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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, DHSS, OCS v. Zander B & Kelly B. (Foster Parents) (10/30/2020) sp-7489
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.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) Supreme Court No. S-17399
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, ) Superior Court No. 3PA-17-00077 CN
)
Appellant,
) O P I N I O N
)
v.
) No. 7489 - October 30, 2020
)
ZANDER B. and KELLY B., )
)
Appellees. )
)
rom the Superior Court of the State of Alaska, Third
Appeal f
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Mary Ann Lundquist, Senior Assistant
Attorney General, Fairbanks, and Kevin G. Clarkson,
Attorney General, Juneau, for Appellant. J.E. Wiederholt,
Aglietti, Offret & Woofter, LLC, Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.
I. INTRODUCTION
The Office of Children's Services (OCS) took emergency custody of a
three-year-old child and placed him with non-relative foster parents. The child had lived
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with the foster parents for over a year when OCS informed them of its intent to place the
child with his grandmother. The superior court allowed the foster parents to intervene
in the child in need of aid (CINA) proceedings to contest OCS's placement decision.
After a placement review hearing, the court stayed the placement decision, concluding
that OCS abused its discretion in deciding to place the child with his grandmother.
OCS appeals, arguing that the superior court erred both by permitting the
foster parents' intervention and by finding that OCSabused its discretionin itsplacement
decision. We hold that the court did not abuse its discretion by permitting intervention
under the circumstances of this case. We also hold that the court's factual findings were
not clearly erroneous and that the court did not err when, based on those findings, it
decided that OCS abused its discretion in its placement decision. We therefore affirm
the superior court's order staying the placement decision.
II. FACTS AND PROCEEDINGS
A. Background
In August 2017 OCS took emergency custody of three-year-old Douglas, 1
acting on allegations that his mother was using drugs and living with Douglas in a truck.
OCS placed Douglas temporarily in foster care with non-relative foster parents, Zander
and Kelly B.
Shortly thereafter, Douglas's paternal grandmother, Cassidy, asked that
OCS place him with her in Texas. Douglas's father was denied placement in January
2018, and - because of the statutory placement preference for adult family
members2 - OCS began considering Cassidy as an option. By June the permanency
1 Pseudonyms have been used throughout this opinion to protect the parties'
identities.
2 See AS 47.14.100(e)(3)(A); AS 47.10.080(s).
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plan for Douglas's future was adoption. OCS received a positive home study for Cassidy
fromTexas pursuant to the Interstate Compact on the Placement of Children (ICPC), and
it decided to transition Douglas into Cassidy's care.
OCS planned a slow transition, with several visits between Douglas and his
grandmother before the child was relocated permanently. Cassidy visited Douglas in
Alaska three times between March and November 2018. On November 19 OCS
informed Douglas's foster parents of its intent to place Douglas with Cassidy. The
change in placement was set for December 11; OCS intended that Cassidy would make
one final visit to Alaska and take Douglas back to Texas with her at that time.
In early December the foster parents filed a motion to intervene in the
CINA proceedings to contest OCS's placement decision. In their motion the foster
parents asserted that they "wish[ed] to adopt [Douglas] as their own," though they had
not yet filed an adoption petition. The superior court stayed the relocation in part,
permitting Douglas to go to Texas with his grandmother for a "temporary visit" pending
the placement review hearing. At the same time the court granted the foster parents'
motion to intervene pursuant to Alaska Civil Rule 24(b), noting that their motion for
intervention focused on "the same questions of law and fact as the underlying CINA
proceeding, what is in the child's best interest."
B. The Placement Review Hearing
The superior court presided over a three-day placement review hearing
beginning in late December 2018 and continuing into January 2019. The foster parents,
OCS, and Douglas's biological father called witnesses. Douglas's guardian ad litem
(GAL) also participated, supporting OCS's proposed placement with Cassidy.
1. Testimony of the foster parents' witnesses
Douglas's preschool teacher, an early childhood special education teacher,
testified that she had worked with Douglas in the spring of 2018 and became his teacher
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in the fall. She testified that Douglas was "an extremely high-needs child." When he
first started school in the spring he had daily outbursts and could be "extremely
aggressive and explosive in his behavior." He directed his tantrums at "adults [who]
were trying to . . . alter his routine or make him do something he didn't want to do." Of
all the children the teacher had encountered in her 16 years of experience, she placed
Douglas "in the one percentile of children with the most extreme difficulties and
challenging behaviors." She testified that Douglas was a "force" and could be very
physical when trying to have his way: "[Y]ou have to really hold your ground and be
consistent and make sure he lives up to your expectations because it's a slippery slope
if you start giving him control . . . ." She testified that she never had a student with such
extreme trauma, anxiety, and aggression; because of his many challenges, Douglas "was
supported by an adult one-on-one" throughout each day.
The teacher testified that Douglas's behavior "dramatically changed" for
the worse immediately after visits with Cassidy; he regressed and went into "full panic
mode" whenever his foster parents left. She testified that she observed Cassidy with
Douglas and did not think Cassidy was able to care for him. She believed that Cassidy
did not seem to appreciate the extent of Douglas's emotional challenges and lacked
useful strategies to calm him down. She also worried about Cassidy's physical ability
to care for Douglas, especially as he got older.
The teacher testified that she was "shocked" when she learned that OCS
intended to place Douglas with Cassidy, and she emailed a letter to his OCS caseworker
and GAL describing Douglas's dramatic regression after Cassidy's visits. She testified
that she received no reply from the OCS caseworker. After Cassidy's second visit, the
teacher notified the OCS caseworker that she thought the decision to place Douglas with
Cassidy was "[d]evastating." She testified that she reached out to OCS three times to
express concern; after the second and third emails, she received responses thanking her
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and stating that the emails would be put in Douglas's file, but she had no other contact
with OCS.
The teacher also testified that the team of professionals who worked with
Douglas at school thought placing the child with his grandmother "would be the worst
thing they could do for [him]." She predicted that if Douglas returned to her class after
spending time with Cassidy without therapy, they would "be starting back at ground zero
with extreme behavior 95% of the time."
The superior court also heard the testimony of Douglas's pediatrician. She
testified that when she first met Douglas in August 2017 he probably had reactive
attachment disorder - an inability to properly form attachments or relationships with
others that may appear in children who change homes and caregivers. She testified that
Douglas's environmental experiences and past trauma likely contributed to his
developmental delays. The pediatrician also testified, however, that Douglas made
"remarkable" improvement despite his challenges. When she saw him in June 2018,
about ten months after their first encounter, Douglas's development was closer to age-
appropriate; he "had obviously gained a couple years of developmental ability in that
time." She attributed this improvement to the hard work of all his caregivers and his
foster parents. The pediatrician also testified that it would be in Douglas's best interests
"to have a good, stable environment . . . like he had, or that he could continue to have
with [his foster parents]." She testified that no one from OCS had contacted her about
Douglas's placement.
