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L.O. v. State, in the Matter of E.A.O. (8/30/91), 816 P 2d 1352
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of E.A.O. )
A Minor Under the Age of )
Eighteen (18) Years. )
________________________________)
)
L.O. )
)
Appellant, ) File No. S-3467
)
v. ) 3AN 88 386 CP
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 3742 - August 30, 1991]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Victor D. Carlson, Judge.
Appearances: Blair McCune, Assistant Public
Defender, John B. Salemi, Public Defender,
Anchorage, for Appellant, L.O. Philip J.
McCarthy, Jr., Deputy Public Advocate, Anchor
age, Guardian Ad Litem for E.A.O. Dianne
Olsen, Assistant Attorney General, Anchorage,
Douglas B. Baily, Attorney General, Juneau,
for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
In this appeal from the superior court, the mother and
guardian ad litem of E.A.O. seek to clarify the responsibility
of the Department of Health and Social Services for the
medical costs of children in the department's legal custody
who are placed in their parents' home. The superior court
held that in such a case the department has no responsibility.
We reverse.
I
E.A.O. was born prematurely on June 11, 1987, at Anchorage's
Humana Hospital and soon transferred to Providence Hospital's
Neonatal Intensive Care Unit. On August 12, 1988, the
Department of Health and Social Services petitioned to have
E.A.O. adjudicated a child in need of aid (CINA) under AS
47.10.010(a)(2)(A) based on the following facts:
[E.A.O.] was born prematurely (30 weeks
gestation) due to alcohol abuse by her
mother. [E.A.O.] has remained hospitalized
at Providence Hospital since birth with one
trip to Seattle for heart surgery. She must
have 24 hour oxygen, BEM and heart monitor
and be fed through a gastrometer. [E.A.O.]
has stabilized enough to be discharged to a
home setting. [E.A.O.'s mother] has
completed in-patient treatment in Seattle and
continues to receive aftercare through
Charter North. She regularly attends
Alcoholics Anonymous meetings. Her husband
works out-of-town and they have three other
children. The parents are requesting
placement in a medical foster home until
[E.A.O.'s father] returns in November. (A
medical foster home has been recruited by
this worker and is available.) Due to [the
father's] absence and [the mother's]
treatment needs, the parents are unable to
provide the needed care for [E.A.O.] at this
time.
At an emergency custody hearing on August 25, 1988, the parents
stipulated to the facts alleged in the petition, and the
superior court gave temporary legal custody to the department
pursuant to AS 47.10.142.1 The order authorized the
department to place E.A.O. in a medical foster home.
The department apparently returned E.A.O. to her parents'
home in October 1988. In an order effective December 7, 1988,
the superior court adjudicated E.A.O. a child in need of aid,
granting continued "temporary custody"to the department and
authorizing the department "to place the minor in a home
deemed suitable, which it indicates at the present time to be
in the home of the minor's parents." On January 20, 1989, the
child's guardian ad litem filed a motion to "clarify" the
department's responsibility, as E.A.O.'s legal custodian, to
provide the cost of her medical care.
Before any ruling on this motion, a disposition hearing was
held on March 6, 1989. The parents and guardian ad litem
argued that the department should continue to have legal
custody of E.A.O., emphasizing that the family had no means of
paying for the extensive and continuing medical care required
by E.A.O.2 The department argued that the conditions
justifying intervention--the mother's alcoholism and the
father's work-related absence--no longer existed and that
legal custody should be returned to the parents, with
supervisory monitoring by the department. The department
specifically rejected any assertion that it took action
because of E.A.O.'s medical needs.
Subsequent to this disposition hearing, the Children's
Master concluded that he could
not agree with the Department that the
situation has improved to the extent that
this court can approve a return of legal
custody to the parents. I find that the
Department must continue to play a pinnacle
role in the coordination and delivery of
services in this case, and that therefore,
the child should be committed to the custody
of the Department pursuant to AS
47.10.080(c)(1).
The master emphasized that the "fact that [E.A.O.] is a special
needs child is a material factor in this case." He made no
ruling on the guardian's motion concerning the department's
responsibility for medical costs.
The department objected to the master's report on the ground
that the family's limited abilities to meet E.A.O.'s medical
needs "do not relate to any specific child protection risk
caused by the parents. Under the circumstances, the
department need not have legal custody of the child." The
superior court agreed. It released E.A.O. to the custody of
her parents subject to the supervision of the department.
