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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jennifer L. v. State, Dept. of Health & Social Services, Office of Children's Services (8/28/2015) sp-7043

Jennifer L. v. State, Dept. of Health & Social Services, Office of Children's Services (8/28/2015) sp-7043

         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, email  



JENNIFER L.,	                                         )  

                                                      )        Supreme Court No. S-15646  

                           Appellant,                 )  

                                                      )        Superior       Court       Nos.      4AK-00001/  

         v.                                           )        00002/00003 CN  


STATE OF ALASKA,                                      )        O P I N I O N  

DEPARTMENT OF HEALTH AND                              )

SOCIAL SERVICES, OFFICE OF                            )        No. 7043 - August 28, 2015

CHILDREN'S SERVICES,                                  )


                           Appellee.                  )  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Aniak, Douglas Blankenship, Judge.  


                  Appearances:    William  T.  Montgomery,  Assistant  Public  

                  Advocate,  Bethel,  and  Richard  Allen,  Public  Advocate,  


                  Anchorage, for Appellant.  Janell Hafner, Assistant Attorney  


                  General, and Craig W. Richards, Attorney General, Juneau,  

                  for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  The State's Office of Children's Services (OCS) took three minor children  

into emergency  custody, then sought a court order granting OCS temporary custody,  


----------------------- Page 2-----------------------


asserting there was probable cause to find the children in need of aid.  A standing master  


determined that no probable cause existed and recommended that the three children be  

returned to their mother's custody.  The State objected to the master's recommendation,  

and over three weeks later the superior court reviewed and rejected it, finding that there  


was probable cause.  The mother filed this appeal, asking us to hold that masters have  


the authority to return children to their homes without judicial review.  Before the State  


filed its brief, the superior court dismissed the underlying case, making this appeal moot.  


                   We apply the public interest exception to the mootness doctrine and affirm  

the superior court's ruling.  However, we also acknowledge the importance of avoiding  


procedural  delay  in  returning  children  home,  and  we  refer  this  issue  to  the  court's  

Advisory Committee on the Child In Need of Aid (CINA) Rules to consider how the  

process may be improved.  


                   Jennifer and her husband Adam are the parents of three minor children:  a  


daughter, Andrea, and two younger boys.1  

                                                                The children are Indian children as defined  

in the Indian Child Welfare Act (ICWA);2  

                                                                their tribal affiliation is with the Village of  

Lower Kalskag.  


                    OCS was involved in the children's lives for a decade, largely because of  


the parents' problems with alcohol.  But the events leading up to this appeal mark the  


first time OCS removed the children from their home.  OCS did so after it received a  

          1        We use pseudonyms to protect the family's privacy.  

          2        See  25 U.S.C.  1903(4) (2012) (" 'Indian child' means any unmarried   

person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is   

eligible for membership in an Indian tribe and is the biological child of a member of an  

Indian tribe").  

                                                            - 2 -                                                      7043

----------------------- Page 3-----------------------

report in late May 2014 that J.K., a 31-year-old man, punched the youngest boy while  

drinking alcohol with Jennifer and her daughter Andrea, then 16.  

                    OCS assigned the investigation to a social worker, who traveled to Lower  


Kalskag in early June, visited the family's  home, and found both parents under the  

influence  of  alcohol.    He  interviewed  the  parents,  two  of  the  children,  and  another  

relative who was also an ICWA social worker. The OCS employee learned that J.K. was  


alleged to be a sex offender, that J.K. was currently in a sexual relationship with Andrea,  


that her parents often allowed J.K. to spend the night with her in their home, and that  


Andrea was pregnant with J.K.'s child.  

