BLYTHE P., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee.
Supreme Court No. S-18296
THE SUPREME COURT OF THE STATE OF ALASKA
February 10, 2023
Opinion No. 7641
Superior Court No. 4FA-21-00016 CN
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.
O P I N I O N
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Earl A. Peterson, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
Before: Winfree, Chief Justice, Maassen, Borghesan, and Henderson, Justices. [Carney, Justice, not participating.]
BORGHESAN, Justice.
I. INTRODUCTION
When the Office of Children’s Services (OCS) decides to transfer a child in its custody from one out-of-home placement to another, a party may seek judicial review of that decision. According to statute, the superior court shall deny the proposed transfer if the party “prove[s] by clear and convincing evidence that the transfer would be contrary to the best interests of the child.”1 OCS argues that in some circumstances the party challenging a proposed transfer must also show it is an abuse of discretion, such as when OCS seeks to transfer the child to a statutorily preferred placement2 or due to licensing concerns with the existing placement.3 Because there is no basis in statutory text or legislative history to supplant the standard of review chosen by the legislature with a standard more deferential to OCS, we decline to do so. And because we mistakenly applied abuse of discretion review in State, Department of Health & Social Services, Office of Children’s Services v. Zander B.,4 we overrule that decision to the extent it is inconsistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Facts
Blythe and Danny are the parents of three-year-old Gene.5 Blythe has two other children, Gene’s half siblings, with a man named Timothy. Timothy has custody of those other children; they live with him and his parents, Robert and Vivian.
In January 2021 OCS filed a non-emergency petition to adjudicate Gene a child in need of aid due to concerns about Blythe’s and Danny’s mental health and substance abuse. Later that month OCS removed Gene from his parents and placed him with Robert and Vivian. Robert and Vivian consider themselves Gene’s grandparents, though they are not related to him by blood or marriage. At the time they agreed to care for Gene they did not know what being a licensed foster parent entailed. But they expressed willingness to do what was necessary to ensure Gene’s safety.
Because Robert and Vivian were not legally related to Gene, they were required by law to obtain a foster care license.6 They applied for an emergency license, listing Timothy and his two children as household members. Timothy, who had been living with his two children at his parents’ house, had a criminal history that included barrier crimes. OCS’s licensing division informed Robert and Vivian that Timothy could not live in their home unless they received a variance.7 Timothy
OCS’s initial assessment caseworker reviewed the foster care rules and requirements with Robert and Vivian. The caseworker initially permitted Timothy to transport Gene to and from appointments and visitation to help support Robert and Vivian. But OCS licensing took the position that Timothy could not be around Gene without supervision due to his barrier crimes.
In May OCS licensing began investigating concerns that Timothy continued to have unsupervised contact with Gene. Later that month Timothy brought Gene to a visit, where the new caseworker observed that Gene seemed “more lethargic” and had a mark on his head that concerned her. Worried that Gene may have suffered a head injury, the caseworker contacted Vivian. Vivian said she was out of town, but that a babysitter, Robert, and Timothy were caring for Gene and that he had fallen off a swing. The caseworker then reminded Timothy that he could not transport Gene alone; in response, Timothy became “extremely upset.”
Beginning to suspect that Robert and Vivian were “not aligned” with OCS and were not being truthful, the caseworker and an OCS licensing specialist visited Robert and Vivian’s home unannounced. Nobody answered the front door. The OCS workers heard a door slam, which sounded like it came from a recreational vehicle in the back of the property. Then they saw Timothy coming toward them. Thinking Timothy looked angry, and feeling unsafe, both OCS workers left the property.
The caseworker and the licensing specialist called Vivian, who was out of town at the time. According to the OCS workers, Vivian stated that Timothy was living in the recreational vehicle and used the home only to cook, use the toilet, and visit the children when someone else was home. Vivian said she was not aware that Timothy was not allowed to live on the property. The licensing specialist explained to Vivian that Timothy’s living on the property was a violation of the foster care rules.8
OCS removed Gene from Vivian and Robert’s home. It transferred Gene to Kathryn, a cousin by marriage on his father’s side of the family. OCS licensing then closed Robert and Vivian’s foster care license.
