P. N., In re

• Decision Date: 17 March 1975
• Docket Number: No. 2191,2191
• Citation: 533 P.2d 13
• Parties: In the Matter of P. N. et al.
• Court: Alaska Supreme Court

Page 13

533 P.2d 13

In the Matter of P. N. et al.

No. 2191.

Supreme Court of Alaska.

March 17, 1975.

As Amended May 14, 1975.

H. N., appellant, in pro per.

Norman C. Gorsuch, Atty. Gen., Juneau, Edith A. Glennon, Asst. Atty. Gen., Anchorage, for appellee.

OPINION

Before RABINOWITZ, C. J., CONNOR, BOOCHEVER and FITZGERALD, JJ., and DIMOND, J. Pro Tem.

DIMOND, Justice Pro Tem.

It is a sad and tragic thing when a father sexually molests his ten year old daughter. But that is what happened here. Appellant, the father of the children whose custody is the subject of this appeal, ¹ made a written statement to the police, and subsequently admitted in testimony in a children's proceeding before the superior court, that over a period of three years he had on repeated occasions engaged in explicit sexual acts-short only of actual intercourse-with his pre-pubescent daughter.

In light of the evidence before the superior court it is no wonder that the judge committed the child to the Department of Health and Social Services upon a finding that she was dependent due to the conduct of her father, and that appellant was not a fit and proper person to have custody of the child. ² To have left the child in appellant's custody would undoubtedly have only increased the grave psychological harm-perhaps incalculable-that she had already suffered. We can find no substantive fault with the court's determination in this respect.

There were also three other children involved with respect to whom the judge made the same disposition, committing them to the care of the Department of Health and Social Services. They were three boys, ages 4, 6 and 7. But there was no evidence that appellant had molested them as he had his daughter. The judge felt, however, that appellant was an unfit parent as to them as well, apparently because appellant kept lewd and lascivious pictures in magazines available in the home, had taken lewd and lascivious pictures of the boys, and had 'demonstrated' to them a mechanical vibrator referred to by the court as a dildo.

These findings are highly questionable. Appellant admitted that he showed the boys the vibrator, but that he only told them it was for a massage, without mentioning upon what parts of the body the instrument might be used. Appellant also admitted that he had copies of Playboy and 'other modern magazines' in the house, and that they were available to the children to look at. Such magazines and pictures, however, are not part of the record on appeal. Moreover, the 'lewd and lascivious' pictures appellant was supposed to have taken were neither described nor placed in evidence. In fact, near the close of appellant's testimony, the state's attorney admitted to the court: 'Well, we have nothing in regarding the boys, other than that it would be what the state would consider a bad atmosphere for any children in that sort of a setup.' The court's response to this was 'he's willing that the state take them into custody.' The record in fact reflects only that appellant was willing to allow the state to have custody of the children temporarily until a further determination could be made.

Despite our reservations about the evidentiary support for several of the trial court's findings, we hesitate to say the judge was clearly wrong in finding the boys dependent and that appellant was not a fit and proper person to have custody of them. It is true that there was no direct evidence that appellant had ever involved the boys in any of his sexual activities, or that the boys even had any knowledge of his sexual molestation of their sister. But there is support for the finding of dependency in that the appellant's treatment of the girl could be considered to have evidenced such a serious disregard of parental responsibilities and lack of social and moral values on appellant's part as to pose a substantial risk to the physical and emotional well-being of the boys as well as the girl.

This matter was instituted in the superior court by a petition filed by a case worker of the Department of Health and Social Services under the authority of Chapter 10, Title 47 of the Alaska Statutes which deals with the handling of children who are delinquent, in need of supervision, or dependent. The petition specifically stated, in the words of AS 47.10.010(a)(5), that appellant's children were dependent because they lacked 'proper parental care by reason of the faults, habit or neglect' of the childrens' parent. Once the petition was filed it was incumbent upon the court, under Children's Rule 10, ³ to order a hearing by issuance of a summons. This rule specifically provides that the summons be directed not only to the parents but also to the children. In addition, children's Rule 12(c) requires the presence of the children at the hearing. ⁴

These rules were not complied with. None of appellant's children were served with a summons; their presence at the hearing was not required; they were not in fact at the hearing.

