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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Reed S. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (12/30/2022) sp-7637
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
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
REED S., )
) Supreme Court Nos. S-18123/18133
Appellant, ) (Consolidated)
)
v. ) Superior Court No. 4FA-21-00015 CN
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 7637 - December 30, 2022
CHILDREN'S SERVICES, )
)
Appellee. )
)
)
MAKENNA S., )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeals from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Patricia L. Haines, Judge.
Appearances: Michael L. Horowitz, Kingsley, Michigan, for
Appellant Reed S. George W. P. Madeira, Assistant Public
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Defender, and Samantha Cherot, Public Defender,
Anchorage, for Appellant Makenna S. Mary Ann Lundquist,
Senior Assistant Attorney General, Fairbanks, and Treg R.
Taylor, Attorney General, Juneau, for Appellee. Nikole V.
Schick, Assistant Public Advocate, Fairbanks, and James
Stinson, Public Advocate, Anchorage, for Guardian ad Litem.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A child was severely injured while in his father's care. The father did not
immediately seek medical help and gave conflicting explanations of how his son's injury
occurred. The superior court found probable cause to believe that the child was in need
of aid, limited the father's contact with the child and mother, and awarded the mother
custody. A few months later the father was arrested outside the family home, and
evidence suggested that the mother had allowed contact between him and their son in
violation of military and civil no-contact orders. The superior court adjudicated the boy
as a child in need of aid based on the actions of both parents. The parents separately
appealed the adjudication. But after the appeals were filed, the Office of Children's
Services (OCS) informed the superior court that the child could safely be returned to his
parents' care, and the superior court closed the case.
On appeal the parents argue that their appeals were mooted by the superior
court's dismissal of OCS's case and that we should decline to hear the appeals and vacate
the adjudication order to avoid the potential for collateral consequences. In the
alternative, they argue that if this case is heard on the merits we should find that the
superior court erred in adjudicating their son as a child in need of aid. We conclude that
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we should hear the appeals on the merits, and we therefore do not vacate the adjudication
order. On the merits, we affirm the order.
II. FACTS AND PROCEEDINGS
A. Kendall's Injury
Kendall was born in July 2019 to Makenna and Reed S.1 Reed was serving
in the U.S. Army at all times relevant to this case. Makenna is an Emergency Medical
Technician (EMT). Their son has autism and is largely nonverbal.
One evening in January 2021 Reed was home taking care of 18-month-old
Kendall while Makenna was attending class. Reed texted Makenna and told her Kendall
had been hurt. Makenna asked a friend to check on them. When the friend arrived and
saw Kendall, she told Reed they needed to call an ambulance immediately because the
child's leg "definitely was broken or dislocated or something." Kendall was taken to the
hospital, where he was diagnosed with a spiral fracture of his femur, underwent surgery,
and was placed in a cast from his chest down.
Reed gave different explanations of how the injury happened. A police
officer testified that Reed told him Kendall was "playing with some lotion" in the
bedroom closet, and when Reed tried to take the lotion away, Kendall "ran from him and
slipped on the . . . linoleum floor." Reed told the officer he called 911 about 20 minutes
later. An Army criminal investigator testified that Reed later told him Kendall "was
playing on . . . the bed, got excited, . . . fell off the bed and hit his knee on the floor."
Later in the same interview Reed said that he "managed to grab" Kendall as he fell off
the bed, "picked him up as he grabbed him, and [Kendall] like twisted in his hand and
then . . . fell out of his hand and hit the floor."
1 Pseudonyms are used for all family members.
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The police reported the incident to OCS because Reed's explanations
seemed inconsistent. Several weeks later Reed acknowledged to an OCS worker that he
had initially lied about how the injury happened, but he stood by the third version.
According to the OCS worker, Reed said he had not realized Kendall's leg was broken
at first and thought he was just throwing a tantrum. He texted Makenna when he noticed
that Kendall's leg was "super swollen." He had lied, he said, because he was worried
about OCS involvement.
B. Military Protective Order And OCS Involvement
The day after the incident a military protective order was issued precluding
Reed from having contact with Kendall and going within 300 feet of the family home.2
Reed moved into barracks. OCS took emergency custody of Kendall, placed him with
a foster parent, and filed an emergency petition for adjudication of Kendall as a child in
need of aid (CINA). OCS coordinated separate visitation for Reed and Makenna.
The superior court held a probable cause hearing and, based on the parents'
stipulations without admission, found probable cause that Kendall was a child in need
of aid. The court also found that it was "contrary to [Kendall]'s interest to be in the
home with" Reed but allowed Makenna to resume custody on condition that she "abide
by all existing military or civil domestic violence restraining orders" and not allow Reed
to "have any contact with the child except as authorized and approved by OCS."