The physical therapist at Douglas's elementary school testified that she had
started seeing him in March 2018 and worked with him twice a week that spring and
again in the fall. When she first met him, his gross motor skills were delayed and he had
some "very significant" behavioral issues; when he was upset he would bite, kick, throw
things, run away, scream, and scratch himself and others. She testified that she
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"developed a behavioral modification program" with the involvement of the foster
parents and other caregivers, and that Douglas's improvement over the summer was
among the most significant she had seen; when he returned to school in the fall, he was
more cooperative and "significantly easier to redirect." She attributed his improvement
to "being in a safe, structured, healthy environment." She testified that Douglas met his
physical therapy goals and was discharged from her program in November 2018.
Thephysicaltherapistalsotestifiedthatstructureand consistency werevery
important for Douglas and that he benefitted from constant, hands-on attention. She
testified that Douglas could continue to progress if he received the care and services he
needed while living with his grandmother. She testified that OCS never contacted her
about Douglas's placement.
Two occupational therapists who had worked with Douglas also testified.
In their opinion, he was negatively affected by visits with Cassidy, with increased
anxiety and behavioral issues. One therapist testified that her last session with Douglas
on November 28, 2018, was "difficult"; he appeared "very anxious" and "emotionally
dysregulated," which she attributed "probably [to] all the stress and the pending move."
The other therapist testified that Cassidy attended one therapy session with Douglas in
September 2018, where the therapist observed some concerning behavior. She testified
that Cassidy did not seem attentive to the therapist's advice; for example, after Cassidy
was told how important it was to encourage Douglas to do things for himself like
climbing onto swings, she picked him up and set him on a swing. The therapist testified
that Douglas was supposed to spend the day with Cassidy following the therapy session,
but he was afraid, tried to run back to his foster parents, and tried to hit his grandmother
once they were in the car. The therapist testified that she never talked to anyone from
OCS, but she did send her notes to the agency and someone responded that the notes
would be forwarded to Douglas's caseworker. The notes contained the therapist's
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opinion that Douglas had formed a strong bond with his foster parents and that moving
him would hinder his progress and perpetuate his trauma and stress.
The foster father testified that when he tried to explain Douglas's behavior
to Cassidy and how best to respond, "[s]he didn't seem to acknowledge or understand."
He testified that Cassidy ignored advice he and his wife gave her about how to
communicate with Douglas on Skype calls. The foster mother testified that she did not
think Cassidy understood Douglas's situation "and what it would take to get himto work
through the things he's struggling with." She testified that Cassidy "relied on [the foster
parents] to step in and solve issues, and she was physically incapable of restraining
[Douglas] when he was throwing a fit."
Like Douglas's care providers, his foster father testified that Douglas
regressed dramatically after Cassidy's visits with him in Alaska. The foster father
testified that Douglas regressed about 10-12 months after Cassidy's first overnight visit
and regressed even further after the second. The foster father testified that he explained
his and his wife's concerns about Cassidy to OCS.
2. Testimony of OCS and Texas caseworkers
Douglas's caseworker, a protective services specialist with OCS, testified
that she believed placing Douglas with Cassidy was in Douglas's best interests because
the placement would "strengthen family ties." Living in Texas, Douglas would be able
to have a relationship with his father and other family members, and "there's a sense of
belonging when you're in your biological family." She testified that nothing led her to
believe that Cassidy "wouldn't be a wonderful placement for [Douglas]."
The caseworker testified that while she was considering Cassidy's request
for placement, she spoke with Cassidy on the phone about her life and her support
systems. She testified that most of the other information OCS considered came from the
Texas ICPC study, which OCS relied on "really heavily" in the absence of other
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available ways of evaluating Cassidy's appropriateness as a placement for Douglas.
Texas social workers had interviewed Cassidy, visited her home, collected records of her
income and expenses, conducted background checks, and interviewed her family and
friends. The caseworker did not know, however, whether Texas authorities had made
any "evaluation of [Cassidy's] skill set with a child with these recognized problems."
Besides the ICPC study, the caseworker relied on "just [her] conversations with
[Cassidy] and then with [Douglas's] father and his experience with her."
The caseworker testified that the decision to place Douglas with Cassidy
in Texas was made by her and her supervisor. She testified that they took the opinions
of Douglas's care providers into consideration and that this information was "just as
important as any other part." The caseworker testified that she communicated with an
employee who worked with Douglas's occupational therapists but was never in contact
with the therapists directly. She testified that she received the occupational therapist's
report describing the difficult transition into Cassidy's care following a therapy session.
She testified that she emailed Douglas's preschool teacher at the end of October asking
for an update on Douglas's behavior, that she received the update, and that she
responded to confirm she had received it. She testified that she always reviewed with
her supervisor all the information she received from care providers.
The caseworker testified that changing Douglas's placement was "a really
hard decision" because the foster parents had done "a really great job with" him. She
testified that Douglas was "very attached to them" and that OCS took this into
consideration by "mak[ing] the transition plan longer." She acknowledged that themove
would be traumatic for Douglas. She testified that she understood the foster parents'
concerns about placing Douglas with Cassidy, but that her placement decision was
reinforced by the GAL's report of a visit with Cassidy (not further described in the
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3
testimony), her own observations of Douglas "by himself with grandma," and the report
of another OCS employee who saw that Cassidy "was able to de-escalate [Douglas]
when he was pretty out of control and was able to physically handle him."
This otherOCSsocialworker alsotestifiedattheplacement reviewhearing.
She had spent about an hour with Douglas and Cassidy after transporting Douglas
between his foster parents and Cassidy for their final visit in December. The employee
testified that Douglas had a 30-minute tantrum upon arrival at Cassidy's hotel, but that
Cassidy did a "great" job of calming him. The social worker had no concerns about
Cassidy's ability to care for Douglas.
The Texas social worker who completed Cassidy's ICPC study also
testified at the hearing and explained that the study did not indicate any concerns. She
acknowledged that the extent of Douglas's emotional, developmental, and physical
challenges were relevant to the ICPC process, but she was unaware of Douglas's specific
challenges other than that he "had some behavioral issues."
3. Cassidy's testimony
Cassidytestified that her visits with Douglas went well. Sheacknowledged
Douglas's tantrums during transfers, but she testified that he became happy "[a]lmost
immediately" once they were alone. She testified that her extended visit with Douglas
in Texas was going well; at the time of the hearing he had been with her for about a
month. According to Cassidy, Douglas was well behaved while in her care; he had no
major tantrums and only acted out during Skype visits with his foster parents. She
testified that Douglas did not have other meltdowns, "just . . . little disagreements" two
or three times a week. She testified that Douglas generally responded well to her
3 On December 5 the caseworker observed Douglas and Cassidy at the hotel
before they traveled back to Texas. She testified that Douglas seemed happy and
Cassidy handled him well.
