even deign
to solicit the parties' views on either the applicability of the
statute or its constitutionality. The inconsistency of the court
again presents the specter of arbitrariness and favoritism.
The superior court found it apparent from the pleadings
"that there has already been and will continue to be irreparable
harm to [C.A.S.] by the release of information by the mother,"
and "there may be irreparable harm to [P.K.S.] by his being
subjected to interviews and questioning by untrained persons
concerning problems he might have in foster care." These
findings are challenged by B.S. on procedural and substantive
grounds. However, the court evades the challenge, and the
consequences that may follow if it is unpersuasive, by applying
its unsolicited interpretation of the newly enacted statute. In
view of the possible consequences of this decision, the court
should not hesitate to examine the issues fully.
Gilmore's right to compensation benefits is surely
important. However, the right of a child whose life has been
found to have been irreparably damaged by her mother's disclosure
of personal, embarrassing, and arguably constitutionally private
information seems no less important. If briefing by the parties
was necessary in Gilmore, surely it is also necessary in this
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 AS 47.10.092(a) provides:
Notwithstanding AS 47.10.090, a
parent or legal guardian of a minor subject
to a proceeding under AS 47.10.010 -
47.10.142 may disclose confidential or
privileged information about the minor,
including information that has been lawfully
obtained from agency or court files, to the
governor, the lieutenant governor, a
legislator, the ombudsman appointed under AS
24.55, the attorney general, and the
commissioners of health and social services,
administration, or public safety, or an
employee of these persons, for review or use
in their official capacities. A person to
whom disclosure is made under this section
may not disclose confidential or privileged
information about the minor to a person not
authorized to receive it.
2 The second sentence of paragraph two, in addition to
conflicting with the new enactment, is so vague as to be
constitutionally infirm in so far as it relates to conduct which
does not involve physically controlling the children.
3. In Breese v. Smith, 501 P.2d 159 (Alaska 1972), we
examined the hair length regulation of a public school. In
striking the regulation as in conflict with the constitutional
right to liberty, we reiterated our position "that children are
possessed of fundamental rights under the Alaska constitution."
Breese, 501 P.2d at 167.