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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jacob v. State, Dept of Health & Social Services, Office of Children's Services (03/07/2008) sp-6235
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVID and JOYCE JACOB, | ) |
| ) Supreme Court No. S- 11663 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-04957 CI |
| ) | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, and | ) |
| MARCIE KENNAI, Deputy | ) |
| Commissioner, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6235 - March 7, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John E. Reese, Judge.
Appearances: James J. Davis, Jr., Alaska
Legal Services Corporation, Anchorage, for
Appellants. Megan R. Webb, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
MATTHEWS, Justice, dissenting.
I. INTRODUCTION
David and Joyce Jacob are the grandparents of three
children who were taken into custody by the Office of Childrens
Services (OCS) in 2000. Despite dozens of timely attempts to
communicate with OCS seeking information about their
grandchildren and requesting that the children be placed in their
home rather than remain in foster care, and despite the Jacobs
status as joint custodians of their grandchildren under an order
of the superior court in Washington, the Jacobs were not given
notice of and did not have an opportunity to be heard in any of
the Child in Need of Aid (CINA) hearings which occurred during
the first three and one-half years that their grandchildren were
in OCSs custody. In 2004 the Jacobs retained counsel and brought
a separate suit seeking declaratory judgment and injunctive
relief regarding their rights to receive notice and be heard in
their grandchildrens CINA proceedings. The superior court
dismissed the suit, instructing the Jacobs to instead intervene
in the CINA proceedings. They have since done so.
The Jacobs appeal the superior court dismissal, arguing
that they have not received all the relief to which they were
entitled and seeking broader injunctive relief to correct an
allegedly systemic failure by OCS to provide grandparents with
statutorily required notice. OCS concedes that the Jacobs may be
entitled to declaratory relief but argues that most of the Jacobs
case is now moot because the Jacobs have received all the relief
to which they are entitled and because the Jacobs lack standing
to seek injunctive relief on the broader claims.
We accept the states concession on the issue of
declaratory relief. We also conclude that there is a present,
live controversy in which the Jacobs have a continuing stake and
that the Jacobs will benefit from a declaratory judgment that OCS
violated their statutory rights. Accordingly, we accept the
states concession on the issue of declaratory relief and reverse
and remand for entry of declaratory judgment in the Jacobs favor.
We hold that all other issues are moot due to the Jacobs
subsequent intervention in their grandchildrens CINA proceedings.
II. FACTS AND PROCEEDINGS
A. Facts1
Minors A.K., D.L., and E.H. are the grandchildren of
David and Joyce Jacob. The mother of the three children
struggled with drug dependency and as a result the Jacobs often
assumed care of their grandchildren. In 1997 a Washington state
court granted the Jacobs joint custody of the children with their
mother.2 In 1999 the Jacobs agreed that the children could move
to Alaska with their mother because she had been sober for quite
some time. But in 2000 the mother relapsed, and in October 2000
the children were taken into custody by the Office of Childrens
Services (OCS).3
When the Jacobs learned from the childrens mother in
December 2000 that OCS had custody of the children, they
immediately sent a letter to OCS stating that they were the
childrens grandparents, had joint custody, and wanted OCS to
place the children in their care. OCS did not respond to the
letter and the children remained in foster care. Between
December 2000 and March 2004 the Jacobs made dozens of attempts
to communicate with OCS, including leaving messages for the
caseworker and the caseworkers supervisor, Tim Fox. On one
occasion, Fox allegedly told the Jacobs that they were too old to
care for the children.
Over the next three and one-half years OCS never sent
the Jacobs notice of any court hearings regarding their
grandchildrens CINA proceedings, including those that occurred
after the September 2001 effective date of amendments to the CINA
statutes requiring grandparent notice.4 During that time period
the Jacobs never filed a motion to formally intervene in their
grandchildrens CINA cases and never filed a petition requesting
that the children be placed in their care.
