M.G., Jy.G., and J.G., Appellants, v. State Of Alaska, Department Of Health And Social Services, Division of Family And Youth Services

The Alaska Division of Family and Youth Services received a report of
harm that prompted it to seek an interview with a seven-year-old child, Judy Gorrell.1
Neither of the child's parents was a target of the investigation, the division did not allege
that the child was a child in need of aid, and no emergency circumstances existed. After
the child's mother refused to allow an interview of her daughter outside her presence, the
division obtained an ex parte judicial order allowing it to conduct the interview without
parental consent. The interview disclosed no evidence of abuse, and the Gorrells moved
for an order compelling the state to surrender the original interview tapes and all copies,
arguing that the ex parte order was unconstitutional. The superior court initially granted
the motion but rescinded its order on reconsideration. On appeal, the Gorrells renew
their constitutional claim. Because we conclude the sole remedy the Gorrells seek in this
case - suppression of the purportedly illegally taped interview - would be
inappropriate in any event, we affirm the superior court's ruling without deciding the
constitutional claim.

Alison O'Donnell, an Anchorage caseworker with the Alaska Department
of Health and Social Services, Division of Family and Youth Services (the division),
received a report of harm indicating that, about a year before the report was filed,
thirteen-year-old Joseph Gorrell had sexually touched his younger cousin while his
family was on a summer visit to her home in Wyoming. The report indicated that
Joseph's parents knew about the incident but nonetheless allowed Joseph to babysit for
his seven-year-old sister, Judy. O'Donnell called the Gorrell children's mother, Jane Gorrell, and told Jane that she wanted to interview Judy about the incident without Jane
present.

O'Donnell scheduled an interview. But Jane and her husband, Michael,
contacted an attorney, who evidently advised them not to consent to an interview unless
a parent could be present. Jane failed to appear with Judy for the scheduled interview
and informed O'Donnell that the Gorrells would decline to allow an interview with Judy
outside their presence. The parties dispute whether Jane also told O'Donnell that the
Gorrells had legal counsel; the Gorrells claim that they did.

The division then filed an ex parte motion in superior court, requesting a
writ of assistance to compel the Gorrells to produce Judy for an interview outside Jane
Gorrell's presence; the motion included a conclusory affidavit by O'Donnell, who stated
that the division had "received a [report of harm] . . . alleging Judy may be a victim of
sexual abuse or at risk of sexual abuse by a sib ling within the household." The report
of harm itself was not presented or described to the court. O'Donnell also averred that
the Gorrells had missed the original appointment and that Jane had "stated she is
unwilling to have the [division] interview her child at this time." The motion and
supporting affidavit described no other supporting facts. Nor did they allege an
emergency or any need to proceed ex parte.

A superior court standing master granted the ex parte motion without a
hearing and issued an ex parte order directing Jane to allow an interview of Judy "out of
the presence of her mother"; the order made no mention of excluding Michael, Judy's
father. The state would later claim that this omission was inadvertent.

The division scheduled Judy's interview at Alaska Child Abuse Response
and Evaluation Services (Alaska CARES), a facility in Anchorage associated with
Providence Hospital that specializes in children's interviews; the division retains the facility on a contractual basis to conduct interviews when it receives reports of harm.
After learning of the ex parte order, the Gorrells' attorney faxed a letter to O'Donnell,
stating that Michael and the Gorrells' investigator would observe the interview.
O'Donnell evidently did not receive this letter until after the interview. Michael took
Judy to the interview at Alaska CARES, believing that the ex parte order only excluded
Judy's mother and hoping to be able to observe because he had not been excluded by the
order.

When Michael appeared with Judy, he asked to witness the interview, either
in the interview room itself or through a two-way mirror in an adjacent room; he claims
that the division insisted upon interviewing Judy outside his presence and told him that
the court order authorized it to do so. Michael then signed a consent form and filled out
an interview questionnaire providing background information about Judy. Alaska
CARES staff members proceeded to interview Judy outside Michael's presence,
recording the interview on videotape. Alaska CARES retained the tape and did not give
Michael a copy or permit him to view it.

Following the interview, the Gorrells filed a motion in superior court
seeking to quash the ex parte order and demanding that the original and all copies of the
videotape be turned over to them. They argued that the division had no legal authority
to conduct the interview without exigent circumstances or without first filing a petition
for custody alleging that Judy was a child in need of aid. They also argued that the ex
parte order violated their due process rights to prior notice and a hearing.

The state did not oppose the Gorrells' motion to quash, responding that the
interview had disclosed no evidence of abuse, that no further proceedings were pending,
and that the matter had been closed. But the state did contest the Gorrells' demand for production of all copies of the videotape, alleging that the demand was unwarranted and
unreasonable.

After hearing argument on the Gorrells' motion, Superior Court Judge Rene
Gonzalez ruled that the division had authority to investigate reports of harm and to
conduct interviews without first filing child-in-need-of-aid petitions. But the judge
nonetheless found that the division's interview with Judy was problematic:

[J]ust for clarity of the court ruling, the court finds that under
AS 47.17.025, which requires [the division] to investigate
reports of child abuse within 72 hours, and under 47.10.020,
which requires [the division] to make a preliminary inquiry
of child abuse and report the information to the court, the
court finds that a liberal interpretation of those two statutes
grants [the division] the authority to conduct an interview of
[a] minor child before filing a petition in court of a child in
need of aid. But, on the other hand, under the facts and
circumstance[s] of this case the parents had a right to assert
their rights to the child in court prior to the interview, for the
protection of the child. They were denied that right.
Therefore, the interview was conducted relying on an
affidavit that would not have supported even a semblance of
reasonable suspicion that the child was, in fact, in danger of
harm from the parents in the household in Anchorage.

