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Alyssa B v. State, DH&SS (08/05/2005) sp-5930
Alyssa B v. State, DH&SS (08/05/2005) sp-5930
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ALYSSA B.,
| ) |
|
| ) Supreme Court No. S-
11378 |
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Appellant, | ) |
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| ) Superior Court No.
3PA-02-00037 CP |
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v. | ) |
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| ) O P I N I O
N |
|
STATE OF ALASKA, | ) |
|
DEPARTMENT OF HEALTH AND | ) [No. 5930 - August 5,
2005] |
|
SOCIAL SERVICES, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Michael
G. Hotchkin, Assistant Attorney General,
Anchorage, and David W. Marquez, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Alyssa B.1 argues that the superior court erred by
denying her request for a jury trial during adjudication of the
question whether her daughter was a child in need of aid, and by
ordering Alyssa to undergo a pre-adjudication psychological
evaluation. We affirm. There is no right to a jury trial in
child-in-need-of-aid (CINA) proceedings and it was not an abuse
of discretion to order a psychological evaluation in this case.
II. FACTS AND PROCEEDINGS
In May 2002 Superior Court Judge Eric Smith found
probable cause to believe that Alyssa B.s daughter was a child in
need of aid and ordered that the child be committed to the
temporary custody of the Alaska Department of Health and Social
Services. The department discontinued visitation between Alyssa
and her daughter that summer due to Alyssas misbehavior during
visits. The department informed Alyssa that she would need to
undergo a psychological evaluation because it believed she had a
mental illness. The department filed an amended petition in
March 2003 seeking an adjudication that Alyssas daughter was a
child in need of aid; the petition alleged in part that Alyssa
suffers from a mental illness or a[n] emotional disturbance that
places the child at substantial risk of physical harm or mental
injury.
Alyssa requested a jury trial for the adjudication
hearing. She also asked the superior court to find that the
department had abused its discretion by requiring her to undergo
a psychological evaluation before it would allow her to resume
visitation with her daughter. The superior court denied Alyssas
request for a jury trial and granted the departments cross-motion
requesting that Alyssa be ordered to submit to a psychological
evaluation. Following the adjudication hearing, the superior
court held that Alyssas daughter was a child in need of aid. The
superior court entered a disposition order in January 2004
committing Alyssas daughter to the departments custody.
Alyssa appeals.2
III. DISCUSSION
A. Standard of Review
Denial of a motion for a jury trial raises a question
of law that we review de novo.3 We review constitutional
questions using our independent judgment and adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy.4 We exercise our independent judgment when interpreting
Alaskas procedural rules,5 including the CINA rules. Whether a
trial court has the authority to require a party to submit to a
psychological evaluation presents an issue of law that we review
exercising our independent judgment.6 We review an order
requiring a party to participate in a psychological examination
under Alaska Civil Rule 35(a) for abuse of discretion.7
B. There Is No Right to a Jury Trial in CINA Proceedings
in Alaska.
Alyssa argues that she was entitled to a jury trial at
the CINA adjudication hearing under either article I, section 16
of the Alaska Constitution or the due process clause in article
I, section 7 of the Alaska Constitution.
1. Article I, section 16
Article I, section 16 of the Alaska Constitution
provides in relevant part: In civil cases where the amount in
controversy exceeds two hundred fifty dollars, the right of trial
by a jury of twelve is preserved to the same extent as it existed
at common law. We have recognized that the termination of
parental rights did not exist at common law.8 The department
refers us to the territorial child protection statute, which
stated that [p]roceedings under this Act shall be without jury.9
Moreover, [t]he Alaska Constitution preserves a jury trial only
for those causes of action which are legal, and not equitable in
nature.10 Child protection cases have historically been treated
as matters of equity in Alaska.11 The vast weight of authority
from other jurisdictions also treats actions relating to child
protection as equitable in nature.12 We therefore conclude that
article I, section 16 of the Alaska Constitution does not provide
a right to a jury trial in CINA proceedings.