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parenting. She testified that one of his only "meltdowns" was when the Texas social
worker assigned to the case visited three or four days after Douglas first arrived in
4
Texas.
Cassidy testified that she had not observed Douglas's socialization
developmental delays and was unaware of his physical challenges. When asked if
Douglas has "profound emotional attachment issues," she said, "I don't know. He took
to me pretty good." She was beginning to research his challenges online but had not
communicated with his foster parents or other care providers about his needs.
Cassidy testified that she recognized the importance of getting professional
support for Douglas in Texas. She testified that she had identified a primary care
physician, a school that offered occupational therapy, and a possible location for play
5
therapy. However, Douglas had yet to have any professional care while in Texas.
C. The Superior Court's Determination That OCS Abused Its Discretion
The superior court made an oral ruling on January 8, 2019, at the close of
the hearing, finding that OCS abused its discretion when it decided to place Douglas with
Cassidy. The court issued an extensive written order on January 29, granting the stay of
6
placement proceedings.
The court introduced its written findings of fact by stressing
4 The child protective services worker in Texas testified that Douglas started
to have a tantrum, but Cassidy was able to calm him down in approximately three
minutes. She conveyed this information to Douglas's caseworker.
5 The OCS caseworker testified that Douglas was unable to enroll in Texas
Medicaid to pay for the services because he was technically only visiting the state, but
that services would recommence once the Texas Medicaid issues were resolved. In
response to the court's question whether OCS could have bypassed Medicaid and paid
for professional counseling itself, the caseworker said she did not know.
6 In the meantime, on January 17, the foster parents had filed their petition
(continued...)
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how unusual it was to have foster parents with "any colorable claim to contest OCS'[s]
family-first placement authority"; the court noted the breadth of OCS's discretion and
the high evidentiary burden the foster parents had to meet in order to successfully
challenge the agency's decision.
The court concluded, however, that the foster parents had met their high
burden. The court found that Douglas had "significant mental, social, and physical
needs, which require full-time, constant parental and professional supervision and care."
But it found that Cassidy had "neither the understanding of [Douglas]'s conditions nor
the capacity to beneficially address them"; that "OCS should have known, or at least
suspected, that [Cassidy] was unsuited for placement"; and that it "could have evaluated
[Cassidy]'s suitability with the evidence it was given by [Douglas]'s care providers or
the [foster parents], but decided not to do so." The court concluded that OCS abused its
discretion (1) when it decided "to relocate [Douglas] to Texas with a person that OCS
knew, or with the exercise of reasonable caution should have known, was without
apparent capacity to appreciate, understand, or address [Douglas]'s special needs";
(2) "by not creating a trauma-informed transition plan tailored to [Douglas]'s unique
needs"; and (3) "by removing [Douglas] from the [foster parents'] custody and thereby
ending the therapeutic and educational programs necessary to his emotional stability and
development."
OCS appeals both the superior court's decision to allow the foster parents
to intervene in the CINA case and its determination that the placement decision was an
abuse of discretion.
6 (...continued)
to adopt Douglas.
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III. STANDARDS OF REVIEW
"Whether the trial court's findings comport with the requirements of the
7
CINA statutes and rules is a question of law which we review de novo." "Statutory
interpretation raises questions of law to which we apply our independent judgment. We
must adopt the rule of law that is most persuasive in light of precedent, reason, and
8
policy." A superior court's "grant or denial of a motion for permissive intervention
9
is . . . review[ed] for abuse of discretion." "A decision constitutes abuse of discretion
if it is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper
10
motive.' "
"The legislature has committed placement decisions to [OCS]'s
11 "[T]he superior court has authority to review [OCS]'s decision to
discretion."
determine if it is in the best interests of the minor. In reviewing the decision, the superior
court applies the abuse of discretion standard."12
This is an objective test: the court asks
"whether the reasons for the exercise of discretion are clearly untenable or
7 S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 3 P.3d 342, 344 (Alaska 2000).
8 Id. (footnote omitted).
9 State, Dep'ts of Transp. &Labor v. Enserch Alaska Constr., Inc., 787 P.2d
624, 629 (Alaska 1989).
10 del Rosario v. Clare, 378 P.3d 380, 383 (Alaska 2016) (alteration in
original) (quoting Gunn v. Gunn, 367 P.3d 1146, 1150 (Alaska 2016) (quoting Roderer
v. Dash, 233 P.3d 1101, 1107 (Alaska 2010))).
11 In re B.L.J., 717 P.2d 376, 380 (Alaska 1986).
12 Id. at 380-81.
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13
unreasonable." Whether the superior court erred in finding that OCS abused its
14
discretion is a mixed question of law and fact.
"For mixed questions of law and fact,
'we review factual questions under the clearly erroneous standard and legal questions
15
using our independent judgment.' "
IV. DISCUSSION
A. The Superior Court Did Not Err Or Abuse Its Discretion When It
Allowed The Foster Parents To Intervene In The CINA Proceedings
To Contest OCS's Placement Decision.
1. Foster parent intervention does not violate the CINA statutes.
Alaska Statute 47.10.080(s) allows OCS to transfer a child from one
placement to another "in the child's best interests." "A party opposed to the proposed
transfer may request a hearing," at which the party "must prove by clear and convincing
16
"Party"
evidence that the transfer would be contrary to the best interests of the child."
is not a statutorily defined term, but as defined in the CINA Rules it includes "the child,
the parents, the guardian, the guardian ad litem, [OCS], an Indian custodian who has
intervened, an Indian child's tribe which has intervened, and any other person who has
17
been allowed to intervene by the court."
13 Jensen D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 424 P.3d 385, 387 (Alaska 2018) (quoting Burke v. Maka , 296 P.3d 976, 980
(Alaska 2013)).
14 See Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 204 P.3d 1013, 1018 (Alaska 2009), as amended on reh'g (Apr. 21, 2009).