Kendall was returned to Makenna's care. Reed had OCS-supervised visits
which reportedly went well until partings proved too stressful for Kendall; visitation then
continued by phone and video. By the time of the adjudication trial - about five months
after Kendall's injury - Reed had made significant progress on his OCS case plan,
2 A successive order, issued May 17 due to a change in Reed's command,
remained in effect at the time of the adjudication trial.
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including attending classes and therapy; he had also worked with the military's Family
Advocacy Program (FAP). Makenna mostly declined to participate in OCS services,but
she did allow OCS to tour her home for purposes of creating an in-home safety plan, and
she talked with an FAP provider.
In April Makenna filed a motion to dismiss OCS's petition for adjudication.
She argued that she had shown she was capable of protecting Kendall and was "a non-
offending, safe parent." The guardian ad litem did not oppose the motion; OCS did.
C. Unauthorized Contact Between Reed And Kendall
On May 12 a friend of Makenna's picked up Reed from the barracks and
drove him to the family home, later testifying that she was acting at Makenna's request.
After dropping Reed off, the friend told Reed's commander's wife what she had done.
Police officers were dispatched, and they arrested Reed in his driveway for violating the
military protective order. OCS filed a non-emergency petition for a CINA adjudication
and temporary custody, alleging that Makenna had allowed contact between Reed and
Kendall contrary to both the military protective order and the no-contact provision of the
court's temporary custody order. Around the same time, the Army brought felony court
martial charges against Reed for child abuse and violation of the military protective
order.
D. Adjudication Trial
The superior court held an adjudication trial in early June 2021. Several
witnesses testified about Kendall's injury. A responding police officer said that when
he arrived on the scene Kendall "was obviously in pain and injured." A pediatric nurse
who helped treat Kendall said that if OCS had not already been notified she would have
reported the incident herself because of "reports of inconsistent stories about the
mechanism of injury." A doctor who saw Kendall for a follow-up appointment
explained that a spiral fracture like Kendall's would be painful and likely result in
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"inconsolabl[e] crying" and other "signs of pain." She also said that "significant force"
would be required to break a femur, and that the type of fracture "indicates that the bone
was being twisted as it broke." Although she agreed that it is "not impossible for a kid
to get a femur fracture from normal roughhousing play," she did not think it likely that
a fall from a bed of the reported height could cause such an injury. She testified that
when different stories are told about an incident, "that in and of itself is concerning . . .
and would require reporting," as would a situation in which a "consistent story [is told]
that doesn't fit the mechanism" of injury.
Reed and Makenna both testified. Reed invoked "his Fifth Amendment
privilege against self-incrimination as to any question regarding the [military protective
3
order] or going to the house and also as to any alleged injury to [Kendall]." Makenna
testified that although she recognized that Reed had initially lied about how Kendall was
injured, she believed his final version of the event and did not think he had intentionally
hurt the child. She testified that doctors never raised any other concerns about her or
Reed's parenting.
Other testimony, including that of arresting officers, described what
occurred at the family home on May 12. An officer testified that two of the officers went
to the front door while a third watched the back of the house. Makenna answered the
door and told them Reed was not there. The officers decided to get a search warrant.
One officer was waiting outside in an unmarked patrol car when the friend who had
dropped Reed off returned, walked into the covered entryway, and reemerged with Reed.
The officer took Reed into custody for violating the military protective order.
3 OCS asked at trial that the superior court draw an adverse inference from
Reed's claim of privilege under Alaska Rule of Evidence 512(e). The court declined to
apply the inference in its decision "because a preponderance of the evidence establishes
that [Kendall] is a child in need of aid even without applying the inference."
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The friend who drove Reed to the house testified that Makenna had asked
her to do so. She said Makenna and Reed told her that while Makenna was at the door
talking to the police, Reed was in the basement with Kendall. She said she spoke with
Reed and Makenna inside the house before Reed was arrested and that Reed then left
with her through the front door. She also testified that Makenna had told her Reed "ha[d]
been coming over [to the house] for several weeks usually at the end of the day or during
the weekend." She said that Makenna "kind of hinted" she had previously left Reed
alone with Kendall, but the friend was not sure that had actually happened. She testified
she did not consider Reed to be a danger to Kendall, and she only made a report because
as a nurse she was a mandatory reporter.
Makenna told a different story about the May 12 incident. She said she was
"surprised" when Reed arrived and that it was he who had asked her friend for a ride.
She testified that when Reed knocked on the door Kendall was in his highchair. She said
that Reed stepped into the arctic entryway but she did not invite him in; instead she told
him to leave, and he did not come in any farther. She testified that they spoke for 10 to
15 minutes before he left and that Kendall never saw him. She denied telling her friend
that Kendall and Reed had hidden together in the basement or that Reed had visited on
other occasions.