                    OCS removed the three children on June 11, and the next day it filed a  


petition for temporary custody and for an adjudication that the children were in need of  

aid.    The  superior  court  referred  the  matter  to  a  standing  master.    The  master  set  a  


temporary custody hearing for June 14, heard evidence from a number of witnesses, then  


continued the hearing to June 18 "to allow [Adam's] attorney to be present."  The master  

authorized OCS to retain temporary custody of the children in the meantime.  At the June  


18 hearing the parties presented no additional evidence, and on June 26 the master issued  


a written order, finding no probable cause to believe that any of the three children were  


children  in  need  of  aid.    The  master  found  that  there  was  insufficient  evidence  to  


determine the nature of J.K.'s alleged sexual offense, that Andrea's relationship with J.K.  


was not cause for removal since she was of the age of consent, and that while the parents  


had made some poor choices, they had not neglected their other children.  The master's  


order concluded that "the State must immediately return the . . . children to [Jennifer and  


                                                              - 3 -                                                        7043

----------------------- Page 4-----------------------


                      The State did not return the children, but instead filed timely objections to  



the master's order with the superior court.   It was not until July 11 that the superior  


court put an oral decision on the record rejecting the master's recommendation.                                                           In a  


written decision and order distributed July 14, it also rejected Jennifer's argument that  


the master's order should have taken effect without judicial review, citing the CINA  


rules.  On the merits of the recommendation, it found there was probable cause to believe  



that two of the children were children in need of aid pursuant to AS 47.10.011(7)   and  



that all three were children in need of aid pursuant to AS 47.10.011(10).   The superior  


court  therefore  ordered  that  temporary  custody  remain  with  the  State  through  the  


adjudication hearing.  However, on the State's representations that it would assist the  


family in developing a safety plan and that J.K. was presently incarcerated, the superior  


court determined that "removal of the children from the parent's home [was] no longer  

           3          As discussed further in this opinion, the master's order for the children's   

return was "not binding until approved by a superior court judge," making it in effect a   

recommendation.  See CINA Rule 4(b)(4); Alaska R. Civ. P. 53(d).  

           4          This subsection reads in part that "if a parent, guardian, or custodian has  


actual notice that a person has been convicted of a sex offense against a minor within the  


past 15 years, is registered or required to register as a sex offender under AS 12.63, or  


is under investigation for a sex offense against a minor, and the parent, guardian, or  


custodian subsequently allows a child to be left with that person, this conduct constitutes  

prima facie evidence that the child is at substantial risk of being sexually abused."  



                      This subsection provides that a child may be found to be a child in need of  

aid  if  "the  parent,  guardian,  or  custodian's  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."  

                                                                     - 4 -                                                              7043

----------------------- Page 5-----------------------

necessary to prevent imminent physical damage or harm," and the children were returned  




                    On  July  29,  before  there  were  any  further  proceedings  on  removal  or  

termination of parental rights, Jennifer appealed the superior court's temporary custody  


decision.   In her opening brief she takes issue with the superior court procedures on  


emergency and temporary custody, asking that we "grant[] the master the authority,  


without approval from the superior court, to order a child returned home" and to "allow  


a parent to request the superior court to review a master's order removing a child from  


the home by the end of the next working day."  Less than a month after she filed her  


opening brief, however, the State filed an unopposed motion in the superior court to  


dismiss its case involving all three children, and the superior court granted the motion  


in January 2015.  The children remain with their parents.    


                    "Because it is a matter of judicial policy, mootness presents a question of  


law."7                                                                                                          8  

           We apply our independent judgment when determining mootness.   As for the  

substantive issues on Jennifer's appeal, we exercise our independent judgment "when  



interpreting  a  civil  rule"  or  statute.     "We  interpret  statutes  'according  to  reason,  

          6         See Matter of J.A.         , 962 P.2d 173, 176 (Alaska 1998) (stating that superior  

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").  

          7         Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  


146 P.3d 991, 993-94 (Alaska 2006).  

          8         Akpik v. State, Office of Mgmt. & Budget , 115 P.3d 532, 534 (Alaska 2005).  




                    S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


                                                              - 5 -                                                        7043

----------------------- Page 6-----------------------

practicality, and common sense, taking into account the plain meaning and purpose of  

the law as well as the intent of the drafters.' "10  


          A.        We Treat This Appeal As A Granted Petition For Review.  

                    The State argues that Jennifer cannot appeal a temporary custody order  



because it is not a "final judgment" reviewable under Alaska Appellate Rule 218(b)                                        and  


Alaska CINA Rule 21(a).                  An appealable order "must constitute a final judgment, such  



that it 'disposes of the entire case and ends the litigation on its merits.' "                                But in some  


cases we have decided sua sponte to treat the appeal of a non-final order "as a petition  

for review and [have decided] the questions presented to the same extent and with the  


same effect as on appeal."                  