15 Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018) (quoting Ben M.,
204 P.3d at 1018).
16 AS 47.10.080(s).
17 CINA Rule 2(l) (emphasis added).
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Intervention is governed by Alaska Civil Rule 24. We note that CINA
Rule 1(e) lists Civil Rules that "apply to child in need of aid proceedings except to the
extent that any provisions of these civil rules conflict with the Child in Need of Aid
Rules," and Civil Rule 24 is not included in the list. But CINA Rule 1(g) further
provides that "[w]here no specific procedure is prescribed by these rules, the court may
proceed in any lawful manner, including application of the Civil Rules," so long as
"[s]uch a procedure [is not] inconsistent with these rules and [does not] unduly delay or
otherwise interfere with the unique character and purpose of child in need of aid
proceedings." The CINA Rules explicitly allow intervention but "no specific procedure
18 We have accordingly applied Civil Rule 24 to CINA
is prescribed" for it.
proceedings.19
18 CINA Rule 1(g).
19 See, e.g. , S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 3 P.3d 342, 345 & n.8 (Alaska 2000) (citing Civil Rule 24(a) as allowing
sister's intervention as of right in CINA case to argue for relative placement); In re
W.E.G., 710 P.2d 410, 416-17(Alaska1985) (citing Civil Rule24(b) andconcluding that
grandparents should have been allowed to participate as parties in CINA proceedings),
superseded by statute on other grounds , AS 25.23.130(c), as recognized in In re A.F.M. ,
960 P.2d 602 (Alaska 1998); In re J.R.S. , 690 P.2d 10, 17 (Alaska 1984) (observing that
when considering tribe's right to intervene in CINA case post-termination to contest
foster parent adoption, "an analysis focused on the requirements of our Civil Rule 24 is
appropriate"); see also McGrew v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs. , 106 P.3d 319, 320-21 (Alaska 2005) (noting superior court's grant of
intervention in CINA case to grandparents and to woman who was mother's friend and
child's babysitter); Szarleta v. State, Dep't of Health & Soc. Servs. , No. S-9569, 2000
WL 34546723, at *1 (Alaska Dec. 13, 2000) (affirming superior court's denial of
godfather's motion for intervention in CINA case because godfather did not have "legal
status necessary to ensure himintervention of right under Alaska Rule of Civil Procedure
24(a)" and "trial court did not abuse its discretion in denying permissive intervention
under Civil Rule 24(b)").
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20
Under Civil Rule 24, intervention may be permissive or as of right.
Douglas's foster parents argued both approaches, but the superior court limited its order
to a grant of permissive intervention, which depends on a finding that "an applicant's
21 The
claim or defense and the main action have a question of law or fact in common."
superior court found that the foster parents' claim and the CINA case shared "the same
questions of law and fact": what was in Douglas's best interests.
OCS argues that, as a matter of law, foster parents should not be able to
intervene in ongoing CINA proceedings because it would contravene the language and
purposes of the CINA statutes. We agree with much of OCS's policy argument even
though we must reject the flat rule it proposes. We agree that allowing foster parents to
intervene as a matter of course would be contrary to the goals of the CINA statutes, and
courts should be hesitant to allow it. Among the primary purposes of the CINA statutes
is "to preserve and strengthen the child's family ties unless efforts to preserve and
22
strengthen the ties are likely to result in physical or emotional damage to the child."
OCS is therefore required to "search for an appropriate placement with an adult family
member or family friend."23
20 Alaska R. Civ. P. 24(a)-(b). Intervention as of right depends on a showing
that "the applicant claims an interest" in the action's subject matter, "the disposition of
the action may as a practical matter impair or impede the applicant's ability to protect
that interest," and the applicant's interest is not otherwise "adequately represented by
existing parties." Alaska R. Civ. P. 24(a).
21 Alaska R. Civ. P. 24(b).
22 AS 47.05.060 (stating the purpose of Title 47 as it relates to children).
23 AS 47.14.100(e); see also AS 47.14.100(e)(3)(A) (listing order of
preference for placement, beginning with "an adult family member").
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Yet because family reunification takes time, successful CINA cases often
depend on the willingness of third parties to act as foster parents in the interim. We have
observed that "[a] foster parent serves a vital but inherently temporary role in a child's
24 Foster parents are entrusted with the emotionally challenging task of providing
life."
love and care for what ideally - if the family reunification goals are met - will be a
limited time. Foster parents often grow to love their foster children as their own. It is
understandable that foster parents would want to advocate in the CINA case for what
they see as a child's best interests, especially if their view differs from OCS's. But as
OCS points out, not only is the agency itself tasked with pursuing the child's best
interests, but the child's best interests may be represented separately by a GAL (as they
are here), who is charged with bringing an independent perspective to OCS's decisions
on placement and other matters. Foster parent intervention risks delay and complication,
distracting from OCS's mandate of working toward family reunification.25
Foster parentintervention shouldthereforebetherareexception rather than
the rule. We cannot conclude, however, that it is precluded as a matter of law. As noted
24 Osterkamp v. Stiles , 235 P.3d 178, 187 (Alaska 2010).
25 See, e.g. , Smith v. Org. of Foster Families for Equal. & Reform , 431 U.S.
816, 836 n.40 (1977) ("[I]n theory foster care is intended to be only temporary, [and]
foster parents are urged not [to] become too attached to the children in their care."); id.
at 856 (Stewart, J., concurring) ("The New York Legislature and the New York courts
have made it unmistakably clear that foster care is intended only as a temporary way
station until a child can be returned to his natural parents or placed for adoption.");
Mager v. Sherman, 20 A.D.3d 399 (N.Y. App. Div. 2005) ("Although foster parents
often provide the same care, love, and support expected of biological or adoptive parents,
thefoster-familyrelationshipis frequently temporary,contractual in nature, and carefully
circumscribed by statute . . . ."); In re Custody of A.C. , 200 P.3d 689, 693 (Wash. 2009)
(Johnson, J., concurring) ("Although emotional bonds formin temporaryfoster carewith
loving foster parents, the resulting ties must not be allowed to interfere with a parent's
constitutional right to long-term custody.").
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above, AS 47.10.080(s) allows any "party opposed to the proposed transfer" to request
a hearing to prove that OCS's placement decision is not in the child's best interests. The
legislature could have defined "party" narrowly in this context, but because it did not we
26 where "party" includes "any other person
apply the definition used in the CINA Rules,
who has been allowed to intervene by the court."27 The phrase "any other person" will
thus include foster parents when the court properly exercises its discretion to allow them
to intervene.28 The question becomes whether the court's grant of permissive
intervention was an abuse of discretion under the circumstances of this case.
2. Thesuperiorcourt's grantofpermissiveinterventionwas not an
abuse of discretion.
We conclude that the superior court did not abuse its discretion when it
allowed the foster parents to intervene in this case for the limited purpose of challenging
the decision to place Douglas with Cassidy.29 First, because the foster parents were
26 See Mississippi ex rel. Hood v. AU Optronics Corp. , 571 U.S. 161, 169-70
(2014) (relying on presumption that "Congress is aware of existing law when it passes
legislation" to conclude that Congress, in enacting class action legislation, "used the
terms 'persons' and 'plaintiffs' just as they are used in Federal Rule of Civil
Procedure 20, governing party joinder" (quoting Hall v. United States , 566 U.S. 506, 516
(2012))); cf. Huit v. Ashwater Burns, Inc. , 372 P.3d 904, 913 (Alaska 2016) (noting rule
of statutory construction "that the legislature is [presumed to be] aware of existing case
law when it enacts or modifies the law").