Makenna testified about the police then coming to the door, asking for her
identification, and inquiring about Reed. She said she denied he was there, went to get
her ID, and grabbed Kendall from his highchair; she testified that the child was "a really
good climber" and she worried about him falling out of the highchair if left unattended.
She returned to the door with Kendall. The police asked to come inside and she told
them to get a warrant. After they left, the friend returned and told Makenna she was
taking Reed back to the barracks, and Makenna and Kendall then went about the rest of
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their evening activities. As she was getting Kendall ready for a bath, the friend knocked
on the door again and told her Reed had been arrested.
The OCS caseworker assigned to the family also testified. She said she
continued to "have safety concerns with both [Makenna] and [Reed] due to a history of
being dishonest." She said Makenna did "not believe that [Reed] is dangerous" but that
OCS "still ha[d] concerns regarding his mental health and his safety being around the
child." She did not think "that [Makenna] would accurately report if something unsafe
did happen with anyone involving their interactions with the child." The caseworker also
stated that she had only met Kendall in person twice because Makenna had limited
OCS's contact with him. And she testified that Makenna had sent her aggressive texts
and phone calls and was angry that OCS had not been able to get the military protective
order lifted. She testified that OCS's current goal was to maintain legal custody and
some supervision of Kendall, but that the agency was comfortable leaving Kendall in
Makenna's home as long as there was a safety plan in place.
Another family acquaintance testified that in April she had often spent
Friday nights and Saturdays at Makenna's house, babysitting Kendall while Makenna
attended classes. She said she never saw Reed during that time and had never been asked
to bring him over for a visit. Reed's roommate in the barracks testified that he had never
met Makenna or Kendall, that no one ever asked him to drive Reed to the family's house,
and that Reed spent most of his time at the barracks and left only infrequently.
E. The Superior Court's Findings
The superior court found by a preponderance of the evidence that Kendall
was a child in need of aid under AS 47.10.011(6) (substantial physical harm or
substantial risk of substantial physical harm) and (9) (neglect) due to the actions of both
Makenna and Reed. With respect to Reed, the court cited "the very serious injury
[Kendall] suffered while in [Reed]'s care, [Reed]'s dishonesty about how [Kendall]
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suffered that injury, and [Reed]'s failure to obey orders limiting his contact with
[Kendall]." As for Makenna, the court emphasized "her failure to protect [Kendall] from
the ongoing risk of injury from [Reed] by allowing in-person contact with [Reed] in
violation of a court order and a military protective order, despite her knowledge of the
injury [Kendall] suffered in [Reed]'s care." The court acknowledged that Makenna did
not consider Reed a threat to Kendall, but it reasoned that her disagreement with the
orders was irrelevant. The court left Kendall in Makenna's custody "subject to [OCS's]
supervision of [his] care and treatment."
Both parents appealed the CINA adjudication.
F. Post-Adjudication Proceedings
The superior court issued a disposition order in August 2021, stating that
Kendall continued to be a child in need of aid. But in September OCS filed a motion
asking the court to "releas[e] custody of [Kendall], releas[e OCS] from all liability for
this child, and clos[e] this case." In an attached affidavit, the OCS caseworker attested
that "there [were] no active safety concerns and OCS no longer need[ed] to be involved
with this family." OCS specifically cited "the protective factors in place and [Reed's]
progress" in fulfilling his case plan as the reasons for its motion. The court granted the
motion and closed the case.
Makenna and Reed each filed a motion in this court asking that we vacate
the CINA adjudication order and dismiss their appeals as moot. We denied those
motions and subsequent motions for reconsideration.
III. DISCUSSION
A. We Decide These Moot Appeals On Their Merits And Decline to
Vacate The Adjudication Order.
Makenna and Reed argue that their appeals are moot because of the superior
court's dismissal of OCS's case and that we should therefore decline to reach the merits
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and vacate the adjudication order finding Kendall to be a child in need of aid. As "a
matter of judicial policy, mootness presents a question of law" to which we "apply our
independent judgment."4
1. Although the appeals are moot, we decide them on their merits
because of the adjudication order's potential collateral
consequences.
5
"A claim is moot if it has lost its character as a present, live controversy."
"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."6 Quoting Peter A. v. State,
Department of Health & Social Services, Office of Children's Services, OCS agrees that
the parents' appeals are "moot in that '[o]nce the superior court dismissed the case, the
[S]tate lost the power granted it by the adjudication order to interfere with [the] family'7
on the child protection matter." But the adjudication order - finding that Kendall was,
at the time, a child in need of aid due to his parents' conduct or due to conditions they
created - stands unless and until it is vacated or reversed. The first question we must
address is whether, despite the appeals' mootness, the adjudication order has
consequences that justify its appellate review. The collateral consequences exception to
the mootness 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
4 Peter A. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 146
P.3d 991, 993-94 (Alaska 2006).
