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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. V.D. v. State, Dept. of Health and Social Services (11/12/99) sp-5206

V.D. v. State, Dept. of Health and Social Services (11/12/99) sp-5206

     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, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.


V.D.,                         )
                              )    Supreme Court No. S-8980
               Appellant,     )
                              )    Superior Court Nos.
          v.                  )    3KN-97-00049/50/51/52/53 CP
SERVICES,                     )    [No. 5206 - November 12, 1999]
               Appellee.      )   

          Appeal from the Superior Court of the State of
          Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.

          Appearances:  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 Appellee.

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.

          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
          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. [Fn. 1]  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.
          In early April V.D. sent money for the four youngest
children to fly to Seattle accompanied by her friend Kenneth Bowen.
[Fn. 2]  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.
          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. [Fn. 3] 
          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. [Fn. 4]
          Following disposition, V.D. filed this appeal.
     A.   Standard of Review
          In a CINA case, we will overturn the superior court's
findings of facts if they are clearly erroneous. [Fn. 5]  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
novo. [Fn. 6]
     B.   The Adjudication Hearing
          At 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). [Fn. 7]  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. 
          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."[Fn. 8]  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."[Fn. 9]  This
statutory language plainly calls for the court to base its
adjudication orders upon proof of a present need for state
          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. [Fn. 10]  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 child in need of aid."[Fn.
11]  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.  
          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.
[Fn. 12]  We held in O.R. that to 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 physical
harm. [Fn. 13]  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."[Fn. 14]  We further emphasized
that adjudication under subsection (6) will be warranted when
"parental conduct causing the potential for harm suffices to
trigger state action."[Fn. 15]  
          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.
[Fn. 16]            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. [Fn. 17]  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. [Fn. 18]  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. [Fn. 19]  
          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 erred in concluding
that V.D.'s children were children in need of aid.
     C.   Right to Counsel
          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.
[Fn. 20]  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. 
          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.
[Fn. 21]  This delay also worked against ICWA's fundamental goal of
promoting stability and security in Indian families. [Fn. 22]  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.
          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
     D.   Active Efforts
          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.


Footnote 1:

     The children are Indian children within the definition of the
Indian Child Welfare Act. [Fn. 23]  See 25 U.S.C.  1903 (1994). 

Footnote 2:

     The two oldest children, who were in high school, planned to
remain in Kenai until the school year ended.

Footnote 3:

     One of these foster placements was unsuccessful, and the six
children were eventually placed in five different foster homes. 

Footnote 4:

     The court entered a formal written order confirming its
December 1997 adjudication ruling on March 6, 1998.  

Footnote 5:

     See R.J.M. v. State, Dep't of Health & Social Servs., 973 P.2d
79, 84 (Alaska 1999).

Footnote 6:

     See E.M. v. State, Dep't of Health & Social Servs., 959 P.2d
766, 768 (Alaska 1998).

Footnote 7:

     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

Footnote 8:

     Former AS 47.10.010(a) (1996) (emphasis added).

Footnote 9:

     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

Footnote 10:

     See D.H. v. State, Dep't of Health & Social Servs., 929 P.2d
650, 652-54 (Alaska 1996).

Footnote 11:

     962 P.2d 173, 176 (Alaska 1998) (emphasis added).

Footnote 12:

     See O.R. v. State, Dep't of Health & Social Servs., 968 P.2d
93 (Alaska 1998).

Footnote 13:

     Id. at 98.

Footnote 14:


Footnote 15:


Footnote 16:

     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

Footnote 17:

     AS 47.70.010.

Footnote 18:

     See id.

Footnote 19:

     See In re S.A., 912 P.2d 1235, 1239 (Alaska 1996); F.T. v.
State, 862 P.2d 857, 861 (Alaska 1993).

Footnote 20:

     See 25 U.S.C.  1912(b) (1994). 

Footnote 21:

     See CINA Rule 10(e) (providing for review pending

Footnote 22:

     See 25 C.F.R.  23.3 (1999).

Footnote 23:

     See 25 U.S.C.  1901-1923.