Servs., 3 P.3d 342, 344 (Alaska 2000).  

          10       Marathon Oil Co. v. State, Dep't of Natural Res.                           , 254 P.3d 1078, 1082  

(Alaska 2011) (quoting Native Vill. Of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).  

          11        "This rule does not permit an appeal to be taken in any circumstances in  


which an appeal would not be permitted by [Appellate] Rule 202."  See Alaska R. App.  


P. 202(a) ("An appeal may be taken to the supreme court from a final judgment entered  


by the superior court . . . .").  



                    "An appeal of a final judgment or order, or a petition for review of an  

interlocutory order or decision, may be taken subject to Appellate Rule 218 or other  

appropriate appellate procedures."  



                   Husseini v. Husseini , 230 P.3d 682, 687 (Alaska 2010) (quoting Richard  

v. Boggs , 162 P.3d 629, 633 (Alaska 2007)).  

          14       Id. (quoting Leege v. Strand , 384 P.2d 665, 666-67 (Alaska 1963)) (internal  


quotation marks omitted).  See generally Alaska R. App. P. 402 (providing petitions for  

review of non-appealable orders or decisions).  

                                                             - 6 -                                                      7043

----------------------- Page 7-----------------------



                   We follow that course here rather than deciding the appealability issue.  We  

treat  Jennifer's  appeal  as  a  granted  petition  for  review15  

                                                                                         and  decide  the  question  

presented "to the same extent and with the same effect as on appeal."16  


          B.	       This  Case  Is  Moot,  But  We  Review  It  Under  The  Public  Interest  

                   Exception To The Mootness Doctrine.  


                    CINA proceedings advance in three stages that may occur over the course  

of many months.  First, OCS may take emergency custody of a child, but the superior  


court must immediately hold a temporary custody hearing at which it determines whether  


                                                                                            In later proceedings, the  

probable cause exists for believing the child is in need of aid. 


court may adjudicate 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  twelve  conditions  described  in  


AS  47.10.011.       As  a  final  step  the  court  may  terminate  the  parent's  rights  and  

responsibilities  with  respect  to  the  child,  freeing  the  child  for  adoption  or  other  


permanent placement, if it finds by clear and convincing evidence that all the conditions  

          15       See Alaska R. App. P. 402(b)(4) (stating that a petition for  review w                              ill be  

granted  if  "[t]he  issue  is  one  that  might  otherwise  evade  review,  and  an  immediate  

decision  of  the  appellate  court  is  needed  for  guidance  or  is  otherwise  in  the  public  



          16       Husseini , 230 P.3d at 687.  

          17       See AS 47.10.142; AS 47.10.990(4) (defining "child in need of aid").  

          18        The  only  relevant  provisions  in  the  instant  case  were  AS  47.10.011(7)  

(when parent has "actual notice that a person h   as been convicted of a sex offense against  

a   minor"  and  leaves  child  with  that  person)  and  AS  47.10.011(10)  (when  parent  is  

"substantially impaired by the addictive  or  habitual use of an intoxicant" and that use  

"has resulted in a substantial risk of harm to the child").  

                                                            - 7 -	                                                     7043

----------------------- Page 8-----------------------



of AS 47.10.088(a) have been met,                         and, in ICWA cases like this one, if it finds "by  

evidence beyond a reasonable doubt, including testimony of qualified expert witnesses,  

that the continued custody of the child by the parent . . . is likely to result in serious  



emotional or physical damage to the child."                            Jennifer's appeal involves only the first  

stage - the superior court's probable cause determination for purposes of temporary  

custody - as the case was dismissed before it went any further.  


                    Dismissal of the case before adjudication or termination also means that  


Jennifer's appeal of the superior court's probable cause determination is moot.  "A claim  


                                                                                                    "If the party bringing  

is moot if it has lost its character as a present, live controversy." 

the action would not be entitled to any relief even if it prevails, there is no 'case or  



controversy' " to decide.                 As a general rule, a party "may not appeal a judgment in its  


                                                                                A " 'naked desire for vindication'  

favor in order to challenge an interlocutory order." 

