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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Peter A. v. State (11/10/2006) sp-6070
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
| PETER A., | ) |
| ) Supreme Court No. S- 12119 | |
| Appellant, | ) |
| v. | ) Superior Court Nos. 4BE-05-00014/15 CP |
| ) | |
| STATE OF ALASKA, DEPART- | ) O P I N I O N |
| MENT OF HEALTH AND SOCIAL | ) |
| SERVICES, OFFICE OF | ) No. 6070 - November 9, 2006 |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Leonard R. Devaney, Judge.
Appearances: Angela Greene, Assistant Public
Defender, Bethel, and Quinlan G. Steiner,
Public Defender, Anchorage, for Appellant.
Mary Ann Lundquist, Assistant Attorney
General, Fairbanks, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The superior court adjudicated Peter A.s two children
to be children in need of aid (CINA) under AS 47.10.011(6), (9),
and (10) after his wife developed an alcohol abuse problem.
Peter appeals the adjudication order. He argues that the
superior court erred by adjudicating the children to be in need
of aid based solely on his wifes conduct, despite his ability and
willingness to care for the children. He also argues that the
adjudication violates his constitutional right to parent his
children and the Indian Child Welfare Act.1 Because the superior
court dismissed the case soon after the adjudication there is no
live controversy for this court to decide. Furthermore, because
we vacate the adjudication order as a matter of equity, Peter
will suffer no collateral consequences from the adjudication. We
therefore vacate the adjudication order and dismiss this appeal
as moot.
II. FACTS AND PROCEEDINGS
In 2002 Peter A. suffered a grave and permanent injury
in a snow machine accident.2 While he was recuperating in
various hospitals and extended care facilities, his wife, Martha,
developed an alcohol abuse problem. When an intoxicated Martha
appeared with two of their children at Peters extended care
facility in October 2004, the Alaska Office of Childrens Services
(OCS) took emergency custody of the children, filed an emergency
petition for adjudication of the children as in need of aid and
for temporary placement, and sent the children to live with
Marthas mother in Bethel. Martha soon rejoined the children in
her mothers home, but OCS retained supervisory custody.
The Anchorage superior court held a hearing on the
emergency petition in November 2004 and found probable cause to
believe the children were in need of aid. In December 2004 the
Anchorage superior court transferred venue to the superior court
in Bethel.3
Marthas alcohol abuse problems continued. In May 2005
she was arrested after police found her intoxicated and fighting
with another woman.
In late June 2005 Peter left the hospital and returned
to his rural village under the care of his extended family. OCS
placed his children with him on a trial basis the next day. The
parties agree that the placement went smoothly and that the
children were happy and well-cared-for in Peters home.
Around the same time, Martha traveled to Anchorage to
seek substance abuse treatment. She was still in treatment in
Anchorage in late August 2005 when the disputed adjudication
order was entered.
The Bethel superior court entered the August 2005
adjudication order after a protracted and sporadic adjudication
hearing between April and August 2005. On August 29 the superior
court adjudicated the children to be in need of aid under AS
47.10.011(6) (substantial risk of harm), (9) (neglect), and (10)
(substance abuse). It found that by driving the children to
Peters extended care facility while intoxicated, Martha had
placed the children at substantial risk of harm. It also found
that Marthas relapse and subsequent arrest in May 2005
demonstrated that the children continued to be in need of aid at
the time of the adjudication. The adjudication order gave Peter
continued custody of the children, subject to state supervision.
The order also prohibited Martha from having contact with the
children except through arrangements made for visitation with the
state, and required Peter to protect the children from
unauthorized contact with Martha and to report any such contact
to the state.
On October 4, 2005 OCS moved to dismiss the case based
on the testimony of a state social worker that the children were
no longer at risk. The superior court granted the motion.
Although Peter thus ultimately prevailed, he appeals the entry of
the adjudication order. He argues that the Indian Child Welfare
Act and the United States Constitution prohibit the court from
adjudicating children in need of aid based solely on the actions
of one parent if there is a second, fit parent who is willing and
able to care for the child. He also argues that his children
were not in need of aid at the time of adjudication. The state
contends that Peters appeal is moot. Martha is not a party to
the appeal.
We heard oral argument in this case on May 9, 2006. We
then asked the parties for supplemental briefing on several
issues.4 Because we hold that Peters appeal is moot, it is
unnecessary for us to decide the issues addressed by the
supplemental briefs.