Alyssa contends, however, that a CINA case is similar
to a juvenile delinquency case. In RLR v. State, we held that
whenever a child in a delinquency proceeding is charged with acts
which would be a crime, subject to incarceration if committed by
an adult, the Alaska Constitution guarantees him [or her] the
right to jury trial.13 This right arises from article I, section
11 of the Alaska Constitution, which provides in part that [i]n
all criminal prosecutions, the accused shall have the right to a
speedy and public trial, by an impartial jury. Alyssa concedes
that a CINA proceeding is not a criminal proceeding,14 but
nonetheless argues that [g]iven the fundamental nature of the
right involved [to parent ones child], the accused parent ought
to have the same right to a jury trial, at least at the
adjudicatory stage, as an accused juvenile. We are unconvinced.
A CINA proceeding is not a criminal proceeding and is not
analogous to a criminal proceeding. Article I, section 11 did
not entitle Alyssa to a jury trial at the adjudication stage of
the CINA proceedings.
Alyssa also relies on our observation in RLR that the
right to jury trial is coextensive with the right to counsel15 and
argues that because there is a right to counsel in proceedings
brought to terminate parental rights,16 there must also be a right
to trial by jury. This argument is unconvincing. RLR there
referred to the right to counsel in criminal prosecutions; that
is a right preserved by article I, section 11. In comparison,
the right to counsel in proceedings brought to terminate parental
rights arises from the due process clause of the Alaska
Constitution.17
2. Due process
Alyssa alternatively argues that the due process clause
of the Alaska Constitution, article I, section 7,18 entitles her
to a jury trial at the adjudication stage of the CINA
proceedings. To determine compliance with procedural due
process, Alaska courts balance:
(1) the private interest affected by the
official action; (2) the risk of an erroneous
deprivation of such interest through the
procedures used and the probable value, if
any, of additional or substitute procedural
safeguards; and (3) the governments interest,
including the fiscal and administrative
burdens that additional or substitute
procedural requirements would entail.[19]
Although [t]he private interest of a parent whose
parental rights may be terminated . . . is of the highest
magnitude,20 this interest must be balanced against the childs
right to an adequate home and education21 and the states interest
in the childs welfare.22 Judges are well situated to make
reliable findings in CINA cases, given their knowledge of and
familiarity with the controlling law and the prior proceedings of
the case.23 As for the governments interests, the department
points out that jury trials in CINA proceedings could delay
reunification or permanent placement, reduce judicial economy,
increase the number of parents contesting adjudication instead of
attempting to reach an agreement, and compromise the departments
ability to maximize its resources.
We conclude that the Alaska Constitutions due process
clause does not require the availability of jury trials in CINA
proceedings.24
C. The Superior Court Did Not Err by Ordering Alyssa To
Undergo a Psychological Evaluation Prior to
Adjudication.
Alyssa argues that it was error to order her to undergo
a psychological evaluation.25 Child in Need of Aid Rule 16(b)
provides that, in the context of predisposition reports, [t]he
court may order mental and physical examinations of the . . .
childs parents. The superior court here ordered Alyssa to submit
to a psychological evaluation prior to adjudication. Alyssa
contends that this was improper because of the significant
difference between adjudication and disposition.
It is true that the CINA rule pertaining to
predisposition reports CINA Rule 16(b) specifically mentions
physical and mental examinations and that the CINA rule
addressing adjudication CINA Rule 15 does not. But CINA Rule
8(a) states that, with limited exceptions not relevant here, the
Alaska Civil Rules govern discovery in CINA proceedings. Alaska
Civil Rule 35(a) provides that [w]hen the mental or physical
condition . . . of a party . . . is in controversy, the court . .
. may order the party to submit to a physical or mental
examination. We decline to read the express authority granted in
CINA Rule 16(b) concerning predisposition reports as implicitly
limiting what the trial court is authorized by other rules to do
at the adjudication stage in CINA proceedings.
Before a mental or physical examination can be ordered
under Alaska Civil Rule 35(a), the movant must show that the
other partys mental or physical condition is in controversy and
that there is good cause for an examination. To be in
controversy means to be directly involved in some material
element of the cause of action or a defense. 26 Good cause exists
if the mental state of petitioner, even though in controversy,
cannot adequately be evidenced without the assistance of expert
medical testimony. 27 We have also noted that [t]he ability of
the movant to obtain the desired information by other means is
also relevant.28
These requirements are especially important in the
context of CINA proceedings. Civil Rule 35(a) should be invoked
cautiously, only after the movant has demonstrated sufficient
justification for a mental or physical examination.29 This
ensures that trial courts can guard against misuse of Civil Rule
35(a) as an unwarranted mechanism for discovering mental or
physical issues absent good reason to believe that such issues
actually exist.