          19        See  AS  47.10.088(a)  ("(1)  the  child  has  been  subjected  to  conduct  or  

conditions described in AS 47.10.011;  (2) the parent . . . has not remedied the conduct  


or conditions in the home that place the child at substantial risk of harm; or . . . has failed,  

within a reasonable time, to [do so]; and . . . (3) the department has [made] reasonable  



          20        25 U.S.C.  1912(f); CINA Rule 18(c)(4).  



                    Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  


 146 P.3d 991, 994 (Alaska 2006) (quoting Kleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d  

518, 523 (Alaska 1993)).  

          22        Id.  



                    Id. ;  see  also  Fairbanks  Fire  Fighters  Ass'n,  Local  1324  v.  City  of  

Fairbanks ,  48  P.3d  1165,  1168  (Alaska  2002)  (holding  that  union's  appeal  of  

"intermediate legal question" was moot after it obtained relief in superior court).  

                                                               - 8 -                                                       7043

----------------------- Page 9-----------------------



does not save an otherwise dead controversy from mootness."                                           To survive a mootness  

challenge, therefore, Jennifer must show that concrete relief would be available to her  

if we reversed the probable cause determination or that the issue on appeal falls under  

one of the exceptions to the mootness doctrine.  

                     It is evident that Jennifer will receive no concrete relief if we reverse the  

probable cause determination, as the children are in her custody and OCS no longer  

seeks to be involved in the parent-child relationship.  We conclude, however, that the  


public  interest  in  the  legal  issue  she  raises  is  significant  enough  to  warrant  our  

consideration of this otherwise moot case.  

                     We weigh various considerations when deciding whether to hear a moot  

appeal under the public interest exception:  "(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."25                                                 The  



weight we give each of these factors is discretionary, and no one of them is dispositive. 


                     The question of  whether a child should be promptly returned home upon  


the recommendation of a standing master is a question important to the public interest,  

                                     27  Resolution of the issue may affect a number of pending and  

and it may arise again.     

           24        Peter A., 146 P.3d at 994 (quoting 13A C                          HARLES ALLAN  WRIGHT , ET AL .,  



  EDERAL PRACTICE & PROCEDURE   3533, at 212 (2d ed. 1984)).  

           25        See In re Candace A.              , 332 P.3d 578, 579 n.2 (Alaska 2014) (quoting                            Peter  

A. , 146 P.3d at 996).  

           26        See Fairbanks Fire Fighters Ass'n, 48 P.3d at 1168.  



                     See, e.g., In re Candace A. , 332 P.3d at 579 n.2 (noting that "the question  


of expert qualifications in ICWA cases is important to the public interest"); Peter A., 146  


                                                                  - 9 -                                                           7043

----------------------- Page 10-----------------------



future CINA cases.             And in many of those cases, the superior court will likely proceed  

with adjudication, mooting the probable cause determination and allowing the question  

to evade review.29  For these reasons we conclude that the public interest exception to the  

mootness doctrine applies.  

          C.	      Immediate Review Of Masters' Decisions To Return Children Home  

                   Is Necessary To Avoid Unreasonable Delay.     


                   Jennifer argues that the CINA statutes and rules together entrust standing  

masters with decisions about the placement of children, and masters should therefore  

have the authority to order children returned home without waiting for judicial review  


and confirmation.  Underlying Jennifer's argument is the problem of procedural delay.  


P.3d  at  996  n.30  (noting  that  interpretation  of  AS  47.10.011  is  important  to  public  

interest, particularly "the effect the availability of a non-offending parent willing and  

able to care for the child may have on the adjudication determination").  

          28	      CINA Rule 4(b)(4) provides:  

                             A master's report is not binding until approved by a superior court  

                   judge pursuant to Civil Rule 53(d) [defining master's report] and paragraph  


                   (f)  [discussing  objections  to  master's  recommendations]  of  this  rule,  

                   except:  .  .  a  master  may  enter  orders  without  further  approval  of  the  


                   superior court pursuant to Civil Rule 53(b) and (c), and by paragraph (d)  

                   of this rule; and . . . a master's order of removal from the home is effective  


                   pending superior court review.   

(Emphasis added).  See also CINA Rule 4(d). The rule provides nine circumstances in  


which a master may take actions without further approval by a superior court judge.  