III. DISCUSSION
A. Standard of Review
Because it is a matter of judicial policy, mootness
presents a question of law.5 We therefore apply our independent
judgment to claims of mootness.6
B. Peters Appeal Is Moot.
Pointing out that the superior court, at the states
request, dismissed this case before disposition, the state argues
that we should dismiss Peters appeal of the adjudication as moot.
Peter responds that the adjudication of his children as in need
of aid presents a live controversy both because the judgment has
prospective effect and because this case falls within the public
interest exception to the mootness doctrine.
A claim is moot if it has lost its character as a
present, live controversy.7 If the party bringing the action
would not be entitled to any relief even if it prevails, there is
no case or controversy for us to decide.8 A party generally may
not appeal a judgment in its favor in order to challenge an
interlocutory order.9 Furthermore, a naked desire for
vindication does not save an otherwise dead controversy from
mootness.10 Peter must show either that concrete relief would be
available to him if this court reversed the adjudication order or
that the issue falls into one of the exceptions to the mootness
doctrine.
Peter argues that because the adjudication order is
separate from the order that dismissed the case before
disposition, it is not moot even though an appeal of the
dismissal order would be. But an adjudication is merely an
intermediate ruling on the path to disposition. Once the
superior court dismissed the case, the state lost the power
granted it by the adjudication order to interfere with Peters
family. Thus, although the adjudication order may have been, as
Peter argues, a separate order from the disposition, it is not
one that has any direct legal effect on Peter after the superior
court dismissed the case.
Peter also argues that, even if the adjudication no
longer directly affects him, its potential collateral
consequences are significant enough to warrant judicial review of
the adjudication. He asserts that per AS 47.10.011(10), a child
adjudicated to be in need of aid because of a parents substance
abuse is subsequently presumed to be in need of aid if the parent
resumes substance abuse within one year of rehabilitation.11 He
also asserts that AS 47.10.011(9) allows a child to be
adjudicated in need of aid on the basis of past neglect of
another child in the same household.12
The collateral consequences doctrine allows courts to
decide otherwise-moot cases when a judgment may carry indirect
consequences in addition to its direct force, either as a matter
of legal rules or as a matter of practical effect.13 We have
recognized the collateral consequences doctrine. In E.J. v.
State, we held that a childs claim that he was improperly
adjudicated to be delinquent was not moot even though the lower
court later declared the adjudication of delinquency to be void
ab initio.14 We held that review of the initial delinquency
determination was justified, because the childs records were
easily obtainable and could be made available to school
authorities, social workers, parole officers, judges imposing
sentence for the commission of crimes, the military services, or
prospective employers, all of whom might be influenced to the
detriment of the minor.15 Similarly, in Graham v. State, we held
that the revocation of the plaintiffs drivers license was not
moot even though the ninety-day period of revocation had ended.16
We reasoned in part that the collateral consequences of a drivers
license revocation may be substantial. Such a revocation can
result in higher insurance rates, adverse employment consequences
and other serious results.17 Finally, in Martin v. Dieringer we
held that a petition to remove a personal representative from an
estate was not mooted by the fact that the estate had closed and
the defendant was no longer the personal representative.18 We
reasoned that the use of the lower courts findings to dismiss a
related civil action on collateral estoppel grounds prevented the
controversy from becoming moot.19
We assume for the sake of discussion that AS
47.10.011(9) and (10) potentially create collateral consequences
for Peter.20 But these consequences would not prevent us from
holding that this appeal is moot. In City of Valdez v. Gavora,
we adopted the practice used by federal courts in disposing of
moot claims.21 At the time, that practice required not only
dismissing the appeal, but also vacating the judgment below.22
Although the United States Supreme Court has since clarified that
not all moot claims require vacatur, it has held that vacatur is
especially appropriate when mootness results from unilateral
action of the party who prevailed below.23 Otherwise, the Court
explained, the appellant is effectively forced to acquiesce in
the judgment.24 In other words, when a prevailing party
voluntarily moots a case, without the appellants acquiescence,
the appellant, through no fault of his own, is prevented from
obtaining appellate review of his claim. We agree with the
United States Supreme Court that principles of equity require
vacatur of the challenged order in such a case.25
In this case, the validity of the adjudication order
became moot because the state voluntarily moved to dismiss the
case at disposition. The states successful motion to dismiss
prevented Peter from challenging the merits of the adjudication
order on appeal. Because equity therefore requires vacatur of
the adjudication order, Peters argument that collateral
consequences arising under AS 47.10.011(9) and (10) render this
appeal a live controversy is unconvincing. Peter will not suffer
any collateral consequences under these subsections.