B. Proceedings
In March 2004 the Jacobs filed a complaint for
declaratory and injunctive relief in superior court. They sought
judgment declaring that OCS violated Alaska law by failing to
place their grandchildren in their care and by failing to provide
them with notice of their grandchildrens CINA proceedings and
permanency hearings. The Jacobs also sought injunctive relief
compelling OCS to provide them and all other grandparents
similarly situated written notice of all hearings in CINA
proceedings involving their grandchildren, as well as an
opportunity to be heard in their grandchildrens permanency
hearings. The Jacobs also requested that the court place their
grandchildren with them until and unless OCS could show by clear
and convincing evidence that such placement would result in
physical or mental injury to the children. The Jacobs requested
court costs and reserved the right to later seek attorneys fees.
The state responded with a motion to dismiss under
Alaska Rule of Civil Procedure 12(b), alleging lack of
jurisdiction, improper venue, lack of standing, and failure to
state a claim upon which relief may be granted. The Jacobs
opposed the motion to dismiss and cross-filed a motion for
partial summary judgment.
Superior Court Judge John E. Reese granted OCSs motion
to dismiss and declared the Jacobs summary judgment motion moot.
Judge Reese found that [a]lthough the departments failure to give
them notice is a serious oversight, the Jacobs due process rights
have not been violated, since . . . they may request placement in
the CINA case.
The Jacobs have subsequently intervened in their
grandchildrens CINA cases and pursued this appeal. OCS argues
that the appeal is moot because of the intervention in the CINA
cases. The Jacobs contend that they are seeking relief that
cannot be granted within the CINA cases, and that to the extent
their complaint is moot, we should apply the public interest
exception to the mootness doctrine.
During oral argument the parties altered their
positions somewhat, with OCS indicating that it had no objection
to our vacating the order of dismissal and remanding for entrance
of an order of declaratory judgment in favor of the Jacobs. The
Jacobs also stated that they sought no relief broader than that
necessary to satisfy their own claims.
III. STANDARD OF REVIEW
We review the superior courts grant of a motion to
dismiss pursuant to Rule 12(b)(6) de novo, construing the
dismissed complaint liberally, and assuming the truth of the
facts it alleges.5 Such dismissals are viewed with disfavor and
should only be granted on the rare occasion where it appears
beyond doubt that the plaintiff can prove no set of facts in
support of the claims that would entitle the plaintiff to relief. 6
We review the superior courts dismissal of a declaratory judgment
action under the abuse of discretion standard .7 The trial
courts decision to grant or deny injunctive relief is likewise
reviewed for an abuse of discretion.8
We apply our independent judgment to questions of law,
adopting the rule of law most persuasive in light of precedent,
reason, and policy.9 Mootness presents a question of law to which
we apply our independent judgment.10 Standing and ripeness are
also questions of law, calling for independent judgment review.11
IV. DISCUSSION
A. The Jacobs Are Entitled to Declaratory Relief.
The Jacobs sought a judicial declaration that OCS
violated their statutory rights by failing to place their
grandchildren in their care, by failing to give them notice of
all the court hearings in the CINA cases, and by failing to give
them notice and an opportunity to be heard in the permanency
hearings. In his order Judge Reese began by noting that the CINA
statutes (1) indicate a clear preference for placing children
with relatives rather than in foster care and (2) include
grandparents in the list of parties who must receive advance
notice of CINA proceedings. Next, Judge Reese noted OCSs
concession that the Jacobs did not receive notice of hearings
held after the September 2001 effective date of the amendments
requiring such notice. Finally, Judge Reese concluded that the
departments failure to give them notice is a serious oversight.
The state argues that with these statements the trial
court essentially granted the declaratory relief. We disagree.
The superior court dismissed the Jacobs claims and thus did not
create an enforceable order for the Jacobs to use in the CINA
proceedings. Moreover, the superior courts statements were
heavily qualified by its subsequent statement that the Jacobs due
process rights have not been violated, since . . . they may
request placement in the CINA case.
Because the Jacobs never sought a declaration
specifically regarding their due process rights, we decline to
comment on this issue extensively. We do note, however, that
notice of proceedings and a meaningful right to be heard are
essential to due process,12 and that there are situations in which
the right to intervene in the late stages of a CINA case will be
insufficient to cure the prejudice of the initial due process
violation.13 Timely notice and opportunity to be heard are
especially important in situations involving the placement of
children.