5 Id. at 994 (quoting Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 523
(Alaska 1993)).
6 Id. (quoting Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776
(Alaska 2001)).
7 Id.
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8
rules or as a matter of practical effect.' " The collateral consequences exception thus
allows us to hear an otherwise moot case on the merits.9
Certain CINA adjudications may result in statutorily imposed consequences
for parents who are deemed responsible for their child's CINA status. Statutes direct the
executive branch to "establish by regulation civil history standards for denial of issuance
or renewal of [certain types of] license or certification" when the applicant is a "parent
. . . of a child who is or was the subject of a child-in-need-of-aid petition under AS 47.10
and the individual had custody of the child at the time" of the petition, or when the parent
was involved in a court proceeding which resulted in "a substantiated finding of child
abuse or neglect" under AS 47.10 related to the parent's care.10 Administrative
regulations impose a 10-year barrier to licensing for certain jobs that require background
checks "based upon a civil finding relating to abuse, neglect, or exploitation of a
child . . . under AS 47.10 . . . for any case that did not result in the termination of parental
rights."11 Makenna argues based on these laws that the adjudication order "precludes her
from earning a livelihood in her profession [as an EMT] for the next decade." We do not
need to decide whether Makenna's interpretation of these laws will ultimately prove to
be correct; we do agree that the restrictions appear potentially burdensome enough to
8 Id. at 994-95 (quoting 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER
& EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3533.3, at 291 (2d
ed.1984)).
9 In re Hospitalization of Joan K., 273 P.3d 594, 597-98 (Alaska 2012).
10 AS 47.05.325(a)(1); AS 47.05.330(a)(3).
11 7 Alaska Administrative Code (AAC) 10.905(f)(3) (2020); AS 47.05.300;
see also 7 AAC 10.990(a)(11) (defining such a "civil finding" to include an
"adjudication . . . that a provider or applicant committed . . . abuse, neglect, or
exploitation under AS 47.10").
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"justif[y] an exception to mootness under the collateral consequences doctrine." We
therefore will review this otherwise moot case on the merits.
2. Equity does not require vacatur of an order that is reviewable
on its merits.
As Makenna also points out, however, the existence of collateral
consequences does not require that we reach the merits of a moot case. We may instead
avoid the collateral consequences by vacating the underlying order - if we first
determine that vacatur is required by principles of equity.12 Makenna and Reed argue
that we should resolve this case in just that way: decline to hear it on mootness grounds
and mitigate the collateral consequences by vacating the adjudication order.
In the 1980s we approved the federal practice of "revers[ing] or vacat[ing]
the judgment below and remand[ing] the case, with directions to dismiss the complaint,"
when a judgment was mooted while on appeal.13 As the United States Supreme Court
explained in United States v. Munsingwear, Inc., this practice "prevent[s] a judgment,
unreviewable because of mootness, from spawning any legal consequences."14 It "clears
12 See Peter A., 146 P.3d at 995-97 (when appeal was mooted by OCS
dismissal of CINA case, declining to review case on merits, vacating order for equitable
reasons, and thus avoiding possible collateral consequences).
13 City of Valdez v. Gavora, Inc., 692 P.2d 959, 960 (Alaska 1984) (citing
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).
14 Munsingwear, Inc., 340 U.S. at 41. We note that in Alaska mootness is
never an absolute bar to appellate review, as the doctrine "is a matter of judicial policy,
not constitutional law." RLR v. State, 487 P.2d 27, 45 (Alaska 1971). Mootness in
Alaska "does not act as a limit on jurisdiction," "unlike its federal counterpart." Regul.
Comm'n of Alaska v. Matanuska Elec. Ass'n, 436 P.3d 1015, 1027 (Alaska 2019). When
analyzing claims of mootness, we "should first look to [our] own precedent and statutes."
Bowers Off. Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 (Alaska 1988); cf.
Falcon v. Alaska Pub. Offs. Comm'n, 570 P.2d 469, 475 (Alaska 1977) ("Since the
(continued...)