They do not include the authority to return a child to his or her home.  



                   See, e.g., Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family  


& Youth Servs., 165 P.3d 605, 610 (Alaska 2007) (holding that parent's challenge to  


superior court's probable cause determination was moot in light of court's later decision  


adjudicating  child  in  need  of  aid,  because  court  had  to  make  same  findings  at  

adjudication stage but subject to higher standard of "preponderance of the evidence").  

                                                           -  10 -	                                                   7043

----------------------- Page 11-----------------------

We agree that the 23-day wait in this case between the master's recommendation and the   

superior court's order on review of it was unacceptable.  The superior court recognized  

this as well,30 and the delay appears to have been an aberration.   


                    Jennifer's appeal does, however, highlight an anomaly in the CINA rules'  


treatment of orders for removal of children from their homes and orders for their return.  

CINA Rule 4(b)(2)(A) provides that emergency or temporary custody hearings may be  


referred to a master.  CINA Rule 4(b)(4)(B) provides that "a master's order of removal  

from the home is effective pending superior court review."  Under CINA Rule 4(f), "[a]  


master's order removing a child from the home which is not stayed must be reviewed by  


the superior court by the end of the next working day if a party so requests."  In short,  


a master may order a child's immediate removal from the home, the order takes effect  

without judicial review, and the order must be reviewed by the superior court no later  


than the next day if immediate review is requested.  But a master's order returning the  


child to the home does not receive parallel treatment under the CINA rules; such an order  


is simply one of those not otherwise mentioned in the rules, "not binding until approved  


by a superior court judge" as provided by CINA Rule 4(b)(4).  The CINA rules are clear  

on this, and there was thus no error in the superior court's decision that the master's  

recommendation that the children be returned home was not effective until the court had  

reviewed it.  

                    We are nonetheless troubled by the rules' tacit acceptance of procedural  


delay in this context.  The CINA statutes identify two complementary goals.  Alaska  

Statute  47.10.005  provides  that  "[t]he  provisions  of  this  chapter  shall  be  liberally  


construed to . . . achieve the end that a child coming within the jurisdiction of the court  

          30        The superior court wrote in its order rejecting the master's recommendation  

that it would "work closely with the standing masters and staff to ensure more prompt  

determinations are made in the future."  

                                                              -  11 -                                                      7043

----------------------- Page 12-----------------------

under  this  chapter  may  receive  the  care,  guidance,  treatment,  and  control  that  will  


promote [1] the child's welfare and [2] the parent's participation in the upbringing of the  


                                                                                                           CINA Rule 4(b),  

child to the fullest extent consistent with the child's best interests." 


by authorizing the master to order a child's immediate removal from the home without  

further  judicial  review,  promotes  the  first  goal,  but  perhaps  at  the  expense  of  the  



second.         And "the 'right to the care and custody of one's own child is a fundamental  



right recognized by both the federal and state constitutions' "                                - "one of the most basic  

          31        See also AS 47.05.060 which identifies the purpose of Title 47 as:  

                     [T]o secure for each child the care and guidance, preferably  


                     in the child's own home, that will serve the moral, emotional,  

                    mental,  and  physical  welfare  of  the  child  and  the  best  


                     interests of the community; [and] to preserve and strengthen  


                    the   child's   family   ties   unless   efforts   to   preserve   and  

                     strengthen the ties are likely to result in physical or emotional  

                     damage to the child, removing the child from the custody of  


                    the parents only as a last resort when the child's welfare or  


                     safety or the protection of the public cannot be adequately  

                     safeguarded without removal.  



                     We note the legislative command in AS 47.10.082 that "[i]n making the  


dispositional order under AS 47.10.080(c), the court shall keep the health and safety of  


the child as the court's paramount concern." But the dispositional order follows  a finding  


that the child is in need of aid.  AS 47.10.080(c)  ("If the court finds the child is a child  


in need of aid, the court shall . . .").  After a CINA finding, the child's health and safety  

must  be  "the  court's  paramount  concern."    But  before  such  a  finding,  the  statutory  


scheme  does  not  give  different  weight  to  the  goals  identified  in  AS  47.10.005:  

promoting "the child's welfare and the parent's participation in the upbringing of the  

child to the fullest extent consistent with the child's best interests."   



