123 P.3d 646


No. S-11378.

Supreme Court of Alaska.

Aug. 5, 2005.

Rehearing Denied Nov. 22, 2005.

*647Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

Michael G. Hotchkin, Assistant Attorney General, Anchorage, and David W. Marquez, Attorney General, Juneau, for Appellee.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.


EASTAUGH, Justice.


Alyssa B.1 argues that the superior court erred by denying her request for a jury trial during adjudication of the question whether her daughter was a child in need of aid, and by ordering Alyssa to undergo a pre-adjudi-cation psychological evaluation. We affirm. There is no right to a jury trial in child-in-need-of-aid (CINA) proceedings and it was not an abuse of discretion to order a psychological evaluation in this case.


In May 2002 Superior Court Judge Eric Smith found probable cause to believe that Alyssa B.’s daughter was a child in need of aid and ordered that the child be committed to the temporary custody of the Alaska Department of Health and Social Services. The department discontinued visitation between Alyssa and her daughter that summer due to Alyssa’s misbehavior during visits. The department informed Alyssa that she would need to undergo a psychological evaluation because it believed she had a mental illness. The department filed an amended petition in March 2003 seeking an adjudication that Alyssa’s daughter was a child in need of aid; the petition alleged in part that Alyssa “suffers from a mental illness or a[n] emotional disturbance that places the child at substantial risk of physical harm or mental injury.”

Alyssa requested a jury trial for the adjudication hearing. She also asked the superi- or court to find that the department had abused its discretion by requiring her to undergo a psychological evaluation before it would allow her to resume visitation with her daughter. The superior court denied Alyssa’s request for a jury trial and granted the department’s cross-motion requesting that Alyssa be ordered to submit to a psychological evaluation. Following the adjudication hearing, the superior court held that Alyssa’s daughter was a child in need of aid. The superior court entered a disposition order in *648January 2004 committing Alyssa’s daughter to the department’s custody.

Alyssa appeals.2


A. Standard of Review

Denial of a motion for a jury tidal raises a question of law that we review de novo.3 We review constitutional questions using our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy.4 We exercise our independent judgment when interpreting Alaska’s procedural rules,5 including the CINA rules. Whether a trial court has the authority to require a party to submit to a psychological evaluation presents an issue of law that we review exercising our independent judgment.6 We review an order requiring a party to participate in a psychological examination under Alaska Civil Rule 35(a) for abuse of discretion.7

B. There Is No Right to a Jury Trial in CINA Proceedings in Alaska.

Alyssa argues that she was entitled to a jury trial at the CINA adjudication hearing under either article I, section 16 of the Alaska Constitution or the due process clause in article I, section 7 of the Alaska Constitution.

1. Article I, section 16

Article I, section 16 of the Alaska Constitution provides in relevant part: “In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law.” “We have recognized that the termination of parental rights did not exist at common law.”8 The department refers us to the territorial child protection statute, which stated that “[pjroceedings under this Act shall be without jury.”9 Moreover, “[t]he Alaska Constitution preserves a jury trial only for those causes of action which are legal, and not equitable in nature.”10 Child protection cases have historically been treated as matters of equity in Alaska.11 The vast weight of authority from other jurisdictions also treats actions relating to child protection as equitable in nature.12 We therefore conclude *649that article I, section 16 of the Alaska Constitution does not provide a right to a jury trial in CINA proceedings.

Alyssa contends, however, that a CINA case is similar to a juvenile delinquency case. In RLR v. State, we held that “whenever a child in a delinquency proceeding is charged with acts which would be a crime, subject to incarceration if committed by an adult, the Alaska Constitution guarantees him [or her] the right to jury trial.”13 This right arises from article I, section 11 of the Alaska Constitution, which provides in part that “[i]n all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury.” Alyssa concedes that a CINA proceeding is not a criminal proceeding,14 but nonetheless argues that “[g]iven the fundamental nature of the right involved [to parent one’s child], the accused parent ought to have the same right to a jury trial, at least at the adjudicatory stage, as an accused juvenile.” We are unconvinced. A CINA proceeding is not a criminal proceeding and is not analogous to a criminal proceeding. Article I, section 11 did not entitle Alyssa to a jury trial at the adjudication stage of the CINA proceedings.

