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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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
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) Supreme Court No. S- 11378
Appellant, )
) Superior Court No. 3PA-02-00037 CP
v. )
) O P I N I O N
DEPARTMENT OF HEALTH AND ) [No. 5930 - August 5, 2005]
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.
          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.
          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
          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
     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
          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
     C.    The  Superior Court Did Not Err by Ordering Alyssa  To
Undergo    a             Psychological   Evaluation   Prior    to

          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

     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

     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

     28    Id. (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118

     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
     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.