27 CINA Rule 2(l) (defining "party").
28 See Roberto F. v. Ariz. Dep't of Econ. Sec., 301 P.3d 211, 216 (Ariz. App.
2013) ("Clearly, the phrase 'any other person' [in juvenile court rule] is broad enough
to include intervention by a foster parent."); In re Zhang, 734 N.E.2d 379, 383-84 (Ohio
App. 1999) (construing phrase "any other person specifically designated by the court"
in juvenile rule as allowing court "wide discretion" to name foster parents as parties).
29 We note that the court's order granting intervention stated that the foster
(continued...)
-17- 7489
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identified as a "pre-adoptive foster placement" and attested to their desire to adopt
Douglas, their claim did share a "question of law or fact" with the placement review: the
30 This is not to say, however, that every pre-adoptive foster parent
child's best interests.
is entitled to permissive intervention. A common question of law or fact, while required
by Civil Rule 24(b), is not the only consideration stated in the rule: "In exercising its
discretion the court shall [also] consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties." If foster parents' only
rationale for intervening is to explain their own attachment to the child and their plans
for the child's future in contrast to those of the biological parent, their involvement will
in most cases be more prejudicial than helpful to the process.
What sets this case apart is the foster parents' representation that they had
specific evidence about the proposed placement that the court was not going to receive
from any existing party. It is true that the foster father's affidavit submitted in support
of the foster parents' intervention motion focused almost exclusively on the strength of
their bond with the child and OCS's alleged failure to appreciate that bond. Many foster
parents could make the same representations. But the foster father also asserted that
"what little time [Douglas] has spent with the grandmother was detrimental to the boy"
29 (...continued)
parents were "permitted to intervene in any placement review hearing regarding
[Douglas]." This was clearly overbroad; theremay be future placement reviews in which
the foster parents have nothing substantive to add beyond evidence of their own
attachment to the child, which, as we explain below, should not be sufficient to justify
their intervention. We caution courts to limit foster parent intervention to specific
upcoming proceedings.
30 See AS 47.10.080(s) (authorizing transfer of child from one placement to
another "in the child's best interests"); AS 25.23.120(c) (stating that final decree of
adoption depends in part on determination that "the adoption is in the best interest of the
person to be adopted").
-18- 7489
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and that Douglas's "interactions with the paternal grandmother have only resulted in
severe setbacks emotionally and behaviorally as attested to by his teachers and
therapists." The testimony at the hearing bore out this representation, as several of
Douglas's professional caregivers testified about what they saw as Douglas's regression
following his grandmother's visits.
Keeping in mind the purposes of the CINA statutes, we conclude that this
is the rare CINA case in which it was not an abuse of discretion for the superior court to
permit foster parent intervention to contest OCS's placement decision.
3. Allowingtrial courts to exercisediscretioninthiscontext, within
defined limits, finds support in cases from other jurisdictions.
We recognize that child protection laws across the country differ in
important ways. Some state statutes require courts to allow foster parent intervention in
31
child protection cases,
while others authorize intervention but leave the court discretion
32
to deny it. Some states allow foster parents themselves to petition for the termination
31 See, e.g. , C.W.B., Jr. v. A.S. , 410 P.3d 438, 444 (Colo. 2018) ("After a child
has been adjudicated dependent or neglected, [Colo. Rev. Stat. § 19-3-507(5)(a) (2017)]
permits 'foster parents who have the child in their care for more than three months' and
who have information or knowledge concerning the care and protection of the child to
intervene in pending dependency and neglect proceedings as a matter of right."); see also
N.Y. Soc. Serv. Law § 384(3) (McKinney 2018) ("[A foster parent] having custody [of
a child] for more than twelve months, through an authorized agency, shall be permitted
as a matter of right, as an interested party to intervene in any proceeding [involving the
custody of the child].").
32 In re Phy. W., 722 A.2d 1263, 1264 (D.C. 1998) (noting that under D.C.
law, trial court is specifically authorized "to designate a foster parent as a party" in
neglect proceeding); In re E.G., 738 N.W.2d 653, 655 (Iowa App. 2007) (stating that "[a]
foster parent 'may petition the court to be made a party' to juvenile proceedings" but
noting that "[t]he juvenile court is accorded a certain amount of discretion to deny
intervention in proper cases" (quoting Iowa Code § 232.91(2) (2005))); In re S.L.W., 529
(continued...)
-19- 7489
----------------------- Page 20-----------------------
33
of parental rights to a child in state custody. In the absence of governing statutes, some
courts have decided that foster parents should be allowed to intervene as a matter of
34
course, whereas others have decided that foster parent intervention is fundamentally
32 (...continued)
S.W.3d 601, 615 (Tex. App. 2017) (explaining that foster parent who has cared for child
for at least 12 months has standing to intervene in suits to terminate parental rights but
that whether to allow intervention is still committed to trial court's discretion); see also
Haw. Rev. Stat. § 587A-4 (2018) (providing that "party" in child protection statutes
"may include any . . . person, including the child's current foster parent . . . , if the court
finds that such person's participation is in the best interest of the child"); 705 Ill. Comp.
Stat. 405/1-5(2)(d) (2018) ("The court may grant standing to any foster parent if the
court finds that it is in the best interest of the child for the foster parent to have standing
and intervenor status."); Ind. Code § 31-34-21-4.5 (2019) ("A foster parent . . . may
petition the court to request intervention as a party to a [child in need of services]
proceeding . . . .").
33 See, e.g., Roberto F., 301 P.3d at 214 (involving foster parents who moved
to intervene in state-initiated "dependency proceedings" and "also filed a separate
termination petition seeking to sever [the biological parents'] parental rights"); see also,
e.g., F.W. v. T.M., 140 So. 3d 950, 952 (Ala. Civ. App. 2013) (involving foster parents
who moved to intervene in state-initiated "dependency case" and "also filed a separate
petition for termination of the mother's parental rights"); Cooper v. S.C. Dep't of Soc.
Servs., 835 S.E.2d 516, 517 (S.C. 2019) (involving foster parents who initiated "private
actions seeking termination of parental rights" and sought to intervene in state-initiated
"removal actions").
34 See I.B. v. Dep't of Children and Families, 876 So. 2d 581, 584 (Fla. Dist.
App. 2004) (holding that "foster parents "clearly have standing to intervene" in post-
termination placement proceedings (citing Fla. R. Civ. P. 1.230)); In re Shelton, 654 P.2d
487, 491 (Kan. App. 1982) (holding that civil rules allowed foster parent intervention,
noting that "[t]here would be no reason to permit foster parents to request and receive
notice of a hearing at which they could not present evidence"); State ex rel. C.H. v.