The department points out that Alyssas mental state was
in controversy for three reasons: (1) the department was trying
to restore visitation that it had stopped because of [Alyssas]
threatening, abusive, hostile, and inappropriate behaviors; (2)
it needed a psychological evaluation in order to make reasonable
efforts to reunify the family; and (3) the department petitioned
for an adjudication under, among other provisions, AS
47.10.011(11) (on the theory Alyssas mental or emotional
condition placed the child at risk).30 To demonstrate good cause
for ordering the examination, the department submitted the
affidavit of a state social worker. The affidavit described
these circumstances: physicians had expressed concerns about
Alyssas coping strategies and ability to care for her child;
Alyssa had exhibited paranoid behavior on several occasions;
Alyssa had admitted that she was receiving social security
benefits for depression; an intake assessment completed by Alyssa
had indicated major depression and mild level anxiety; Alyssa had
been threatening, abusive, and hostile to staff; and Alyssas
brother had stated that she was delusional and reported a family
history of mental illness.
We conclude that Alyssas mental condition was in
controversy and that there was sufficient evidence to establish
good cause for a psychological evaluation. It was therefore not
an abuse of discretion to order Alyssa to undergo such an
evaluation.31 IV. CONCLUSION
For the reasons stated above, we AFFIRM the superior
courts amended adjudication orders entered October 22 and October
29, 2003.
_______________________________
1 Alyssa B. is a pseudonym.
2 Alyssa does not appeal entry of the disposition order.
3 Riddell v. Edwards, 32 P.3d 4, 7 (Alaska 2001).
4 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).
5 See Airoulofski v. State, 922 P.2d 889, 892 (Alaska
1996) (applying independent judgment standard to interpretation
of Alaskas Civil Rules). We exercise our independent judgment
when interpreting a civil rule. S.S.M. v. State, Dept of Health
& Soc. Servs., Div. of Family & Youth Servs., 3 P.3d 342, 344
(Alaska 2000).
6 Cf. State, Dept of Revenue v. Deleon, 103 P.3d 897, 898
(Alaska 2004) (holding that whether superior court had authority
to order a delinquent parent to apply for a permanent fund
dividend to enforce a child support order was question of law).
7 See Dingeman v. Dingeman, 865 P.2d 94, 98-99 (Alaska
1993).
8 Alden H. v. State, Office of Childrens Servs., 108 P.3d
224, 228 (Alaska 2005).
9 51-3-10 Alaska Compiled Laws Annotated (ACLA) 1949.
10 McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992).
11 The department refers us to the pre-statehood case of
Clegg v. Abood, 13 Alaska 187 (D. Alaska 1951). The court there
stated that [i]t is well established that a court of equity has
inherent power and jurisdiction in all proceedings involving the
custody of minor children. Id. at 190.
12 See, e.g., In re Lambert, 203 F.2d 607, 609 (D.C. Cir.
1953) (Proceedings concerning the custody of children have always
been equity proceedings.); In the Interest of E.J.R., 400 N.W.2d
531, 532-33 (Iowa 1987) (noting equitable nature of juvenile
proceedings); In re Shane T., 544 A.2d 1295, 1297 (Me. 1988)
(observing that suits adjusting the relationship between parent
and child were heard in equity without the intervention of a jury
before enactment of state constitution); In re Heilig, 816 A.2d
68, 81 (Md. App. 2003) (Courts of equity have jurisdiction to
terminate parental rights . . . .); Matter of Colon, 377 N.W.2d
321, 328 (Mich. App. 1985) ([A]t common law, actions to terminate
parental rights did exist, and courts of equity had jurisdiction
over them.); State, Children, Youth & Families Dept v. T.J., 934
P.2d 293, 298 (N.M. App. 1997) ([A]ctions to terminate parental
rights have historically been considered equitable in nature and
were so considered in New Mexico at the time our constitution was
adopted.); A.E. v. State, 743 P.2d 1041, 1045 (Okla. 1987) (This
Court is cognizant that at common law rights and liabilities
arising from status-based relationships were determined in
equitable proceedings.).