B. Proceedings
In early June 2021 Blythe sought judicial review of Gene’s placement transfer under Child In Need Of Aid (CINA) Rule 19.1(b).9 Blythe argued that it was not in Gene’s best interests to be separated from his siblings and familiar caretakers. Blythe also challenged OCS’s characterization of Kathryn as an adult family member and therefore preferred placement10 because Kathryn is not biologically related to Gene.
Robert, representing himself, then filed a motion to challenge the placement transfer. A week later Robert, Vivian, and Timothy, represented by counsel, moved to join Blythe’s challenge to the placement transfer. They argued that Gene’s removal from their care was not in his best interests because he had a close bond with them. They also argued that due to Gene’s close bond with his half-siblings, transferring him violated OCS’s policy to keep siblings together.
The superior court held a multi-day placement review hearing over five months. In closing Blythe argued there was clear and convincing evidence that the transfer was contrary to Gene’s best interests and that OCS had not made reasonable efforts to
discretion because OCS had represented to them that a variance was unnecessary for Timothy to live on their land and transport Gene.
The superior court affirmed OCS’s decision. The court’s written order contained two separate conclusions.
First, the court determined that OCS did not abuse its discretion when it removed Gene from Vivian and Robert’s home. Applying the statutory placement preferences, the court determined that Kathryn was an adult family member and Robert and Vivian were family friends. Based on those classifications the court ruled that Kathryn had legal priority over Vivian and Robert and that Vivian and Robert failed to show clear and convincing evidence of good cause to deviate from this placement preference.11
Second, the court ruled that placement with Kathryn was “appropriate” and in Gene’s best interests. The court found that Gene was “doing well” in Kathryn’s home. It found that Kathryn allowed Gene to spend more time with his father and that Gene was having quality time with his half-siblings. The court also found that it would not be good to “bounce [Gene] from one placement to another.”
Blythe appeals the court’s decision to affirm the placement transfer.12
III. STANDARD OF REVIEW
This appeal primarily concerns the standard a court must apply when reviewing OCS’s proposal to transfer a child in its custody from one out-of-home placement to another. This is an issue of statutory interpretation and therefore a
question of law, which we review de novo, “adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy.”13 Whether a superior court’s factual findings satisfy the applicable requirements of the CINA statutes and rules is reviewed de novo.14
IV. DISCUSSION
A. Regardless Whether This Case Is Moot, We Address The Merits Under The Public Interest Exception To The Mootness Doctrine.
OCS argues this appeal is moot because Gene was placed in a trial home visit with his father while the appeal was pending. “A claim is moot if it is no longer a present, live controversy, and the party bringing the action would not be entitled to relief, even if it prevails.”15 OCS points out that even if we reversed the superior court’s order upholding the placement transfer, Blythe would not obtain the relief she seeks because Gene would remain with his father.16
We need not decide whether this claim is moot because, even if it were, we would decide it on public interest grounds.17 “[W]e use our discretion to determine whether the public interest dictates that immediate review of a moot issue is
appropriate.”18
The question presented here meets all three factors of the public interest exception. First, the proper standard of review for OCS’s decision to transfer a child from one placement to another is an issue that will arise frequently.
Second, this issue is likely to routinely evade review because foster care placements are inherently temporary and typically brief. A placement dispute is mooted when the child is reunified with a parent or transferred to yet another placement. And if parental rights are terminated, then a parent challenging a placement transfer will lose standing to pursue the challenge.21 Therefore most challenges to placement transfers will become moot before they can be resolved on appeal. If we strictly applied the mootness doctrine, the question of the proper standards for placement transfers would routinely evade review.
Third, we have previously held that clarifying the standards governing child placement is important to the public interest.22 The issue presented in this case is of similar importance. Therefore we address the merits of this issue.
B. The Failure To Consider Whether The Transfer Was Contrary To The Child’s Best Interests Was Error.
OCS’s decision to move Gene from Robert and Vivian’s care to Kathryn’s care spawned two distinct legal challenges. Blythe, a party to the CINA proceeding, moved to challenge the placement transfer as authorized by
Blythe, appealing the order that rejected her challenge to the placement transfer, argues that the superior court erred by failing to apply the standard described in
child.” She maintains that the court reviewed OCS’s decision only for abuse of discretion, which is the correct standard of review for a placement denial but not for a placement transfer.