                    Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children Servs.,  


175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R. , 15 P.3d 253, 257 (Alaska  


                                                              -  12 -                                                        7043

----------------------- Page 13-----------------------

of all civil liberties."34  

                     Subsections (d) and (e) of AS 47.10.142 set out the procedures governing  

emergency  custody  and  temporary  placement.    They  contemplate  that  a  temporary  


custody hearing will occur "immediately, and in no event more than 48 hours after [the  

                                                                                                       35  Continuances are  

court is] notified" that OCS has taken emergency custody of a child. 

allowed,  but  only  "on  a  showing  of  good  cause"  by  the  parent  or  guardian.36  


"[R]egardless of whether a continuance is granted," the court must "[a]t the first hearing  


. . . make a preliminary determination of whether continued placement in the home . . .  


would be contrary to the welfare of the child"; if it would not, "the court shall return the  


authority to place the child to the child's parent or guardian pending a temporary custody  




                     At  the  temporary  custody  hearing  the  court  must  "determine  whether  


probable cause exists for believing the child to be a child in need of aid"; if probable  


cause exists, the court "shall order the child committed to the department for temporary  



placement" or order the child's return to the parents subject to OCS supervision.                                                 "If  

the court finds no probable cause, it shall order the child returned to the custody of the  

child's parents or guardian."39  

                     We read these statutes as contemplating an especially expeditious process,  


          34         Id.  at  1227-28;  see  AS  47.05.065  (delineating  parents'   "rights  and  

responsibilities relating to the care and control of their child while the child is a minor").       

          35         AS 47.10.142(d).  

          36         Id.  

          37         Id.  

          38         AS 47.10.142(e).  

          39         Id.  

                                                               -  13 -                                                        7043

----------------------- Page 14-----------------------


one   in   which   the   court   makes   a   decision   and   contemporaneously   orders   its  

implementation,  regardless  of  whether  the  child  is  committed  to  OCS's  custody  or  



returned to the family home.  They do not contemplate what is essentially a two-tiered  

system  for  return  orders:    first  a  hearing  before  a  master  resulting  in  a  master's  


recommendation, and then, in time, review and final implementation by a superior court  



                   Through the CINA rules, we have superimposed on the statutory process  


                                                                                                             In doing so  

the superior court's authority to delegate certain judicial tasks to a master. 

we have exercised our constitutional authority to regulate "practice and procedure in civil  


and criminal cases in all courts,"               with the goal of promoting judicial efficiency.  While  

substantive  law  which  "creates,  defines,  and  regulates  rights"  is  the  domain  of  the  

legislature, prescribing the method of enforcing rights falls to the procedural rulemaking  


power  of  the  judiciary.               But  we  have  recognized  that  procedural  rules  can  affect  

substantive rights, and when they do we must be careful not to confuse "the concerns that  

led to the establishment of judicial rulemaking power" with "matters of public policy  


properly within the sphere of elected representatives."                             Children's welfare and the  

          40       CINA Rule 4(a) ("The presiding judge may appoint a standing master to  

conduct any or all of the C          INA  proceedings lis         ted  in  subparagraph  (b)(2)."); CINA Rule  

4(b)(2) ("The following proceedings may be referred to a master: (A) emergency or  

temporary custody hearings . . . .").  

          41       Alaska Const. art. IV,  15.  

          42       See Wade v. City of Anchorage, 439 P.2d 793, 794 (Alaska 1968).  

          43       Nolan v. Sea Airmotive, Inc. , 627  P.2d 1035, 1042-43 (Alaska 1981); see  

also Leege v. Martin, 379 P.2d 447, 450 (Alaska 1963) ("The administration of justice  

is the day to day business of the courts; they are better equipped than a legislature to  


know the most effective and efficient methods of conducting that business.").  

                                                          - 14 -                                                     7043

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parent-child relationship are particularly infused with concerns of public policy.                                           This  


requires that we be especially attentive to the effects of procedural rulemaking in cases  

like this one.  


                    The CINA rules' provision for the delegation of authority from superior  


court to master is important to the efficient functioning of the courts.  But it is not a  


reason for inordinate delay in cases in which children should be returned to their homes.  