Concerning the guardian ad litem's motion for clarification of
responsibility for medical costs, the court ruled:
The Department of Health and Social
Services is not responsible for the costs of
medical care of children in their legal
custody who continue to reside with their
parents.
. . . The Department of Health and
Social Services is responsible for paying the
costs of medical care of children in foster
care, subject to the existence of other
insurance and subject to reimbursement by the
child's parents.
E.A.O.'s mother3 appeals solely on the question of whether the
department was responsible for the costs of E.A.O.'s medical
care when the state had legal custody of the child, but she
actually resided with her parents.4
II
This narrow question requires us to interpret the provisions
of Alaska's CINA statute.5 Concerning legal custody and
various rights and responsibilities, the law provides:
(a) When a child is committed
under AS 47.10.080(b)(1) or (c)(1) to the
department or released under AS 47.10.080
(b)(2) or (3) or (c)(2) to the child's
parents, guardian, or other suitable person,
a relationship of legal custody exists. This
relationship imposes on the department and
its authorized agents or the parents,
guardian, or other suitable person the
responsibility of physical care and control
of the child, the determination of where and
with whom the child shall live, the right and
duty to protect, train and discipline the
child, and the duty of providing the child
with food, shelter, education, and medical
care. These obligations are subject to any
residual parental rights and responsibilities
and rights and responsibilities of a guardian
if one has been appointed. When parental
rights have been terminated, or there are no
living parents and no guardian has been
appointed, the responsibilities of legal
custody include those in (b) and (c) of this
section. The department or person having
legal custody of the child may delegate any
of the responsibilities under this section,
except authority to consent to marriage,
adoption, and military enlistment may not be
delegated. For purposes of this chapter a
person in charge of a placement setting is an
agent of the department.
. . . .
(c) When there has been transfer
of legal custody or appointment of a guardian
and parental rights have not been terminated
by court decree, the parents shall have
residual rights and responsibilities. These
residual rights and responsibilities of the
parent include, but are not limited to, the
right and responsibility of reasonable
visitation, consent to adoption, consent to
marriage, consent to military enlistment,
consent to major medical treatment except in
cases of emergency or cases falling under AS
09.65.100, and the responsibility for
support, except if by court order any
residual right and responsibility has been
delegated to a guardian under (b) of this
section.
AS 47.10.084. Although section .084 on its face only applies to
cases where children are committed to the department after a
disposition hearing, AS 47.10.080, the parties agree that its
principles apply here, where the commitment was the result of
a temporary placement hearing, AS 47.10.142(e). The parties
also agree that when the department has legal custody over a
child placed in a foster home, the department is responsible
for the cost of the child's medical care. The parties
disagree, however, over the scope of the department's
responsibilities when it has legal custody, but chooses to
place a child in the parents' home.
The core of the department's argument is that "AS 47.10.084
read in conjunction with other applicable statutes does not
require the department to pay for the costs of medical care
for E.A.O. during the time she resided with her parents,
simply because the department had legal custody of her for
child protection purposes."6 Appellee's Brief at 9. It
argues that the statutory scheme taken as a whole provides a
rational basis for distinguishing the legal custody of
children in the parental home from legal custody of children
removed from the parental home.
The department points first to AS 47.10.084(c), which
provides for residual parental responsibilities. The
department would interpret that to mean that parental
responsibility eliminates any departmental responsibility in
the absence of a specific provision to the contrary. The
department notes that other sections of the statute authorize
it to pay maintenance costs and to apply for medicaid benefits
when a child is placed in a foster home, AS 47.10.230(b), and
require it to pay for the medical expenses of handicapped
foster children, AS 47.10.230(d). The inclusion of these
specific terms, the department argues, presumptively excludes
terms which are not mentioned. Thus, it is not authorized to
pay costs of a child left in the parental home and it is not
required to pay for the care of handicapped children left in
the home.
The department buttresses this view of the law through
reference to the statutory statement of "[p]urpose and policy
relating to children:"
The purpose of this title as it relates
to children is to secure for each child the
care and guidance, preferably in the child's
own home, that will serve the moral,
emotional, mental, and physical welfare of
the child and the best interests of the
community; to preserve and strengthen the
child's family ties unless efforts to
preserve and strengthen the ties are likely
to result in physical or emotional damage to
the child, removing the child from the
custody of the parents only as a last resort
when the child's welfare or safety or the
protection of the public cannot be adequately
safeguarded without removal; and, when the
child is removed from the family, to secure
for the child adequate custody and care and
adequate planning for permanent placement of
the child.