In response OCS makes two main arguments. First, it argues that the superior court did apply the clear and convincing evidence standard. Second, it argues that the standard is not controlling in all situations. OCS argues that when it seeks to transfer a child to a placement with higher priority under
We begin by examining the superior court’s decision and conclude that it did not apply the clear and convincing evidence standard described in
review was originally erroneous, we overrule it to the extent inconsistent with this opinion.
1. The superior court did not expressly consider whether placement transfer would be contrary to Gene’s best interests.
OCS argues that the superior court applied the clear and convincing evidence standard. It points out that the court had to consider both Robert and Vivian’s challenge to placement denial (governed by
But the superior court did not consider Gene’s best interests in the way required by
Although OCS is correct that we will “normally assume that the superior court has applied the correct standard,”26 we cannot do so here. The court expressly applied the wrong standard when discussing the decision to move Gene and failed to
focus on the move’s effect on Gene when it did consider Gene’s best interests. Because the court did not correctly apply
2. When OCS decides to transfer a child to a higher-priority placement, the challenger need not show abuse of discretion.
OCS argues that
This argument requires us to construe
for the meaning the statutory language conveys to others.”29 “Interpretation of a statute begins with its text.”30 We give unambiguous statutory language its “ordinary and common meaning.”31 We will also “look to legislative history as a guide to construing a statute’s words.”32 “Under our sliding scale approach to statutory interpretation, ‘the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be’ to guide our understanding of the statute.”33 We interpret statutes “in context with other pertinent provisions rather than in isolation, and with a view toward reconciling conflict and producing a harmonious whole.”34
In In re B.L.J. we recognized that OCS has both the statutory authority and the expertise to make placement decisions for children in its custody.35 Because the legislature committed placement decisions to OCS’s discretion, we concluded that the proper standard of judicial review for OCS’s placement decisions was the abuse of discretion standard.36
The legislature then enacted what would become
prove by clear and convincing evidence that the transfer would be contrary to the best interests of the child for the court to deny the transfer.”37 The proposed legislation initially required that OCS obtain a court order to transfer a child in most instances.38 At a hearing of the House Judiciary Committee, the State, through an assistant attorney general (AAG),39 proposed an amendment with broader language: “Any party opposed to the proposed transfer may request a hearing and must prove an abuse of discretion by the department for the court to deny the transfer.”40 The AAG explained that this amendment
Legislators took issue with the abuse of discretion standard. Representative Ethan Berkowitz proposed replacing the abuse of discretion standard with a standard requiring “the party opposed [to] prove that it is not in the best interests of the child to approve the transfer,” by either a preponderance of the evidence or clear and convincing evidence.42 The AAG responded that the State’s amendment, which
reflected existing law, already required any move to be in the child’s best interests.43 Representative Berkowitz countered:
But that’s the interest as determined by the department’s discretion, not the interest as validated by the objective court. And . . . that’s an important distinction. For an outside party to challenge the department based on they’ve abused their discretion, that’s nearly impossible to prove. But for them to assert that it’s not in the best interests of the child — which is what the litigation should be about — is a threshold we can reach either with clear and convincing, or beyond a reasonable doubt, with preponderance. And that’s where the focus ought to be.[44]
Several other participants at the hearing were skeptical of applying an abuse of discretion standard to placement transfer decisions and expressed a preference for a less deferential standard. For example, Chairman Joe Green observed that the abuse of discretion standard “seem[ed] a little one-sided” and preferred an “approach that would not [set such] an extremely high standard” because he did not know how a court could possibly deem a transfer an abuse of discretion.45 Representative Brian Porter stated that “instead of [having to] prove that there was an abuse of discretion by the department,” a party challenging a transfer should have to “prov[e] the move was not in the best interests of the child.”46 And the deputy commissioner of the Department of Health and Social Services agreed, saying that the standard “ought to be the child’s best interests. . . . [T]hat’s a much better construction, it seems, from a practical
standpoint. It focuses on the purpose, which is to focus on the interests of the child.”47 The hearing concluded with the committee adopting the standard now contained in
OCS maintains that both this standard and the abuse of discretion standard should apply when a party challenges transfer to a higher priority placement. In effect OCS’s argument would render the clear and convincing evidence standard — adopted precisely because it is more objective and less deferential to OCS — ineffective in those cases. Abuse of discretion review, as described in In re B.L.J., examines OCS’s placement decision “to determine if it is in the best interests of the minor.”49 Clear and convincing evidence review under
on the statutory text, it would seem that the legislature intended this standard to govern all placement transfers.