Alyssa also relies on our observation in RLR that “the right to jury trial is coextensive with the right to counsel”15 and argues that because there is a right to counsel in proceedings brought to terminate parental rights,16 there must also be a right to trial by jury. This argument is unconvincing. RLR there referred to the right to counsel in criminal prosecutions; that is a right preserved by article I, section 11. In comparison, the right to counsel in proceedings brought to terminate parental rights arises from the due process clause of the Alaska Constitution.17

2. Due process

Alyssa alternatively argues that the due process clause of the Alaska Constitution, article I, section 7,18 entitles her to a jury trial at the adjudication stage of the CINA proceedings. To determine compliance with procedural due process, Alaska courts balance:

(1) “the private interest affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the government’s interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.”[19]

Although “[t]he private interest of a parent whose parental rights may be terminated ... is of the highest magnitude,”20 this interest must be balanced against the child’s right “to an adequate home and education”21 and the state’s interest in the child’s welfare.22 Judges are well situated to make reliable findings in CINA eases, given their knowl*650edge of and familiarity with the controlling law and the prior proceedings of the case.23 As for the government’s interests, the department points out that jury trials in CINA proceedings could delay reunification or permanent placement, reduce judicial economy, increase the number of parents contesting adjudication instead of attempting to reach an agreement, and compromise the department’s ability to maximize its resources.

We conclude that the Alaska Constitution’s due process clause does not require the availability of jury trials in CINA proceedings.24

C. The Superior Court Did Not Err by Ordering Alyssa To Undergo a Psychological Evaluation Prior to Adjudication.

Alyssa argues that it was error to order her to undergo a psychological evaluation.25 Child in Need of Aid Rule 16(b) provides that, in the context of predisposition reports, “[t]he court may order mental and physical examinations of the ... child’s parents.” The superior court here ordered Alyssa to submit to a psychological evaluation prior to adjudication. Alyssa contends that this was improper because of the “significant difference” between adjudication and disposition.

It is true that the CINA rule pertaining to predisposition reports — CINA Rule 16(b)— specifically mentions physical and mental examinations and that the CINA rule addressing adjudication — CINA Rule 15 — does not. But CINA Rule 8(a) states that, with limited exceptions not relevant here, the Alaska Civil Rules govern discovery in CINA proceedings. Alaska Civil Rule 35(a) provides that “[w]hen the mental or physical condition ... of a party ... is in controversy, the court ... may order the party to submit to a physical or mental examination.” We decline to read the express authority granted in CINA Rule 16(b) concerning predisposition reports as implicitly limiting what the trial court is authorized by other rules to do at the adjudication stage in CINA proceedings.

Before a mental or physical examination can be ordered under Alaska Civil Rule 35(a), the movant must show that the other party’s mental or physical condition is “in controversy” and that there is “good cause” for an examination. To be “in controversy” means to be “ ‘directly involved in some material element of the cause of action or a defense.’ ”26 Good cause exists if “ ‘the mental state of petitioner, even though in controversy, cannot adequately be evidenced without the assistance of expert medical testimony.’ ”27 We have also noted that “[t]he ability of the movant to obtain the desired information by other means is also relevant.” 28

These requirements are especially important in the context of CINA proceedings. Civil Rule 35(a) should be invoked cautiously, only after the movant has demonstrated suf*651ficient justification for a mental or physical examination.29 This ensures that trial courts can guard against misuse of Civil Rule 35(a) as an unwarranted mechanism for discovering mental or physical issues absent good reason to believe that such issues actually exist.

The department points out that Alyssa’s mental state was in controversy for three reasons: (1) the department was trying to restore visitation that it had stopped “because of [Alyssa’s] threatening, abusive, hostile, and inappropriate behaviors”; (2) it needed a psychological evaluation in order to make reasonable efforts to reunify the family; and (3) the department petitioned for an adjudication under, among other provisions, AS 47.10.011(11) (on the theory Alyssa’s mental or emotional condition placed the child at risk).30 To demonstrate good cause for ordering the examination, the department submitted the affidavit of a state social worker. The affidavit described these circumstances: physicians had expressed concerns about Alyssa’s “coping strategies” and ability to care for her child; Alyssa had exhibited paranoid behavior on several occasions; Alyssa had admitted that she was receiving social security benefits for depression; an “intake assessment” completed by Alyssa had “indicated major depression and mild level anxiety”; Alyssa had been “threatening, abusive, and hostile” to staff; and Alyssa’s brother had stated that she was “delusional” and reported a family history of mental illness.

We conclude that Alyssa’s mental condition was in controversy and that there was sufficient evidence to establish good cause for a psychological evaluation. It was therefore not an abuse of discretion to order Alyssa to undergo such an evaluation.31


For the reasons stated above, we AFFIRM the superior court’s amended adjudication orders entered October 22 and October 29, 2003.

Alyssa B. v. State, Department of Health & Social Services
123 P.3d 646

Case Details

Alyssa B. v. State, Department of Health & Social Services
Decision Date
Aug 5, 2005

123 P.3d 646




Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!