Faircloth, 815 S.E.2d 540, 554 (W. Va. 2018) ("[A]t such time as termination appears
imminent . . . , it is in the interests of all parties that the foster parents be recognized as
occupying a critically important position relative to the child and that such position be
(continued...)
-20- 7489
----------------------- Page 21-----------------------
35
inconsistent with the goals of child protection proceedings.
What appears to be the middle ground in this diverse case law - giving
due weight to the arguments for and against foster parent intervention - is a reliance on
36 As we emphasize above, that
Civil Rule 24(b) and its grant of trial court discretion.
discretion must be exercised very cautiously in the CINA context. Other states' cases
help us place some parameters around the trial court's discretion.
34 (...continued)
dignified with full intervenor status if sought.").
35 See, e.g., In re Doe , 9 P.3d 1226, 1232-33 (Idaho 2000) (concluding that
permissive intervention under Idaho Civil Rule 24(b) is inconsistent with Idaho's Child
Protective Act and statutes governing termination of parental rights and should not be
applied in such proceedings).
36 See, e.g., F.W., 140 So. 3d at 958 (finding no abuse of discretion in grant
of intervention to foster parents to contest relative placement in dependency action);
Roberto F., 301 P.3d at 219 (finding no abuse of discretion in grant of intervention to
foster parents in dependency proceeding); In re G.H., 265 So. 3d 960, 965 (La. App.
2019) (explaining that although former fosterparents losetheir right to participate in case
review and permanency proceedings, trial court retains discretion to allow their
participation if necessary "to facilitate the permanent placement of the child and to
[e]nsure that the best interests of the child are protected"); In re Marcia L., 785 P.2d
1039, 1040-41 (N.M. App. 1989) (affirming trial court's denial of foster parent
intervention as of right; reviewing denial of permissive intervention for abuse of
discretion and affirming it on grounds that motion was technically deficient); In re Baby
Boy Scearce, 345 S.E.2d 404, 409-11 (N.C. App. 1986) (affirming order granting foster
parents permissive intervention in termination suit pursuant to North Carolina Civil Rule
24(b)); In re Zhang, 734 N.E.2d 379, 383-85 (Ohio App. 1999) (finding no abuse of
discretion in grant ofpermissiveinterventiontofoster mother in terminationproceeding);
In re J.H., 815 P.2d 1380, 1385-86 (Wash. 1991) (holding that foster parent
"intervention is within the juvenile court's informed discretion" but "would be
appropriate only to the extent that the rights of the foster parents and the rights of the
legal parents do not conflict"), superseded by statute on other grounds, Wash. Rev. Code
§ 13.34.100 (1993), as recognized in In re E.H., 427 P.3d 587 (Wash. 2018).
-21- 7489
----------------------- Page 22-----------------------
In Roberto F. v. Arizona Department of Economic Security the trial court
allowed foster parents to permissively intervene in a dependency proceeding pursuant
37 The father whose rights were terminated
to Arizona Rule of Civil Procedure 24(b).
38 The
appealed the intervention order, which the Arizona Court of Appeals affirmed.
court began its analysis of the issue by explaining that foster parents are identified in the
juvenile court rules as "participants" in dependency proceedings rather than "parties";
however, like Alaska's CINA rules, Arizona's juvenile court rules define "party" to
include "a child, parent, guardian, [the child protection agency] or petitioner, and any
other person or entity who has been permitted to intervene pursuant to [Arizona Civil]
Rule 24."39 Interpreting this rule, the court said, "Clearly, the phrase 'any other person'
is broad enough to include intervention by a foster parent."40
Notingpreliminarily that Arizona Civil Rule 24 is construed liberally "with
the view of assisting parties in obtaining justice and protecting their rights,"41 the court
first noted that the foster parents made no claim to a right to intervene under Civil
Rule 24(a); in fact, a juvenile court rule explicitly states that the foster parents' right to
notice and the opportunity to be heard at proceedings involving foster children "shall not
require that any foster parents . . . be made a party to such a proceeding."42 The court
37 301 P.3d at 214-15.
38 Id. at 215-19.
39 Id. at 216 (emphasis in original) (quoting Ariz. R. Juv. Ct. P. 37(A)).
40 Id.
41 Id. (quoting Bechtel v. Rose, 722 P.2d 236, 240 (Ariz. 1986)).
42 Id. at 217 (alteration in original) (emphasis in original) (quoting Ariz. R.
Juv. Ct. P. 41(1)(B)).
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----------------------- Page 23-----------------------
43
focused on permissive intervention under Civil Rule 24(b). It concluded that "the trial
court did not abuse its discretion in determining there were common issues of law and
fact," because the child protection agency was pursuing not only reunification but also
a "concurrent case plan of severance and adoption," issues shared by the foster parents'
termination petition. 44
Arizona case law required the court to then consider whether "intervention
45 The court recognized that there were arguments on
[was] in the child's best interests."
both sides. On the one hand, the court saw "[n]othing in the record" demonstrating that
the existing "parties and participants, absent intervention by Foster Parents, were unable
or unwilling to fully promote and protect the best interests of the Children."46 On the
other hand, the court acknowledged that the trial court could reasonably view the foster
parents' "significant relationship with the Children and their desire to protect the
Children" as potentially helpful in fully developing the relevant factual issues.47 The
court concluded: "When competing factors such as those discussed above guide a
court's exercise of discretion, it is rare that an appellate court will find an abuse of
discretion. Although we may not have made the same decision as the trial court, we are
unable to find such an abuse of discretion here."48
43 See id. at 216-18.
44 Id. at 218.
45
Id. (citing Bechtel, 722 P.2d at 241).
46 Id. at 219.
47 Id.
48 Id.
-23- 7489
----------------------- Page 24-----------------------
Finally, the court considered the potential prejudice to existing parties if
49
permissive intervention was allowed under Civil Rule 24(b).
Recognizing the
importance of the father's interests and the clear prejudice he suffered by "fac[ing] a new
adversarial party that was strongly opposed to reunification," the court nonetheless
concluded that the trial court, in its discretion, could decide that any prejudice suffered
50
by the father was outweighed by the children's best interests.
The Ohio Court of Appeals applied similar rules in In re Zhang and found
no abuse of discretion in a trial court's order permitting a foster mother to intervene in
a parental-rights termination suit.51 A county family services agency was granted
temporary custody of a child and placed her in foster care, but the mother "abducted her
child from the foster mother[] and absconded to the People's Republic of China."52 The
agency essentially gave up, moving to end its temporary custody and return custody to
the now-absent mother.53 The trial court granted the foster mother's motion to intervene
and, following trial, terminated the mother's parental rights in absentia and granted legal
54
custody to the foster mother.