AS 47.05.060 (emphasis added). The department asserts that the
emphasized text accords with its view that the AS 47.10.084(a)
discussion of the responsibilities of legal custody
"primarily"applies to situations where the child is removed
from the parental home.
The department refers to an analysis by the Legislative
Affairs Agency of AS 47.10.084 before its enactment, which ex
plained the rationale of the legal custody provision:
By stating the major rights and
responsibilities of those with legal custody
or appointed guardians it is hoped these
persons can act without feeling unduly
restrained, because of fear of not having the
right and power to act in certain instances.
By stating the residual rights and
responsibilities of the parents it is
intended to assert the parent[s'] inherent
rights and responsibilities and thus help
maintain the parent and child relationship.
Children's Code Revision Task Force, Legislative Affairs Agency,
Memorandum to Rep. Terry Gardiner (April 13, 1977). The
department translates this passage as meaning "the intent is
to inform those with the physical care of the child that they
may provide day-to-day care to the child, but not to limit the
'parent's inherent rights and responsibilities.'"
The department finally makes a vigorous policy argument
against holding it responsible for the medical costs of
children in its legal custody who are still living at home.7
The result of such a holding, the department fears, could be
"a chilling effect on the department's willingness to take
legal custody of children,"because it is not budgeted to pay
for the medical care of children left at home. It points out
that the medical costs of children placed in foster homes are
generally covered by Medicaid, which often--as in E.A.O.'s
case--is not available for children left at home. The goals
of legal custody have only been to attain the power to protect
the child and provide treatment services. The department
fears that these goals would be sacrificed if legal custody
were held to include a responsibility the department is not
capable of accepting.
We find the department's arguments unpersuasive. We think
it clear that the department is responsible for the medical
costs of children in its custody, whether the children are
placed at home or in a foster home. Alaska Statute
47.10.084(a) is very explicit in saying that the "relationship
[of legal custody] imposes on the department . . . the duty of
providing the child with . . . medical care." As this court
has noted, "[i]f the meaning of a statute is plain[,] it
should be enforced as it reads without judicial modification
or construction." Horowitz v. Alaska Bar Ass'n, 609 P.2d 39,
41 (Alaska 1980).8
Nothing in other statutory provisions necessarily
contradicts the plain and unambiguous language of AS
47.10.084(a). Any apparent contradictions should be
harmonized, if possible, rather than read to make one
provision negate another. In re Estate of Hutchinson, 577
P.2d 1074, 1075 (Alaska 1978). The language concerning
residual parental responsibilities, for example, should be
read as clarifying that the department's responsibility for
medical care does not mean that parents are relieved of
responsibility. Rather, the law provides a basis for the
department, having fulfilled its duty toward the child, to
turn to the parents for reimbursement. AS 47.10.084(c); AS
47.10.120. The department's reading that residual parental
responsibilities eliminate the department's responsibility,
besides being strained, would unnecessarily contradict the
plain language of section .084(a).9
Alaska Statute 47.10.230, which the department claims only
allows it to pay maintenance costs of foster children, can
also be harmonized with the explicit language of section
.084(a). The only specific limitation concerning foster
children appears in paragraph (d): "In addition to money paid
for the maintenance of foster children under (b) of this
section, the department (1) shall pay the costs of caring for
physically or mentally handicapped foster children . . . ."
AS 47.10.230(d). The paragraph goes on to specify various
expenses related to caring for physically and mentally
handicapped foster children--such as "respite care"--that the
department will pay.
This statute means what it says, but it does not imply that
the state has no responsibility to pay for the medical care of
its wards who are not foster children. Such an implication
would mean that the state could not pay medical care for
children under its jurisdiction who are institutionalized.
Instead, as E.A.O.'s mother suggests, it seems far more likely
that the statute was enacted to fulfill the legal commitments
the state is required to make in order to receive federal
funds under Title IV-E of the Social Security Act.
Section .084(a) plainly and specifically assigns the
department the duty of providing medical care to children in
its legal custody. Elsewhere, in the context of a discussion
of placement of children in foster care, the law specifies
that the department may pay the medical costs of foster
children. AS 47.10.230(d). There is no more reason to view
this as a prohibition of paying medical costs of children
placed at home, than there would be to view it as a
prohibition of paying medical costs of children placed in
institutions.