Here the Jacobs were not given notice of any of the
initial CINA hearings involving their grandchildren. While the
crucial laws regarding grandparent notice did not take effect
before the initial decisions concerning their grandchildren were
made, we note that from an equitable standpoint the Jacobs did
not receive an opportunity to be heard in this case until it was
already too late. The Jacobs were not consulted for early
placement despite their status as legal custodians and concerned
relatives of the children. By the time they navigated their way
through the web of bureaucracy, retained counsel, and entered a
courtroom, many years had passed an amount of time even more
significant for children and their grandchildren had formed
bonds with their foster parents such that an OCS home study
concluded that it was not in the childrens best interest to move
into the Jacobs home. We do not have sufficient facts to
determine whether the lapse of time was prejudicial to the
Jacobs, nor to determine whether the children ought to have been
placed with them initially, but we will consider whether the
superior court erred when it dismissed the Jacobs claim for a
declaratory judgment that recognizes that OCS violated their
statutory rights.
OCS argued in its brief that we should dismiss the
declaratory judgment portions of the Jacobs appeal on mootness
grounds. But at oral argument the state conceded, in accordance
with its briefed position that declaratory judgment had already
been granted, that it had no objection to an order vacating the
dismissal and remanding for an entry of declaratory judgment for
the Jacobs. Given the disturbing factual history of this case,
the states concession appears to be well-taken.
A claim is moot if it has lost its character as a
present, live controversy.14 Where the party bringing the action
would not be entitled to relief even if successful, there is no
case or controversy for us to resolve.15 Issues are moot where
the appellant has already received relief.16 Mootness can also
occur when a party no longer has a personal stake in the
controversy and has, in essence, been divested of standing. 17
The Jacobs claim for a declaratory judgment is not moot because
the Jacobs retain an ongoing stake in a present, live
controversy. A declaration of the Jacobs rights will continue to
benefit them in their dealings with OCS. We are troubled by OCSs
history of refusal to provide the Jacobs with notice of agency
decisions or actions relating to their grandchildren, and
resistance to including the Jacobs in their grandchildrens CINA
proceedings. We also recognize that, given this history, the
Jacobs current status as interveners in their grandchildrens
remaining CINA cases does not preclude the possibility that OCS
will again fail to provide the Jacobs with notice or an
opportunity to be heard. For example, although the Jacobs eldest
grandchildren are currently under the guardianship of their
foster parents, OCS could again violate the Jacobs rights if the
agency fails to notify the Jacobs of any disruption in the
guardianship or fails to consider the Jacobs first in priority
for a new placement. In addition, the remaining CINA proceeding
for the Jacobs youngest grandchild is still under way. Although
the Jacobs currently enjoy intervener status in those
proceedings, OCS could again violate the Jacobs rights if the
agency fails to provide them with notice and an opportunity to
participate in any additional proceedings that become necessary
in the future. A declaratory judgment from the superior court
that acknowledges the failure of OCS to meet its statutory duty
to the Jacobs and that specifically recognizes the Jacobs rights
to receive notice of future OCS hearings relating to their
grandchildren will materially benefit the Jacobs.
As noted above,18 the state conceded at oral argument
that it had no objection to an order vacating the dismissal and
remanding for an entry of declaratory judgment for the Jacobs.
We do so now, because the Jacobs are entitled to judicial
declaration that they have a right to notice of any CINA
proceedings involving their grandchildren. The Jacobs are also
entitled to a declaration that their right to notice was violated
by OCS when they did not receive notice after the September 2001
effective date of the amendments requiring such notice.
B. The Remaining Injunctive Relief Requests Are Moot.
OCS argues that we should dismiss the Jacobs claims for
injunctive relief as moot. As stated above, issues are moot when
the appellant has already received relief.19 OCS contends that
the Jacobs claims for injunctive relief are moot because they
have already received or declined to pursue every item of relief
that they requested in the trial court.