49 Id. at 219-20.
50 Id. at 220.
51
734 N.E.2d 379, 383-85 (Ohio App. 1999).
52 Id. at 380-81.
53 Id. at 381.
54 Id.
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On appeal the mother's GAL argued among other things that the trial court
55
abused its discretion when it allowed the foster mother to intervene.
The appellate
court first looked to the rules governing juvenile proceedings, which, similar to
Arizona's and our own, defined "party" to include not only parents, the state, and GALs,
56 The court observed
but also "any other person specifically designated by the court."
that "[p]ursuant to this rule, a juvenile court has wide discretion in affording any
individual party status."57 The court continued: "While a foster parent is not
automatically entitled to party status, . . . [the court's wide] discretion includes naming
foster parents as parties."58 Noting that in the case before it "the child welfare system
failed miserably to protect the best interests of the child" - particularly in its "refusal
to fight for the child after she had been abducted to China" - the court concluded that
"[t]he foster mother's understandable bond with the child placed her in the position of
being an advocate for the child when those who had that responsibility failed to execute
59 And "[w]ith that thought, the [trial] court could reasonably look to the foster
[it]."
mother as the only remaining defender of the child's best interests; consequently, the
[trial] court did not abuse its discretion by permitting the foster mother to become a party
to this action."60
55 Id. at 383.
56 Id. (quoting former Ohio R. Juv. P. 2(X), recodified as Ohio R. Juv. P.
2(Y)).
57 Id. (quoting In re Hitchcock, 696 N.E.2d 1090, 1095 (Ohio App. 1996)).
58 Id. at 384.
59 Id.
60 Id. at 385.
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----------------------- Page 26-----------------------
The Alabama Court of Civil Appeals considered the issue of foster parent
61
intervention in F.W. v. T.M.
The child protection agency decided to move a child in
state custody from the foster parents' home to the home of the child's great-aunt and
62 The foster parents moved to intervene in the pending dependency case,
great-uncle.
asking that the court prevent the move because of concerns about the relatives' health
and their "close association with and location to family members and others who
engaged in illegal or illicit activity."63 Following trial, the juvenile court found that the
child's great-aunt and great-uncle were not "fit" and "able," as required to give them
statutory placement priority, due to their dangerous associations, health, age, and poor
history as parents.64 It found that it was in the child's best interests to award legal and
physical custody to the foster parents instead.65
Onappeal therelatives argued that foster parent intervention was precluded
by the governing statutes, which provided that foster parents were entitled to notice of
and the opportunity to be heard in "any juvenile court proceeding being held with respect
66 The statute further provided: "No foster parent . . . shall be
to a child in their care."
made a party to a juvenile court proceeding solely on the basis of this notice and right
61 140 So. 3d 950 (Ala. Civ. App. 2013).
62 Id. at 952.
63 Id.
64 Id. at 955-56.
65 Id. at 956.
66 Id. at 957 (quoting Ala. Code § 12-15-307 (1975)).
-26- 7489
----------------------- Page 27-----------------------
67
to be heard pursuant to this section." The appellate court rejected the relatives'
argument, stating that "the plain language of [the Alabama statute] prohibits the court
from making a foster parent . . . a party solely based on the rights established by the
statute," "but the plain language of the statute does not prohibit a foster parent from
petitioning to intervene in an action before the juvenile court." 68
Permissive intervention was governed by Alabama Civil Rule 24(b),
pursuant to which the Alabama court "has routinely recognized that relative caregivers
and foster parents may seek and be granted intervention in a dependency action."69 The
court concluded that both the foster parents and the relative caregivers were properly
made parties to the dependency action under Civil Rule 24(b).70
The South Carolina Supreme Court addressed the issue in Cooper v. South
Carolina Department of Social Services, holding that the family court erred by denying
foster parents' motions to intervene in ongoing actions to remove children from their
71 The state child protection agency took children from their home,
parents' custody.
placed them with foster parents, and began "removal actions" with the goals of
termination of parental rights and adoption.72 When the agency informed the foster
parents that the children would be removed abruptly from their care and placed with a
great-uncle, the foster parents filed their own petitions for termination of parental rights
67 Id. (quoting Ala. Code § 12-15-307).
68 Id.
69
Id. at 958.
70 Id.
71 835 S.E.2d 516, 520-22 (S.C. 2019).
72 Id. at 518.
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----------------------- Page 28-----------------------
73
and adoption, also moving to intervene in the agency's removal actions. The family
court denied intervention, and the foster parents appealed. 74
The supreme court began its analysis by noting that "[g]enerally, the rules
of intervention should be liberally construed where judicial economy will be promoted
by declaring the rights of all affected parties."75 But the court held that foster parents had
no absolute right to intervene based on their status as foster parents: their intervention
could only be permissive, and the right to intervene arose, "if at all, through the evolution
of a special relationship illustrated to the family court via the underlying facts of each
individual case."76 The court concluded: "A family court should therefore apply Rule
24(b)(2) when analyzing whether or not to grant a foster parent's motion to intervene."77
Applying the rule's standard, the court held that the foster parents had
demonstrated that their private claims and the removal actions had "questions of law and
fact in common": the best interests of the children, "especially when considering the
78 The court also concluded
length of time the Children have been with Foster Parents."
that "intervention [would] not unduly delay or prejudice the adjudication of the rights of
73 Id.
74 Id. at 520.
75 Id. (quoting Ex Parte Gov't Emp.'s Ins. Co. v. Goethe, 644 S.E.2d 699, 702
(S.C. 2007)).
76 Id. at 521.
77 Id. South Carolina Civil Rule 24(b)(2) permits intervention "when an
applicant's claim or defense and the main action have a question of law or fact in
common." South Carolina law also specifically identifies foster parents as among those
"[p]arties in interest" who are allowed to move to intervene in removal actions "pursuant
to the rules of civil procedure." S.C. Code § 63-7-1700(J) (Supp. 2019).