The purpose sections of the statute and of the Legislative
Affairs Agency memorandum are both vague and they do not
provide any convincing reason to ignore the plain language of
the statute. Alex, 646 P.2d at 208 n.4. Section .060 is only
obliquely supportive of the department's position. The
memorandum is not at all inconsistent with the position of the
mother.
The department's policy argument--that holding the
department responsible for medical costs of children in its
custody who are placed at home would result in less protection
for children because of budgetary constraints--is beyond the
purview of this court. Whether the department is adequately
funded to carry out its statutory responsibilities, or whether
those responsibilities should be changed in response to
budgetary realities, is a question for the legislature to
answer. The law as it stands today clearly assigns to the
department the duty to pay the medical costs of all children
in its legal custody, subject to reimbursement from the
parents.
The decision of the superior court is REVERSED and this case
REMANDED for entry of appropriate judgment.
_______________________________
1. AS 47.10.142 provides:
(e) If the court finds that
probable cause exists it shall order the
minor committed to the department for
temporary placement, or order the minor
returned to the custody of the minor's
parents or guardian subject to the
department's supervision of the minor's care
and treatment. . . .
(f) When a minor is committed to
the department for temporary placement under
(e) of this section, the court order shall
specify the terms, conditions, and duration
of placement.
2.E.A.O. was hospitalized for fluid in her lungs at the
time of this hearing. She had been hospitalized numerous
times during the period that the department had legal custody
of her. The record reveals numerous, persistent medical
problems requiring constant care.
3.The mother and guardian ad litem filed a joint appel
lant's brief. The guardian ad litem did not participate in
the reply brief due to a change in attorneys. We have
generally used the term "the mother"both to refer to the main
appellant brief and to the reply brief.
4.The period of time during which the state had legal
custody of E.A.O. but placed her in her parents' home was
approximately nine months.
5.Because resolution of this issue involves statutory
interpretation, this court will apply its independent
judgment. Waller v. Richardson, 757 P.2d 1036, 1039 n.4
(Alaska 1988).
As an initial matter, we note that E.A.O. is no longer in
the legal custody of the state, nor is there any indication
that she is likely to be again in the future. The case may
therefore be technically moot. Doe v. State, 487 P.2d 47, 53
(Alaska 1971). We have long held, however, that the mootness
doctrine in Alaska "is a matter of judicial policy, not
constitutional law." R.L.R. v. State, 487 P.2d 27, 45 (Alaska
1971). We find the circumstances of this case to fall under
the exception to the mootness doctrine for cases "where the
matter is one of grave public concern and is recurrent but is
capable of evading review." Doe, 487 P.2d at 53. We will
thus consider the merits of the case.
6.The department initially frames the issue in terms of
whether parents are relieved of their responsibility to pay
for the medical care of children who live with them merely
because the children are in the legal custody of the state.
The answer is clearly that the parents are not relieved of
ultimate responsibility, and the mother concedes as much; but
the salient issue on the facts of this case is whether the
department is also responsible, by virtue of having legal
custody, for medical costs.
7.The first portion of the policy argument is entitled
"The Alaskan child protection system is not an entitlement
program of last resort." It attributes without specific
citations a number of arguments to the appellants that they
simply do not make. For example, the department alleges that
the appellants "would have the court believe that E.A.O. was
taken into custody because of [her extraordinary] medical
needs." Appellee's Brief at 20. What the mother and guardian
in fact say is that the "question is not so much why or under
what circumstances the state obtained custody over E.A.O., but
what its responsibilities were once it obtained custody."
Appellant's Brief at 19.
8.We have rejected a "mechanical"plain meaning rule,
recognizing that ambiguity is a matter of degree. State v.
Alex, 646 P.2d 203, 208 n.4 (Alaska 1982). The appropriate
approach involves a "sliding scale,"such that the plainer the
language, the more convincing must be evidence contrary to
that plain meaning. Id.; State v. Haines, 627 P.2d 1047, 1049
n.6 (Alaska 1981). The statutory language of section .084(a)
seems quite plain.
9.The term "subject to"in section .084(a) best connotes
the idea that the state's responsibility is subordinate to
that of the parent, not that it is eliminated because the
parents are also responsible. See Black's Law Dictionary 1425
(6th ed. 1990) ("Subject to" defined as "subordinate,
subservient, inferior").
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