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the path for future relitigation of the issues between the parties and eliminates a
judgment, review of which was prevented through happenstance." 15 The Supreme Court
later clarified in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership that because
vacatur is an equitable remedy, courts should determine whether it is appropriate on a
case-by-case basis.16 In making this determination, federal courts look principally to
"whether the party seeking relief from the judgment below caused the mootness by
voluntary action," though they "must also take account of the public interest."17
Although vacatur typically arises as a remedy when the case is
unreviewable because of mootness,18 Makenna and Reed argue that these principles, as
we applied them in Peter A., require vacatur here. In Peter A. a couple's children were
removed from their mother's care while their father, Peter, was hospitalized and
temporarily incapacitated.19 Once he was healthy and able to parent, OCS placed the
14 (...continued)
requirement of adversity is neither federally mandated nor required by the Alaska
Constitution, the court's requirement of adversity as a component of standing is
essentially a judicial rule of self-restraint."). But federal precedent is nonetheless helpful.
State v. ACLU of Alaska, 204 P.3d 364, 368 n.11 (Alaska 2009).
15 Munsingwear, Inc., 340 U.S. at 40.
16 513 U.S. 18, 24-25 (1994) ("From the beginning we have disposed of moot
cases in the manner ' "most consonant to justice" . . . in view of the nature and character
of the conditions which have caused the case to become moot.' " (quoting United States
v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 477-78
(1916) (cleaned up))); see also Peter A., 146 P.3d at 995 (explaining that U.S. Bancorp
"clarified that not all moot claims require vacatur").
17 U.S. Bancorp Mortg. Co., 513 U.S. at 24, 26.
18 See, e.g., Gavora, Inc., 692 P.2d at 960-61.
19 Peter A., 146 P.3d at 992-93.
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children with him on a trial basis.20 The superior court then adjudicated the children in
need of aid based solely on the mother's conduct, giving Peter continued custody subject
to OCS supervision.21 About five weeks later OCS, concluding that the children were
no longer at risk, moved to dismiss and the superior court granted the motion.22 Peter
appealed the adjudication order.23
We decided that Peter's appeal was moot because he could not
"show . . . that concrete relief would be available to him if this court reversed the
adjudication order."24 We further noted, however, that we could reach the merits of the
appeal if an exception to the mootness doctrine - such as the collateral consequences
exception - applied.25 Peter pointed to AS 47.10.011(10), which provided that a child
adjudicated in need of aid due to a parent's substance abuse is later presumed to be in
need of aid if the parent resumes the substance abuse within a year, and
to AS 47.10.011(9), which provided that a child can be adjudicated in need of aid based
on past neglect of another child in the same household.26 We "assume[d] for the sake of
discussion that [these two statutes] potentially create[d] collateral consequences," but we
concluded that we could still determine the appeal to be moot because equity required
vacatur of the adjudication order, and therefore Peter would suffer no collateral
20 Id. at 993.
21 Id.
22 Id.
23 Id.
24 Id. at 994.
25 Id. at 994-95.
26 Id. at 994.
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consequences.27 We noted our earlier adoption of the seemingly broad federal rule that
a holding of mootness invariably required vacating the judgment below.28 We observed:
"[W]hen a prevailing party voluntarily moots a case, without the appellant's
acquiescence, the appellant, through no fault of his own, is prevented from obtaining
appellate review of his claim," and "principles of equity require vacatur of the challenged
order in such a case."29 We were able to resolve Peter A. through vacatur instead of
hearing the case on the merits because nothing in the record indicated any dispute as to
Peter's fitness as a parent.30 The adjudication order finding his children in need of aid
and the subsequent dismissal of the case were both wholly unrelated to Peter's conduct
and yet left Peter without an avenue for appellate review.31 His "entitlement . . . [to]
vacatur" was evident.32
We also recognized in Peter A., however, "that not all moot claims require
vacatur," though we found it unnecessary to decide whether Munsingwear 's broad rule
27 Id. at 995-96.
28 Id. at 995 (citing City of Valdez v. Gavora, Inc., 692 P.2d 959, 960 (Alaska
1984); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).
29 Id .
30 See id. at 993, 997 (describing the adjudication order finding Peter's
children in need of aid as based entirely on Peter's wife's conduct, and later noting that
"[c]ases in which the state releases custody of the children and thereby moots a fit
parent's appeal are presumably only a subset of those cases in which" the issue of
"whether children can be adjudicated in need of aid over the objections of one available
fit and willing parent" "could arise, and in that subset of cases, relief is available in the
form of vacatur").
31 See id. at 994-95.
32 See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26
(1994).
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favoring vacatur "should be narrowed in light of the Supreme Court's discussion in U.S.
Bancorp."33 We now conclude that U.S. Bancorp lays out appropriate guideposts for
deciding whether vacatur is appropriate in a given case.