Appellee contends the violation of this rule is harmless error. The argument appellee makes is that this was not a delinquency hearing where the child is an alleged wrongdoer who should therefore be entitled to the due process requirements of being given notice and the opportunity to be heard. Rather, appellee argues, this was a dependency hearing where only the parent's alleged wrongdoing was at issue, and since he was served with a summons and given the opportunity to be heard, that was all that was required. Serving the children and requiring their presence, appellee contends, would serve no useful purpose and would be of little benefit in the dependency hearing.

We disagree. At a dependency hearing the question of severing the parent-child relationship is involved. Obviously the child has a vital interest in such a proceeding and is an essential party whose presence cannot be dispensed with arbitrarily. ⁵ In R.L.R. v. State, ⁶ which involved a child alleged to be delinquent, we held that Children's Rule 10 required that the summons and a copy of the petition be served on the child in addition to the parents, and that a failure to make such service resulted in a lack of jurisdiction over the child. We extend that holding to a dependency hearing such as we have here. Since appellant's children were not given the required notice of the hearing the court had no jurisdiction over the children and therefore could not validly issue a judgment depriving appellant of their custody.

It is essential, however, to take into consideration the ages of the children involved in a dependency proceeding. Appellant's daughter was ten years of age, and the three boys were 4, 6 and 7. Service of the summons on children of such tender ages is bound to have little meaning. In these circumstances, upon the initiation of the proceeding whereupon the court obtains jurisdiction over the subject matter, an attorney may be appointed to act in the dual role of guardian ad litem and counsel for the children, and the summons should be served on him. ^6A

We appreciate the fact that under Children's Rules 14(a) and 11(a) the court has discretion in appointing counsel and a guardian ad litem. ⁷ But in circumstances such as we have here where the children are so immature, such appointment is essential in order that the needs and interests of the children be adequately represented. When a child is old enough to understand the nature of the proceedings and the judge's advice as to the right to counsel under Children's Rule 14(a), then service on the child himself may be sufficient and it may be unnecessary to appoint a guardian ad litem.

In addition to the question of jurisdiction, service on the children is desirable as a matter of policy. If an attorney as guardian ad litem and counsel had been appointed to represent the interest of the children in this case, it is more likely than not that the individual needs and interests of the children would be adequately represented at the hearing for purposes of insuring a constructive disposition of their custody when committed to the Department.

Unfortunately, we are unable to tell from the present state of the record what actually happened to the children-whether the Department placed them together or separately in a foster home or homes, whether one or more of them was placed in an institution, or whether some other permanent or temporary disposition was made of them by the Department. This state of affairs is due at least in part to the fact that in its order the court simply committed all four children to the Department of Health and Social Services for an indeterminate period not to exceed the date the children became 19 years of age. In so doing, the court failed to comply with Children's Rule 22(f) which specifically requires that it state the terms and conditions of such placement in addition to the duration. ⁸ We are of the opinion that this error alone would provide sufficient grounds for a remand.

The final point on this appeal has to do with the constitutional privilege against self-incrimination. Article 1, section 9 of the Alaska Constitution provides in part that:

No person shall be compelled in any criminal proceeding to be a witness against himself. ⁹

In recognition of this privilege, Children's Rule 12(e)(3) provides that:

The court shall explain the privilege against self-incrimination as it applies to the child, his parents, guardian, or custodian.

The court failed to follow this rule-it neither explained nor even made mention of this privilege as it applied to appellant's potential criminal liability for his sexual activities with his daughter. ¹⁰

That appellant's admissions constituted self-incrimination is evident. He admitted to acts which could subject him to prosecution for the crime of committing lewd and lascivious acts toward a child. ¹¹ Moreover, no waiver of the privilege may be inferred from the mere fact that appellant gave this incriminating...