13 RLR v. State, 487 P.2d 27, 33 (Alaska 1971).
14 Cf. In re Adoption of A.F.M., 15 P.3d 258, 267 (Alaska
2001) (rejecting argument that termination of parental rights in
adoption proceeding is criminal in nature because proceedings
serve important non-punitive ends).
15 RLR, 487 P.2d at 32.
16 V.F. v. State, 666 P.2d 42, 45 (Alaska 1983).
17 Id. at 44.
18 Article I, section 7 of the Alaska Constitution
provides in part that [n]o person shall be deprived of life,
liberty, or property, without due process of law.
19 Varilek v. City of Houston, 104 P.3d 849, 853 (Alaska
2004) (quoting Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d
1105, 1111 (Alaska 2002)). This test is derived from Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). See City of Homer v. State,
Dept of Natural Res., 566 P.2d 1314, 1319 (Alaska 1977).
20 Matter of K.L.J., 813 P.2d 276, 279 (Alaska 1991).
21 R.C. v. State, Dept of Health & Soc. Servs., 760 P.2d
501, 506 n.15 (Alaska 1988) (quoting In re S.D., Jr., 549 P.2d
1190, 1201 (Alaska 1976)).
22 K.L.J., 813 P.2d at 279-80.
23 See State ex rel. Children, Youth & Families Dept v.
T.J., 934 P.2d 293, 298 (N.M. App. 1997) (noting that familiarity
with the prior proceedings and the case as a whole enables judges
to properly consider all of the factors that must be taken into
account in making the difficult decision to either terminate the
parents rights or leave the child in the parents custody).
24 Accord In Interest of Weinstein, 386 N.E.2d 593, 596
(Ill. App. 1979) (holding that the concept of due process does
not require a jury trial in termination of parental rights
proceeding); Matter of Ferguson, 274 S.E.2d 879, 880 (N.C. App.
1981) (finding that the United States Constitution does not
require a jury trial as a part of due process in proceedings to
terminate parental rights); State in Interest of T.B., 933 P.2d
397, 400 (Utah App. 1997) (Neither Utah law nor federal due
process guarantees the right to a jury in parental rights
termination proceedings.); Matter of GP, 679 P.2d 976, 988 (Wyo.
1984) (holding that the right to a jury trial in a
parental-termination action cannot be characterized as
fundamental).
25 For purposes of our discussion, we assume that Alyssa
would have been prejudiced if the superior court abused its
discretion by ordering her to undergo a psychological evaluation.
26 Dingeman v. Dingeman, 865 P.2d 94, 99 (Alaska 1993)
(quoting Gasparino v. Murphy, 352 So. 2d 933, 935 (Fla. Dist.
App. 1977)).
27 Id. Because [d]iscovery of this type is of the most
personal and private nature, we have emphasized that good cause
is not just a formality. Id. (quoting Gasparino, 352 So. 2d at
935).
28 Id. (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118
(1964)).
29 See Schlagenhauf, 379 U.S. at 118-19 (noting that
corresponding Federal Rule 35 requires discriminating application
by the trial judge, who must decide, as an initial matter in
every case, whether the party requesting a mental or physical
examination or examinations has adequately demonstrated the
existence of the Rules requirements of in controversy and good
cause ).
30 AS 47.10.011 provides in part:
[T]he court may find a child to be 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 following: . . . (11)
the parent, guardian, or custodian has a
mental illness, serious emotional
disturbance, or mental deficiency of a nature
and duration that places the child at
substantial risk of physical harm or mental
injury.
31 Alyssa briefly asserts that the superior courts order
failed to comply with Civil Rule 35(a)s requirement that the
time, place, manner, conditions, and scope of the examination and
the person or persons by whom it is to be made be specified.
Alyssa appears to raise this issue for the first time on appeal;
she has not referred us to any record passage confirming that she
brought this contention to the superior courts attention.
Moreover, her brief does not address the issue meaningfully on
appeal. We therefore decline to consider it.