The issue in U.S. Bancorp was "whether appellate courts in the federal
system should vacate civil judgments of subordinate courts in cases that are settled after
appeal is filed or certiorari sought."34 The Supreme Court noted the parties' agreement
in that case "that vacatur must be decreed for those judgments whose review is, in the
words of Munsingwear, ' "prevented through happenstance" ' - that is to say, where
a controversy presented for review has 'become moot due to circumstances
unattributable to any of the parties.' "35 The Court explained Munsingwear 's "reference
to 'happenstance' . . . as an allusion to this equitable tradition of vacatur," providing that
"[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the
vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment."36
The Supreme Court's discussion of "happenstance" as integral to the
"equitable tradition of vacatur"37 is particularly relevant here. Unlike the father in Peter
33 Peter A., 146 P.3d at 995 & n.25.
34 U.S. Bancorp Mortg., 513 U.S. at 19.
35 Id. at 23 (quoting Karcher v. May, 484 U.S. 72, 82, 83 (1987)). The parties
in U.S. Bancorp "also agree[d] that vacatur must be granted where mootness results from
the unilateral action of the party who prevailed in the lower court," id., a circumstance
we do not find relevant here. Although it was OCS that moved to dismiss the CINA
case, we agree with its observation that it was "because of the parents' actions and the
parents' progress [that] OCS [took] the step to request that the child protection case be
closed."
36 Id. at 25.
37 Id.
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A. who was urging us to consider his appeal on the merits,38 Reed and Makenna are not
"seek[ing] review of the merits of an adverse ruling" and being "frustrated by the
vagaries of circumstance."39 They rather seek to avoid review on the merits, and review
is not "frustrated" at all because we are willing to consider their appeal under the
collateral consequences exception to the mootness doctrine. Reed and Makenna's
circumstances thus place them on the preferred pathway for litigants who seek to
challenge a trial court's ruling: appellate review on the merits.40
The Supreme Court in U.S. Bancorp further observed that "[a]s always
when federal courts contemplate equitable relief, our holding must also take account of
the public interest."41 The statutes Makenna cites as demonstrating the adverse
consequences of the CINA adjudication order are directly connected to the public
interest; they seek to promote public safety by ensuring that persons with certain histories
of abuse or neglect are not given responsibility over particularly vulnerable people.42
38 Peter A. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 146
P.3d 991, 992, 994 (Alaska 2006).
39 U.S. Bancorp Mortg. Co., 513 U.S. at 25.
40 See id. at 27 (noting that in ordinary course lower court judgments can be
disturbed only through appellate avenues established by Congress and explaining that
allowing party "to employ the secondary remedy of vacatur as a refined form of
collateral attack would . . . disturb the orderly operation of the . . . judicial system").
41 Id. at 26.
42 AS 47.05.300-.330. In Peter A. we assumed there would be collateral
consequences "for the sake of discussion," but they appeared to be largely theoretical.
146 P.3d at 995. Makenna makes a plausible argument that the adjudication order could
impact her continued employment as an EMT. In Peter A. we "express[ed] no opinion
about Peter's interpretation of" the two statutes he cited "or whether they may give rise
to post-dismissal consequences adverse to him"; we do the same here. Id. at 995 n.20.
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The evident statutory purposes weigh against vacatur in lieu of review on the merits.
And public interest generally favors appellate review when possible. According to the
Supreme Court in U.S. Bancorp, "Munsingwear establishes that the public interest is best
served by granting relief when the demands of 'orderly procedure' . . . cannot be
honored; we think conversely that the public interest requires those demands to be
honored when they can."43
Finally, we emphasize the Supreme Court's admonition in U.S. Bancorp
that it is the burden of "the party seeking relief from the status quo of the [judgment
below]" to demonstrate its "equitable entitlement to the extraordinary remedy of
vacatur."44 Reed and Makenna have not shown their entitlement to an extraordinary
remedy. We again contrast this case to Peter A., where, as OCS aptly explains, "a non-
offending parent defend[ed] against an adjudication based on the sole conduct of the
offending parent." We vacated the adjudication order as a matter of equity. Unlike the
father in Peter A., neither Reed nor Makenna was blameless, as we discuss further
below. In seeking vacatur of the adjudication order, they seek to escape not the
consequences of another's actions unfairly attributed to them but rather the consequences
the legislature has prescribed for their own actions. Equity does not favor vacatur under
such circumstances.
To summarize: Equity allows the court to vacate an order that is
unreviewable because of mootness. But when we are willing to review the challenged
43 U.S. Bancorp Mortg. Co., 513 U.S. at 27 (quoting United States v.
Munsingwear, Inc., 340 U.S. 36, 41 (1950)).
44 Id. at 26. Peter A. emphasized the equitable nature of the remedy. 146 P.3d
at 992 ("[B]ecause we vacate the adjudication order as a matter of equity, Peter will
suffer no collateral consequences from the adjudication."); id. at 995 ("We agree with
the United States Supreme Court that principles of equity require vacatur of the
challenged order in such a case.").