                                                                                                     we acknowledge the  

While we decline "to rewrite the rules of practice from the bench," 


importance of this issue, refer it to the CINA Rules Committee, and make the following  

observations for the committee's consideration.46  


                    The procedural deficiency at the center of this case, as we see it, was not  

that the master could not order the immediate return of the children to their home but  

          44        See AS 47.05.065 (containing legislative findings on parents' rights and  

responsibilities relating to their minor children; state policy  with regard to families,  


children,  and  the  state's  treatment  of  children  in  its  custody  and  care;  and  studies  

regarding children's attachment and need for permanence);  Cooper v. State, 638 P.2d  


 174, 178 (Alaska 1981) ("Children in need of aid proceedings are intended to promote  


an important public interest:  the welfare of children.").  



                    Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 793 (Alaska 1981); see also  

Buchanan v. State , 561 P.2d 1197, 1209 (Alaska 1977) ("We are of the view that if  

discovery is to be expanded beyond the provisions presently contained in our Rules of  


Criminal Procedure, [it is] more appropriate that such change come through amendment  

of our existing rules of procedure after full study by this court's Standing Advisory  


Committee on Criminal Rules, the bench and the bar.").  



                    See, e.g., State v. Carlin, 249 P.3d 752, 763 n.60 (Alaska 2011) (referring  

matter of substitution of parties in a criminal case to the Standing Advisory Committee  

on  Appellate  Rules  and  noting  "the  thoughtful  consideration  of  the  issue  by  the  

Washington Supreme Court"); Irby v. Fairbanks Gold Min., Inc. , 203 P.3d 1138,  n.41  


(Alaska 2011) (referring matter of waiver of peremptory  challenges to the Standing  


Advisory Committee on the Rules of Civil Procedure); Cole v. State Farm Ins. Co., 128  


P.3d 171, 172 n.2 (Alaska 2006) (referring matter of identifying partial, final judgments  


to the Appellate Rules Committee).  

                                                              -  15 -                                                      7043

----------------------- Page 16-----------------------


rather that the master's order was not immediately reviewed by the superior court judge.  


Immediate review would be consistent with the expeditious process contemplated by the  

statute, AS 47.10.142(d) and (e).  As pointed out above, under our CINA rules parties  

have the right to request that an order removing children from the home be reviewed  


                                                                                 but there is no corresponding right  

immediately ("by the end of the next working day"), 

for  orders  returning  the  children  home.    Whether  the  master's  order  is  immediately  


effective  or  not,  we  do  not  see  why,  in  this  important  context,  the  rules  should  not  


provide the same access to judicial review.  We also note that there may be helpful  


parallels  in  civil  commitment  proceedings,  where  an  analogous  liberty  interest  is  at  




                    Pending revisions to the governing rules, when referring CINA matters to  


masters, superior courts should exercise their authority under Civil Rule 53 and CINA  


Rule 4(b) to include in the orders of reference a requirement for expedited review of any  


order for returning a child to the parents' custody.                             

          47        CINA Rule 4(f)(3).  

          48        For  initial  involuntary  commitment  proceedings,  the  legislature  has  

instituted strict time limits on decisions and their review:  "Within 48 hours after the  

completion of the [initial] screening investigation, a judge may issue an ex parte order  

orally or  in  writing, stating that there is probable cause to believe the respondent is  


mentally ill . . . .  The court shall confirm an oral order in writing within 24 hours after  


it is issued."  AS 47.30.700(a).   

          49        See Civil Rule 53(b) ("The order of reference to the master may specify or  


limit the master's powers and may direct the master to report only upon particular issues  


or to do or perform particular acts or to receive and report evidence only and may fix the  


time and place for beginning and closing the hearings and for the filing of the master's  


report."); CINA Rule 4(b) ("An order of reference specifying the extent of the master's  


authority  and  the  type  of appointment must be  entered  in  every  case  assigned  to  a  


                                                              -  16 -                                                      7043

----------------------- Page 17-----------------------

V.        CONCLUSION  

                    We AFFIRM the superior court's temporary custody order.                                  We refer the  

issue of procedural delay discussed above to the CINA Rules Committee.  

                                                             -  17 -                                                    7043

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