1. Injunctive relief on their own behalf
The Jacobs initial complaint sought three forms of
injunctive relief on their own behalf: (1) notice of all hearings
in CINA proceedings involving their grandchildren; (2) notice and
an opportunity to be heard in all permanency hearings involving
their grandchildren; and (3) immediate placement of their
grandchildren unless OCS could show by clear and convincing
evidence that such placement would cause physical or mental
injury to the children.20
Following the superior courts dismissal of their
claims, the Jacobs successfully intervened in their
grandchildrens CINA cases. The Jacobs and OCS eventually agreed
to a visitation plan that includes having the children spend two
to three weeks with the Jacobs every summer. OCS agreed to
notify the Jacobs within forty-eight hours if the guardianship
placement is disrupted and also agreed to consider the Jacobs
first for placement, if needed. The guardianships of D.L. and
A.K. were approved by the superior court in January 2006 and OCS
subsequently released them from custody. Only E.H., the
youngest, remains in OCS custody. In her pending case, the
Jacobs have intervener status.
Thus the Jacobs have in the cases of all three
grandchildren received the first two categories of injunctive
relief that they sought: notice of CINA proceedings and an
opportunity to be heard at permanency hearings. Because the
Jacobs have intervener status in E.H.s case, and because our
decision today regarding declaratory relief will leave the Jacobs
with an enforceable statement of their rights in any future CINA
proceedings, the Jacobs present no live controversy here.
With respect to the third form of injunctive relief,
placement of the children, this matter has been adjudicated and
settled by the superior court handling the CINA cases of the
older two children and is currently under review for E.H., the
youngest child. As previously noted, the Jacobs decided not to
request full custody of the children out of concern for their
best interests. With respect to E.H., the superior court
handling her CINA case has jurisdiction and the Jacobs can
exercise their right to be heard within that proceeding.
Finally, the Jacobs effectively concede that the superior court
handling the CINA case, and not the superior court in which this
separate suit was filed, retains proper jurisdiction over E.H.s
status and custody.21
The Jacobs argue that the fact that one of the CINA
cases is still open makes it hard to conceive of how this lawsuit
is moot. But the crux of their suit below was the denial of
their opportunity to be heard, which has since been resolved to
the extent that it could be at this late stage through the
Jacobs actual participation in various hearings and intervener
status. The Jacobs additional request for custody of E.H., if it
is even still desired by the Jacobs, is appropriately evaluated
through the remaining CINA proceedings. Because we agree with
the state that the Jacobs have either been granted or declined to
pursue all the injunctive relief that they requested on their own
behalf, we hold that the injunctive relief requests they made on
their own behalf are moot.
2. Injunctive relief on behalf of similarly situated
grandparents
In their briefing the Jacobs argued that they have not
received the relief they requested on behalf of similarly
situated grandparents. Namely, the court did not issue an
injunction compelling OCS to provide similarly situated
grandparents with an opportunity to be heard in all relevant CINA
proceedings. In oral argument, the Jacobs appeared to retreat
from this position to some degree, stating that they were seeking
no more relief than necessary for full relief in their own case.
Because the Jacobs requested relief has adequately been
addressed, and because the Jacobs did not file a class action
suit, we decline to address the Jacobs request for injunctive
relief on behalf of similarly situated grandparents.
C. Heretofore Unstated Damages Claims
The Jacobs note that had the case been allowed to
proceed past the pleading stage they would have possibly amended
their complaint to seek damages. They did not include any
damages claim in their complaint to the superior court. The
Jacobs argue that because Civil Rule 26 disclosures and discovery
have not occurred in this litigation they have [not] yet had a
fair chance to state any tort claim against the OCS. Because the
Jacobs provide no legal support for the notion that claims that
they have not yet stated could be grounds for reversing dismissal
of the case, we decline to address these hypothetical claims or
their potential merits.
V. CONCLUSION
We VACATE the order of dismissal with respect to the
declaratory judgment and REMAND for entry of declaratory judgment
consistent with this opinion. We AFFIRM on mootness grounds the
remainder of the decision.
MATTHEWS, Justice, dissenting.
I agree with the court that the Office of Childrens
Services violated the Jacobs rights by failing to provide them
notice of their grandchildrens CINA proceedings and permanency
hearings. I also agree with the courts assessment that this case
presents a disturbing set of facts. However, for most of the
reasons the court provides in its discussion of injunctive
relief,1 I believe that the Jacobs appeal seeking declaratory
relief is moot.
The CINA proceedings and permanency hearings for the
grandchildren are all underway or have already been resolved.