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order despite its mootness - as we are here - there is no need to consider "the
secondary remedy of vacatur"45 as a substitute for an appellate decision on the merits.
B. The Superior Court's Finding That Kendall Was A Child In Need Of
Aid Under AS 47.10.011(6) Based On Both Reed's And Makenna's
Conduct Was Not Clearly Erroneous.
The superior court adjudicated Kendall as a child in need of aid based on
both Makenna's and Reed's conduct under AS 47.10.011(6) (physical harm) and (9)
(neglect). At an adjudication hearing OCS "has the burden of proving by a
preponderance of the evidence that the child is a child in need of aid."46 In other words,
the court must conclude that "it [i]s more likely than not" that the child is in need of aid.47
Whether a child is in need of aid is a factual determination we review for
clear error.48 "A finding is clearly erroneous if we are left with a definite and firm
conviction that the trial court made a mistake,"49 based on "a review of the entire record
in the light most favorable to the party prevailing below."50 "Conflicting evidence is
generally insufficient to overturn the superior court, and we will not reweigh evidence
when the record provides clear support for the superior court's ruling."51 "Whether a
45 See U.S. Bancorp Mortg. Co., 513 U.S. at 27.
46 Alaska CINA Rule 15(c); see also AS 47.10.011.
47 In re T.P., 838 P.2d 1236, 1242 (Alaska 1992).
48 Theresa L. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
353 P.3d 831, 837 (Alaska 2015).
49 Id.
50 Audrey H. v. State, Off. of Child.'s Servs. , 188 P.3d 668, 672 (Alaska 2008).
51 Maisy W. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 175
P.3d 1263, 1267 (Alaska 2008) (citation omitted).
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trial court's findings satisfy the relevant statutory requirements is a question of law that
we review de novo."52
1. The superior court's finding that Kendall was a child in need of
aid under AS 47.10.011(6) based on Reed's conduct was not
clearly erroneous.
Under AS 47.10.011(6), a court may conclude that a child is in need of aid
if it finds that "the child has suffered substantial physical harm, or there is a substantial
risk that the child will suffer substantial physical harm, as a result of conduct by or
conditions created by the child's parent . . . or by the failure of the parent . . . to supervise
the child adequately." In determining that "it is more likely true than not that [Kendall]
is a child in need of aid under AS 47.10.011(6)," the superior court found that Reed
"ignored [Kendall] who was likely crying inconsolably and clutching his leg in pain for
at least an hour" before he called 911 at the urging of Makenna's friend. The court also
noted the testimony of a treating pediatric specialist, who testified that the femur is not
easily broken, that a break like Kendall's would require a significant amount of force,
and that the injury would likely cause substantial pain and inconsolable crying. The
court noted Reed's conflicting stories and the fact that Reed now admitted that two of
them were false. The court further observed, "There is nothing to recommend [Reed]'s
third version of events as the truth, other than the fact that he has persisted in claiming
it longer than his prior two admitted lies." The court noted Reed's strong incentive to
lie about the incident, his history of lying about it, his story's lack of detail, and his
failure to seek immediate medical attention for Kendall. On the whole, the court found
that it was more likely than not that Kendall's femur fracture was caused by Reed's
conduct or by conditions he created.
52 Audrey H. , 188 P.3d at 672-73.
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Reed argues that there was insufficient evidence to support this finding or
a finding that Kendall was at a substantial risk of suffering harm in the future because of
his conduct. He argues "that there was no history of abuse allegations . . . and no
evidence of any prior injuries of any other sort." He contends that "OCS presented
sufficient evidence to show that maybe [Reed] was somehow responsible for [Kendall]'s
injury, but certain[l]y not that it was more likely than not." (Emphasis in original.)
But our review of the record does not leave us with "a definite and firm
conviction that the trial court made a mistake"53 when it found it more likely than not that
Kendall's injury was a result of Reed's actions or omissions. This finding was not
clearly erroneous. And applying our independent judgment, we conclude that the
superior court's factual findings are legally sufficient to support a finding of CINA status
under AS 47.10.011(6), substantial risk of harm, based on Reed's conduct.
2. The superior court's finding that Kendall was a child in need of
aid under AS 47.10.011(6) based on Makenna's conduct was not
clearly erroneous.
The superior court's risk of harm finding with regard to Makenna did not
rest on Kendall's injury,54 but rather on her conduct in allowing contact between Reed
and Kendall in violation of the military and superior court no-contact orders. The court
did "not find [Makenna]'s testimony reliable with regard to preventing [this]
unauthorized contact." Focused on the events of May 12, the court noted that "[u]nder
[Makenna]'s timeline [of that day], there is an unexplained gap of significant length -
twenty to thirty minutes before the police arrived, and then some additional time after she
requested they get a warrant but before [the friend] returned - in which [Reed]'s
53 See Theresa L., 353 P.3d at 837.
54 The court found that "[Makenna] was not present in the home when
[Kendall] was injured" and that she "had no role in the injury."