The text of
Where
The legislative policy behind
OCS argues that the legislative history shows the legislature intended the clear and convincing evidence standard of
that the committee’s proposal would allow a party objecting to a transfer to argue that the child should be transferred elsewhere.54 Representative Dyson rejected the AAG’s interpretation. He explained that the committee’s proposal would allow a party only to argue against the transfer that OCS had proposed — necessarily a “department approved situation” — not to propose an entirely new placement.55 Other representatives agreed with Representative Dyson.56 Representative Berkowitz clarified that “[i]t’s not as if the other interested party can come in and say, ‘Wait a second, I don’t want it to go between department-approved, I want it to come to me’ or ‘I want it to go to my aunt,’ ” because the proposed standard would apply only when the “department already has established that the child is in . . . a department-approved setting, and now the department is getting ready to move it to another setting.”57 In this discussion there is no indication that the legislature intended to limit
Having considered statutory text, legislative history, and purpose, we conclude that a party challenging a proposed transfer to a higher priority placement
must show only clear and convincing evidence that the proposed transfer is contrary to the child’s best interests. The challenger need not also show an abuse of discretion.
3. When OCS proposes to transfer a child due to disapproval of the existing placement, the challenger need not show abuse of discretion.
OCS makes a similar argument with regard to placement transfers based on foster care licensing issues. Citing its statutory authority to license foster care homes,58 OCS argues that
Revisiting the statutory text,
the existing placement.60 Therefore this snippet of legislative history is not enough to convince us that
That said, we doubt the legislature intended
Yet in many instances the conduct or conditions that prompt OCS’s concerns about continued placement with a foster family do not automatically disqualify continued placement. Although such conduct is grounds for denying or revoking a foster care license, OCS has authority to allow continued placement by
granting a variance.63 This brings us back to the question at hand. If OCS decides to transfer a child due to this kind of excusable deficiency by the foster family, must a party challenging the transfer show that OCS’s decision is both an abuse of discretion and clearly contrary to the child’s best interests?
OCS does not point to any statutory text that mandates abuse of discretion review in this scenario. There is no direct judicial review of OCS’s foster care licensing decisions.64 Licensing decisions are reviewable only indirectly, when a court reviews a placement denial under
OCS argues that abuse of discretion review is needed to prevent courts forcing continued placement of a child with a foster family that OCS disapproves of. The argument is unpersuasive because abuse of discretion review does not preclude that
possibility. Any standard of judicial review entails the possibility of OCS being forced to place a child with a person of whom it does not approve.66 The contrary to best interests review may be less deferential to OCS, but that
The difference between the standards, though significant, is unlikely to result in many proposed placement transfers being denied. Foster care licensing is not a mere technical requirement. It is “closely tied to OCS’s statutory responsibilities as well as the safety and security of the children in its care.”67 Evidence that the existing placement cannot meet licensing requirements will often reflect on the placement’s ability to provide a safe and healthy home for the foster child. Licensing failures by the current placement will therefore be highly relevant to determining whether the transfer is clearly contrary to the child’s best interests. Yet the clear purpose behind
4. We overrule the portion of Zander B. that applied an abuse of discretion standard to placement transfers.
OCS relies on our decision in Zander B., which applied an abuse of discretion standard to a transfer challenge. In that case the child’s foster parents sought
to challenge OCS’s decision to remove the child from their care and transfer him to his maternal grandmother.68 The CINA statutes do not expressly authorize foster parents to challenge placement denials or placement transfers. The foster parents sought to intervene so they could invoke
For the reasons described above, applying abuse of discretion review to a placement transfer challenge was wrong. We therefore must decide whether to overrule this aspect of Zander B. We will overrule a prior decision only when clearly convinced that (1) “the rule was originally erroneous or is no longer sound because of changed conditions” and (2) “more good than harm would result from a departure from precedent.”71
A decision is originally erroneous if the rule announced proves to be “unworkable in practice” or if the other party “would clearly have prevailed” if the issue
in question had been “fully considered.”72 In Zander B. the parties’ briefing on the applicable standards of review was not entirely clear. OCS’s brief mentioned both abuse of discretion and clear and convincing evidence review but did not explain the relationship between the two standards. The foster family’s brief appeared to accept the abuse of discretion standard. Our decision expressly applied abuse of discretion review without discussing
Deciding whether more good than harm would result from overruling our precedent requires balancing “the benefits of adopting a new rule against the benefits of stare decisis.”74 The scale tips clearly in favor of correcting our mistake. First, doing so respects the separation of powers by giving effect to legislative intent. Second, Zander B. is only two years old and has been relied on very little.75 It seems unlikely that OCS or particular individuals have made decisions or structured their affairs in reliance on the particular standard used to review placement transfers. Correcting this error will cause little disruption. Therefore we overrule Zander B. to the extent inconsistent with this opinion.