Peters additional argument that the adjudication order
is not moot because an adjudication carries a permanent social
stigma is also unpersuasive. All the records in CINA proceedings
are sealed.26 There is no publicly available record that Peters
children were adjudicated in need of aid. Peter acknowledges
that CINA proceedings are confidential but argues that this fact
is irrelevant because during the course of the litigation, OCS
contacted many of the people with whom [Peter] has the most
contact his health care providers, his childrens teachers, and
his tribe and that these people are thus aware of the child
welfare proceedings against him. This may or may not be so.
After all, the proceedings were not against him and indeed the
essence of his challenge on the merits is that the CINA petition
was based only on Marthas misconduct. But because all parties
must maintain the confidentiality of all information in the court
file, issuing an opinion on the merits and reversing the superior
courts confidential adjudication order would not publicly remedy
any possible social stigma, to the extent it exists. Because the
remedy he is requesting would not redress his alleged injury,
social stigma does not give Peter standing to appeal the
adjudication order.27
C. The Public Interest Exception to the Mootness Doctrine
Does Not Apply.
Peter also argues that the public interest exception to
the mootness doctrine applies to this case. In deciding whether
to hear a moot appeal under this doctrine, we consider three
factors:
(1) whether the disputed issues are capable
of repetition, (2) whether the mootness
doctrine, if applied, may cause review of the
issues to be repeatedly circumvented, and (3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine.[28]
We weigh each of these factors in our discretion to determine
whether to hear the case; none of the factors is dispositive.29
The state concedes that two of these factors are
arguably present here. It consequently does not dispute that the
issues are capable of repetition and that the issues are
important to the public interest.30 The state instead contends
only that there is no danger that the issues presented in this
appeal will be repeatedly circumvented in future cases. The
state argues that although it is likely that there will be future
cases in which children are adjudicated in need of aid because of
the actions of one parent, many of those cases will result in a
disposition in which the parents rights are terminated or the
parents dispute the placement of the children. In such cases, an
appeal of the adjudication decision would not be moot because the
possibility of effective relief would be present.
Peter counters that if the court refuses to hear cases
in which the state releases custody of the children after a year
of litigation, this fact pattern will be capable of endless
repetition, leaving aggrieved parents, like [Peter], with no
remedy.
Peter misidentifies the legal issue that must be
repeatedly circumvented for the public interest exception to
apply. The primary issue he would raise in this case is whether
children may be adjudicated in need of aid over the objections of
one available fit and willing parent. Cases in which the state
releases custody of the children and thereby moots a fit parents
appeal are presumably only a subset of those cases in which that
issue could arise, and in that subset of cases, relief is
available in the form of vacatur. In other cases, in which
parents receive unfavorable dispositions, they have the legal
right to appeal the adjudication order as well as the disposition
order. It therefore seems likely that parents actually harmed by
a CINA adjudication will have an opportunity to litigate the same
questions Peter raises in this appeal. Because this means that
review of the issue in this case is not likely to be repeatedly
circumvented, we decline to apply to this case the public
interest exception to the mootness doctrine.
IV. CONCLUSION
For the reasons discussed above, we VACATE the order
adjudicating Peters children in need of aid and DISMISS this
appeal as moot.
_______________________________
1 25 U.S.C. 1901 et seq. (1978).
2 We use pseudonyms for all family members.
3 The state filed two CINA cases, one for each child. We
refer to them collectively as the case.
4 Our supplemental briefing order asked the parties to
address these issues:
a. how other jurisdictions have dealt
with cases in which the state seeks to
adjudicate a child in need of aid over the
objections of a non-offending or fit parent;
b. whether other jurisdictions have
found children to be in need of aid based on
past conditions that have been alleviated by
the time of the adjudication;
c. whether and to what extent after
the state obtains legal custody but before
adjudication the state must make efforts to
assist a parent who is not unfit in
protecting children who are in need of aid
from an unfit parent; and
d. whether the superior courts
adjudication findings were adequate for
purposes of review.
5 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).
6 Id.
7 Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 523
(Alaska 1993) (quoting United States v. Geophysical Corp., 732
F.2d 693, 698 (9th Cir. 1984)).
8 Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773,
776 (Alaska 2001).
9 See Fairbanks Fire Fighters Assn, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (holding that unions
appeal of intermediate legal question was moot because it
obtained relief sought from superior court).
10 13A Charles Alan Wright et al., Federal Practice &
Procedure 3533, at 212 (2d ed. 1984).