The Jacobs successfully intervened in all three cases. As the
court recognizes, the crux of the Jacobs suit was the denial of
their opportunity to be heard. This denial has been remedied to
the extent that it can be and a declaration of rights that are
already guaranteed by statute2 will do little to aid the Jacobs
in the future. The courts speculation that OCS might, if the
opportunity arose, again disregard the Jacobs rights should not
alter the mootness analysis.3 The plain fact is that there is no
longer a present controversy in this case. For this reason I
would dismiss this appeal as moot.
_______________________________
1 The following facts are taken largely from the Jacobs
complaint. Because we are reviewing a complaint that was
dismissed, we treat the factual allegations of the complaint as
if they were true. Lowell v. Hayes, 117 P.3d 745, 750 (Alaska
2005).
2 Despite the importance of the Jacobs status as
custodians of the children, the Jacobs specifically seek redress
as grandparents and not as individuals with legal custody.
3 For ease of reference, we refer to both OCS and its
predecessor agency, the Department of Family and Youth Services,
as OCS.
4 AS 47.10.030(d), effective September 23, 2001, provides
in relevant part:
. . . [T]he department shall give advance
written notice of all court hearings in a
childs case to a grandparent of the child if
(1) the grandparent has contacted the
department, provided evidence acceptable to
the department of being the childs
grandparent, requested notice about the
hearings in the childs case, and provided the
department with a current mailing address; or
(2) the department is aware that the child
has a grandparent and the grandparents
mailing address is on file with the
department.
A simultaneous amendment to the general notice
provision, AS 47.10.030(b), added qualifying grandparents to the
list of individuals who shall be given notice regarding a childs
proceedings. Ch. 43, 1, 2, SLA 2001.
5 Lowell, 117 P.3d at 750.
6 Id. (quoting Angnabooguk v. State, Dept of Natural
Res., 26 P.3d 447, 451 (Alaska 2001)).
7 See id.
8 Betz v. Chena Hot Springs Group, 657 P.2d 831, 837
(Alaska 1982).
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 Peter A. v. State, Dept of Health and Soc. Servs.,
Office of Childrens Servs., 146 P.3d 991, 994 (Alaska 2006).
11 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).
12 Evans v. Native Village of Selawik IRA Council, 65 P.3d
58, 60 (Alaska 2003).
13 Cf. Matanuska Maid, Inc. v. State, 620 P.2d 182, 193
(Alaska 1980) (holding that where contestant actually appears and
presents his claim no due process violation has occurred assuming
the inadequacy of notice in the present case did not hinder
preparation or presentation of arguments) (emphasis added).
14 Peter A., 146 P.3d at 994.
15 Id. (quotation omitted).
16 Fairbanks Fire Fighters Ass'n, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).
17 Ulmer v. Alaska Restaurant & Beverage Assn, 33 P.3d
773, 776 (Alaska 2001) (quoting 15 Martin H. Redish, Moores
Federal Practice 101.90 (3d ed.1998)).
18 See supra at 8-9.
19 Fairbanks Fire Fighters Ass'n, 48 P.3d at 1168.
20 As discussed in more detail below, the Jacobs also
requested injunctive relief on behalf of other grandparents
similarly situated. In its briefing, OCS addressed the Jacobs
personal injunctive relief requests separately from their
requested relief on behalf of others. Because the legal theories
for each are different, we do likewise, focusing first on whether
the Jacobs request for injunctive relief on their own behalf is
moot.
21 The Jacobs effectively concede that they were not
entitled to the third item of injunctive relief that they
requested, the placement of their grandchildren. They state,
[w]hile the superior court in this matter could not have entered
orders for the Jacobs as to the placement of their grandchildren,
such matters being before the CINA court, it plainly had
jurisdiction to consider and rule on the Jacobs other claims . .
. . Thus, the Jacobs appear to waive any appeal of the failure to
grant placement of the children.
1 Slip Op. at 10-13.
2 AS 47.10.030(b).
3 The fact that this case is no longer ripe can be
demonstrated by assuming that a litigant petitioned for
declaratory relief based solely on such speculation. A court
would deny relief for failure to establish a sufficient
likelihood of future injury.
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