C. The Error In Applying The Placement Preference Statute Was Harmless.
“Alaska law has long demonstrated a preference that children who are in OCS’s custody be placed with family members.”76 When a child is taken into OCS’s custody, OCS must place the child, “in the absence of clear and convincing evidence of good cause to the contrary, . . . with, in the following order of preference, (A) an adult family member; (B) a family friend who meets the foster care licensing requirements established by the department; (C) a licensed foster home . . . ; [or] (D) an institution for children.”77 The superior court determined that Kathryn was an adult family member and that Vivian and Robert were family friends. The superior court then ruled that Kathryn had priority over Robert and Vivian by law and that there had been no showing of good cause to deviate from the statutory placement preferences.
Blythe argues that the superior court erred by classifying Kathryn as an adult family member because Kathryn does not meet the statutory definition.78 Describing Kathryn as Gene’s step-cousin, Blythe argues that Kathryn was merely a family friend and therefore was not preferred over Robert and Vivian, who were also family friends.
Kathryn is not Gene’s adult family member for purposes of statutory placement preference. The CINA statutes define an “adult family member” in cases not involving an Indian child as “a person who is 18 years of age or older and who is (A) related to the child as the child’s grandparent, aunt, uncle or sibling; [or] (B) the
child’s sibling’s legal guardian or parent.”79 Kathryn is a cousin by marriage and does not meet the definition of adult family member.
Kathryn nevertheless qualifies for some placement preference as a family friend. She testified that she had known Danny his entire life, that Danny and Blythe had introduced Gene to her when he was an infant, and that she had “intermittently” seen him at family functions. Although her relationship to Gene did not grant her adult family member status, it did render her exempt from foster care licensing requirements as his relative.80
Robert and Vivian, on the other hand, are no longer entitled to placement preference as family friends because they failed to comply with the requirements of their emergency foster care license.82 OCS granted them a license on the condition that Timothy, who had committed multiple barrier crimes, would not live on their property. The superior court found that Robert and Vivian violated this condition.
The superior court’s classification errors are harmless because they offset each other. Kathryn, a family friend who meets foster care licensing requirements by virtue of being exempt from them, is preferred to Robert and Vivian, family friends who do not meet foster care licensing requirements. The superior court’s ultimate
conclusion was correct: OCS did not have to show clear and convincing evidence of good cause to justify placing Gene with Kathryn instead of Robert and Vivian.
D. The Superior Court Did Not Fail To Apply The Statutory Presumption That Maintaining A Child’s Relationship With Siblings Is In the Child’s Best Interests.
The legislature has directed courts to “recognize a presumption that maintenance of a sibling relationship . . . is in a child’s best interest[s].”83 This presumption focuses on the sibling relationships; it is not a presumption that siblings be placed in the same household.84 Blythe argues that the superior court’s order failed to acknowledge Gene’s strong relationship with his siblings or the statutory presumption that maintaining a child’s relationship with siblings is in the child’s best interests.
The superior court adequately considered the relationship and applied the presumption. The court found credible testimony that Gene was “very close with his half-siblings,” that his bond with them “was probably stronger” than his bond with Kathryn, and that Kathryn was aware that Gene “misses his half-siblings.” The court also found that although “there was some trouble setting up visits” because Kathryn and Vivian had a “text altercation,” Kathryn “is very supportive of the sibling relationships” and facilitates weekly in-person visits and additional phone visits with them. When the court analyzed Gene’s placement with Kathryn, the court further noted that Gene was “having quality time” with his half-siblings. Placement with Kathryn therefore supports the maintenance of Gene’s sibling relationships, and we see no error in the superior court’s treatment of this issue.
V. CONCLUSION
We REVERSE the superior court’s decision.