11 See AS 47.10.011. Under this provision
the 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:
. . . .
(10) the parent, guardian, or custodians
ability to parent has been substantially
impaired by the addictive or habitual use
of an intoxicant, and the addictive or
habitual use of the intoxicant has resulted
in a substantial risk of harm to the
child; if a court has previously found
that a child is a child in need of aid under
this paragraph, the resumption of use of an
intoxicant by a parent, guardian, or
custodian within one year after
rehabilitation is prima facie evidence that
the ability to parent is substantially
impaired and the addictive or habitual use
of the intoxicant has resulted in a
substantial risk of harm to the child as
described in this paragraph.
(Emphasis added.)
12 AS 47.10.011(9) allows adjudication if conduct by or
conditions created by the parent, guardian, or custodian have
subjected the child or another child in the same household to
neglect.
13 Wright, supra note 10, 3533.3, at 291.
14 E. J. v. State, 471 P.2d 367, 36870 (Alaska 1970).
15 Id.
16 Graham v. State, 633 P.2d 211, 213 (Alaska 1981).
17 Id.
18 Martin v. Dieringer, 108 P.3d 234, 236 (Alaska 2005).
19 Id.
20 We express no opinion about Peters interpretation of AS
47.10.011(9) and (10) or whether they may give rise to post-
dismissal consequences adverse to him.
21 City of Valdez v. Gavora, Inc., 692 P.2d 959, 960
(Alaska 1984); see also United States v. Munsingwear, Inc., 340
U.S. 36, 39 (1950).
22 City of Valdez, 692 P.2d at 960.
23 U.S. Bancorp Mortgage Co. v. Bonner Mall Pship, 513
U.S. 18, 25 (1994).
24 Id.; see also Dilley v. Gunn, 64 F.3d 1365, 1370 (9th
Cir. 1995) ([A] litigant should not be bound by an adverse
unreviewed judgment when mootness results from unilateral action
of the party who prevailed below. ) (quoting U.S. Bancorp, 513
U.S. at 25); Ocean Conservancy v. Natl Marine Fisheries Serv.,
416 F. Supp. 2d 972, 981 (D. Haw. 2006) (vacating order denying
preliminary injunction after case became moot due to defendants
actions); cf. Wright, supra note 10, 3533.10, at 436 (noting
that mooted interlocutory appeals do not require vacatur if the
case remains alive in the district court).
25 We express no opinion about whether Gavoras seemingly
broad assertion that a holding of mootness requires vacating the
judgment below should be narrowed in light of the Supreme Courts
discussion in U.S. Bancorp.
26 See CINA Rule 22(a).
27 See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)
(holding that appellant lacked standing to request relief that
would not have redressed his alleged injury).
28 Fairbanks Fire Fighters Assn, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).
29 Id.
30 One of the issues at stake in this case that is
particularly important to the public interest is the
interpretation AS 47.10.011. The parties vigorously dispute
whether its subsections are unclear regarding the effect the
availability of a non-offending parent willing and able to care
for the child may have on the adjudication determination. Peter
argues that the statute requires individualized assessment of
each parent; the state responds that the statutes use of the
singular parent instead of parents allows for adjudication solely
on the basis of one parents actions. The parties also vigorously
dispute whether these subsections are unclear about whether
children may be adjudicated in need of aid on the basis of a
parents prior acts if the state cannot also demonstrate a
continuing risk of harm to the children. Relying on our
interpretation of a former version of Title 47, Peter argues that
a child must be in need of aid at the time of adjudication. The
state argues that recent amendments to the statute allow for
consideration of prior conduct of the parents that is unlikely to
continue into the future. Because Peters appeal is moot, we do
not need to address these issues today. But we do note that
other states have adjudication statutes that are considerably
more precise regarding one or both of these issues. See, e.g.,
Me. Rev. Stat. Ann. tit. 22 4035(2)(C) (requiring court to make
a jeopardy determination with regard to each parent who has been
properly served); Md. Code Ann. Cts. & Jud. Proc. 3-819(e) (If
the allegations in the petition are sustained against only one
parent of a child, and there is another parent available who is
able and willing to care for the child, the court may not find
that the child is a child in need of assistance, but, before
dismissing the case, the court may award custody to the other
parent.); Ut. Code Ann. 78-3a-301(1)(a) (allowing removal of
child whenever there is an imminent danger to the physical health
or safety of the child; and . . . the childs physical health or
safety may not be protected without removing the child from the
custody of the childs parent or guardian).
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