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whereabouts are unexplained." The court also noted an inconsistency between
Makenna's testimony that she left Kendall alone while she talked to Reed for 10 to 15
minutes in the arctic entryway and her testimony that when she talked to the police
officers she brought Kendall to the door because she did not want to leave him
unattended. The court found that Makenna's "concern for leaving [Kendall]
unsupervised in the high chair [was] more credible than her claim that she left him alone
for a quarter of an hour while she chatted with [Reed] out of sight of [Kendall]." The
court concluded that it was likely Reed was in the house at the time and therefore in
violation of the military and civil no-contact orders.
We read the court's findings regarding Makenna's conduct as taking into
account more than just the May 12 incident. The court also cited her friend's testimony
that Makenna "had confessed to her that [Reed] had been coming over to the house for
several weeks, often in the evenings and on weekends, to see [Makenna] and [Kendall]."
The court did not explicitly accept this allegation as true, but its findings about
Makenna's credibility and her general resistance to the civil and military no-contact
orders indicate that the court considered the May 12 incident to be only the most visible
violation in a troublesome course of conduct. The court wrote that it did "not find
[Makenna's] testimony reliable with regard to preventing unauthorized contact between
[Reed] and [Kendall]." It noted Makenna's "significant frustration with the military
protective order, and with the manner in which [Reed's] chain of command reacted to
the incident involving [Kendall's] broken femur." It wrote that while Makenna was
"sincere in her desire to protect [Kendall], her actions during the pendency of this case
call into question her ability to do so" (emphasis in original), and it cited Makenna's
"failure to protect [Kendall] from subsequent contact with his father" as grounds for its
CINA adjudication.
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Makenna acknowledges the superior court's finding that she "had not
prevented contact between Kendall and his father," but she argues that "[t]he mere fact
that the contact was unauthorized did not render it a substantial risk of physical harm."
Further, she contends, "[t]he extensive OCS-approved contact between Reed and Kendall
belies OCS's claim about its inherently dangerous nature." Makenna contrasts this case
with Burke P. v. State, Department of Health & Social Services, Office of Children's
Services,55 in which we found that a father had exposed his children to a substantial risk
of physical harm by not preventing abuse by their mother, arguing that the behavior in
that case was far more extreme than it is here.56 She also argues that the May 12 contact
took place under substantially different circumstances than did the January incident:
Reed was not solely responsible for Kendall, the visit was brief, and Makenna was there
the whole time.
OCS points to the findings about Kendall's initial injury, the contact
restrictions imposed by the military and civil no-contact orders, and Makenna's flouting
of those orders. OCS argues that violation of the orders was "[o]n its face . . . enough
to establish a substantial risk of harm." It argues that "giving Reed access to Kendall
was a per se threat to his physical [safety]."
We do not need to decide whether Makenna's disregard of the orders' no-
contact restrictions was sufficient by itself to support a CINA finding under
AS 47.10.011(6). The evidence allowed the court to find that Makenna did not
sufficiently appreciate the risk to Kendall's safety that the no-contact orders were
intended to address. In addition to the testimony about the May 12 incident, we note the
testimony - including from Makenna herself - that she did not believe Reed presented
55 162 P.3d 1239 (Alaska 2007).
56 Id. at 1244.
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a threat to Kendall. The OCS caseworker testified that Makenna's attitude made the
worker "very hesitant to believe that [she] would accurately report if something unsafe
did happen with anyone involving their interactions with the child." Given the evidence,
and the preponderance standard of proof that governs the CINA finding at the
adjudication stage,57 we cannot say that the superior court clearly erred by finding that
Kendall was at a substantial risk of substantial physical harm due to Makenna's
conduct.58 Its findings satisfy the statutory standard. We therefore affirm the court's
finding that Kendall was a child in need of aid due to Makenna's conduct under AS
47.10.011(6).
A CINA adjudication needs only one ground to support it.59 Because we
affirm the superior court's findings that Kendall was a child in need of aid under AS
47.10.011(6), we do not reach its findings of neglect under subsection (9).
V. CONCLUSION
We AFFIRM the superior court's order adjudicating Kendall as a child in
need of aid.
57 AS 47.10.011.
58 AS 47.10.011(6).
59 See, e.g., Annette H. v. State, Dep't of Health & Soc. Servs., Off. of Chid.'s
Servs., 450 P.3d 259, 265-66 (Alaska 2019).
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