Based on this finding, and because the state acknowledged that its investigation had
ended and the case had been closed, the court ordered the division to deliver all copies
of the videotapes to the court to be destroyed or given to the Gorrells.

The division moved to reconsider, asserting, in relevant part, that the
Anchorage Police Department still had an investigation open relating to the original
report of harm that might create a need for the videotape. The motion for reconsideration
supported this assertion with an affidavit from Anchorage Police Detective John H.
Vandervalk. Relying on Detective Vandervalk's affidavit, the superior court granted reconsideration and vacated its earlier order requiring return of the videotape,
commenting that "the investigation of sexual abuse is an open ongoing investigation and
[] the video tape interview done at Alaska [CARES] ‘is evidence' in [his] investigation."
The Gorrells appeal.

III. DISCUSSION
A. Standard of Review
We use our independent judgment when we consider matters of law.2 We
may affirm on grounds other than those used by the superior court.

B. Procedural Issues
The Gorrells maintain that the division had no statutory authority to
interview Judy outside their presence, that the disputed ex parte writ of assistance was
constitutionally impermissible, and, in effect, that all tapes of Judy's interview are
unlawfully seized fruits of the poisonous tree. To rectify the harm and discourage future
misconduct in similar proceedings, the Gorrells ask us to rule that the division must
deliver to them the originals and all copies of the unlawfully obtained tapes.

In response, the division initially raises issues of waiver and mootness. The
division points out that Michael had ample time to challenge the ex parte order before
bringing Judy in for her interview and was represented by counsel at the time, yet took
no action to quash the order. The division insists that by failing to file a timely motion
to quash, Michael waived the right to challenge the ex parte order's constitutionality.
Moreover, the division argues, Michael agreed to allow the interview outside his
presence by signing the Alaska CARES consent form, even though he believed that the ex parte order did not expressly exclude him; he also voluntarily answered the interview
questionnaire, which asked for background information. According to the division the
constitutionality of the order is now a moot point because Michael's consent to the
interview waived his right to raise the issue and precluded the Gorrells from establishing
that the interview was a fruit of the allegedly illegal order.

The Gorrells dispute the division's version of events. They insist that
Michael's consent was involuntary because he relied on the division's representations
that the ex parte order authorized an interview outside his presence despite its omission
of any express reference to Michael. They also assert that Michael was afraid that
violating the order might place him and his wife in contempt. Additionally, they argue,
their failure to move to quash the order before the interview does not amount to a waiver
or imply consent, since, before arriving for the interview, they reasonably thought that
the order's failure to exclude Michael meant that he would be allowed to attend.

Because the Gorrells' demand for the tapes - the only remedy they claim
in this case - is predicated on the two-prong theory that the ex parte order was illegally
issued and that the tapes are a fruit of the unlawful order, the state is correct in asserting
that any illegality in issuing the ex parte order would be immaterial if the interview was
conducted with Michael's voluntary and knowing consent. The voluntariness of
Michael's consent presents a question of fact;4 so too does the reasonableness of
Michael's pre-interview failure to move to quash the ex parte order.5 The superior court
heard no evidence on these issues, simply ruling as a matter of law that the ex parte order had been invalidly issued. Yet the parties' divergent views of the facts make it obvious
that these issues are hotly disputed. Thus, a remand would be needed to resolve these
issues.But given the nature of the relief sought by the Gorrells, we find no need
to resolve these issues. For even assuming that they preserved their constitutional claim
and that their constitutional claim had legal merit, the Gorrells would have no right to the
relief that they seek.

As previously indicated, the Gorrells insisted below and continue to insist
here that, as a remedy for the division's alleged violation of their rights, all evidence of
Judy's interview must be suppressed and all originals and copies of the interview tapes
must be given to them. The only authority they cite for this proposition is Alaska
Criminal Rule 37(c):

A person aggrieved by an unlawful search and seizure
may move the court in the judicial district in which the
property was seized or the court in which the property may
be used for the return of the property and to suppress for use
as evidence anything so obtained on the ground that the
property was illegally seized.

By its own express terms, Rule 37(c) states that its provisions attach only
to evidence obtained "by an unlawful search and seizure." Yet on appeal the Gorrells
have principally argued that the disputed order violated their and Judy's rights to
procedural due process6 because the superior court issued the order ex parte and without
probable cause to believe that they had harmed or neglected Judy. The Gorrells do
additionally argue that the interview was a prohibited search and seizure. But they raised
this point for the first time below in response to the state's motion for reconsideration.

Thus, the superior court justifiably failed to address the issue. And in their opening brief
on appeal the Gorrells have devoted only a single, conclusory paragraph to the point.
Given these circumstances, we conclude that the issue is not properly preserved and
decline to consider it here.

But even if the Gorrells had properly preserved their search and seizure
claim, Criminal Rule 37(c) would not entitle them to their requested relief. Alaska's
criminal rules only govern in criminal proceedings; the Gorrells' case arises from a civil
investigation conducted in a child protection proceeding. The rule does not purport to
apply to such proceedings. And in prior cases, we have recognized that suppression of
illegally seized evidence is seldom if ever an appropriate sanction in civil cases.7 Here,
the Gorrells have failed to cite any convincing authority that would justify suppression
of evidence in this non-criminal context. Because the Gorrells sought no other remedy,
we hold that the trial court correctly refused their demand for an order requiring the state
to surrender the original and all copies of the interview tapes. Our holding makes it
unnecessary to address their constitutional claims.

* * *

Click the case caption above for the full text of the Court's Opinion.