78 Cooper, 835 S.E.2d at 521.
-28- 7489
----------------------- Page 29-----------------------
79
the parties to these [removal] actions." While "stress[ing] that [its] decision . . . should
not be interpreted as a signal to the family court bench and bar that intervention should
be granted to foster parents in every case," the court concluded that "[t]he decision to
grant intervention remains in the discretion of the family court following its analysis of
the facts and procedural posture of each case." 80
In Valentine v. Lutz the Minnesota Supreme Court considered the appeal
of former foster parents who, attempting to recover custody fromthe biological mother's
relatives, had been denied intervention in a protective services proceeding.81 Although
confirming that the foster parents had no right to intervene, the supreme court observed
that "the trial court does have discretion to allow intervention of foster parents,"
particularly when they have "provide[d] excellent care for a child for an extended
period" and "may have information which can assist a trial court in making its decisions
in [child protection] proceedings."82 The court concluded that whether to allow
intervention is a decision "that should remain within the sound discretion of the trial
court," "guided by the principle that '[t]he paramount consideration in all proceedings
concerning a child alleged or found to be in need of protection or services is the best
interests of the child.' "83 The court found no abuse of discretion in the trial court's
denial of intervention.84
79 Id. at 522.
80 Id.
81
512 N.W.2d 868, 869-70 (Minn. 1994).
82 Id. at 871.
83 Id. (alteration in original) (quoting Minn. Stat. § 260.011(2)(a) (1992)).
84 Id.
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The Connecticut Supreme Court affirmed a denial of preadoptive parent
intervention in In re Baby Girl B. while, like these other courts, emphasizing the
85 The mother sought to reopen the case
discretionary nature of the trial court's task.
post-termination, arguing that she had not received notice that she was losing her
parental rights; the preadoptive parents moved unsuccessfully to intervene.86 After
reopening the case and holding a termination trial, the trial court approved a stipulated
disposition "that provided for the return of the child to her mother, subject to the
protective supervision of [the child protection agency] during the succeeding six
months."87
Onappeal thesupremecourt first decided that preadoptive-parentstatus did
not justify intervention as of right "[w]hen the issue is the validity of the termination of
88 As for permissive intervention, the court began its
a parent's rights to her child."
discussion by emphasizing the breadth of the trial court's discretion: "Becausequestions
of permissive intervention are committed to the sound discretion of the trial court, the
preadoptive parents [bore] the heavy burden of demonstrating an abuse of that discretion
if they [were] to prevail."89 The court found that the preadoptive parents did not carry
that burden.90 It noted that preadoptive parent intervention tempts "judges or social
workers, . . . consciously or unconsciously, to compare unfavorably the material
85 618 A.2d 1, 9 (Conn. 1992).
86 Id. at 5-6.
87
Id. at 7.
88 Id. at 8-9.
89 Id. at 9.
90 Id.
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----------------------- Page 31-----------------------
advantages of the child's natural parents with those of prospective adoptive parents and
therefore to reach a result based on such comparisons rather than on the statutory
91
criteria." And because the preadoptive parents were attempting to intervene in a
proceeding which "was concerned only with the statutory criteria alleged as grounds for
terminating the mother's parental rights, [their] intervention would have been of little or
no value to the court's decision on whether the grounds for termination had been
92
proved."
In following those courts that allow intervention in this context, we
highlight our concerns with the trial courts' exercise of discretion under Alaska Civil
Rule 24(b). We agree with those courts that have cautioned against allowing foster
parent intervention to devolve into a comparative assessment of the foster parents' and
93 94
our CINA statutes plainly do not
Unlike some state laws,
biological parents' fitness.
contemplate private actions for the termination of parental rights to a child in state
91 Id. (quoting In re Juvenile Appeal (Docket No. 10718) , 449 A.2d 165, 167
(Conn. 1982)).
92 Id.
93 See id.; State ex rel. C.H. v. Faircloth, 815 S.E.2d 540, 550 (W. Va. 2018)
("[W]hen foster parents are involved in [abuse and neglect] proceedings . . . the circuit
court must assure that the proceeding does not evolve into a comparison of the relative
fitness of the foster parents versus the biological parents." (quoting In re Jonathan G.,
482 S.E.2d 893, 906 (W. Va. 1996))); In re J.H., 815 P.2d 1380, 1385 (Wash. 1991)
(holding that foster parent intervention may be appropriate "only to the extent that the
rights of the foster parents and the rights of the legal parents do not conflict").
94 See, e.g., Ariz. Rev. Stat. § 8-533(A) (2018) ("Any person or agency that
has a legitimate interest in the welfare of a child, including . . . a foster parent . . . may
file a petition for the termination of the parent-child relationship"); S.C. Code
§ 63-7-1710(A) (Supp. 2019) (providing that the State "shall join as party in a
termination petition filed by another party").
-31- 7489
----------------------- Page 32-----------------------
95
custody; we cannot currently conceive of a situation in which foster parent intervention
in a CINA case would be appropriate when the foster parents' purpose was to argue for
the termination of parental rights. The court's task when considering the termination of
parental rights is carefully spelled out in statute and case law with an eye toward
96 and whether the children could have a
preserving the familial bond if at all possible,
better home in foster care is irrelevant to this determination.97
On the other hand, as this case demonstrates, the law should accommodate
the rare case in which the trial court reasonably decides that foster parents have relevant
evidence it is not likely to receive from the existing parties.98 At the forefront of our
analysis is the legislature's admonition that the CINA laws "shall be liberally construed"
so that a child receives "the care, guidance, treatment, and control that will promote the
95 See CINA Rule 18(a) (stating "[OCS] may file a petition seeking
termination of parental rights").
96 See AS 47.10.088; CINA Rule 18.
97 See In re Baby Girl B., 618 A.2d at 9 ("[B]ecause the termination
proceeding was concerned only with the statutory criteria alleged as grounds for
terminating the mother's parental rights, the preadoptive parents' intervention would
have been of little or no value to the court's decision on whether the grounds for
termination had been proved."); State ex rel. C.H., 815 S.E.2d at 549-50 ("The foster
parents' involvement in abuse and neglect proceedings should be separate and distinct
from the fact-finding portion of the termination proceeding . . . ." (quoting In re
Jonathan G., 482 S.E.2d at 906)).
98 See, e.g., Valentine v. Lutz, 512 N.W.2d 868, 871 (Minn. 1994) (affirming
denial of intervention, but observing that "trial court does have discretion to allow
intervention of foster parents" who "may have information which can assist a trial court
in making its decisions in [child protection] proceedings"); In re Zhang, 734 N.E.2d 379,
384-85 (Ohio App. 1999) (affirming intervention order in which trial court concluded
that "[t]he foster mother's understandable bond with the child placed her in the position
of being an advocate for the child when those who had that responsibility failed to
execute [it]").
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----------------------- Page 33-----------------------
child's welfare and the parents' participation in the upbringing of the child to the fullest
99
extent consistent with the child's best interests ."
When the cautious use of Civil
Rule 24(b) permissive intervention is necessary to promote the child's best interest, the
trial court has the discretion to employ it.
B. The Superior Court Did Not Err In Finding That OCS's Placement
Decision Was An Abuse Of Discretion.
OCS indisputably has the statutory authority to direct the placement of
100
children in its custody. And because one of the main purposes of the CINA statutes
101
is to "preserve and strengthen" familial relationships when possible, OCS follows
statutorily defined placement preferences: first, placement with an adult family member,
102
OCS
then placement with a family friend, and, third, placement in a foster home.
"shall place the child" with an adult family member "in the absence of clear and
103
convincing evidence of good cause to the contrary."
104
But OCS's authority to direct placements is subject to judicial review.
99 AS47.10.005 (emphasis added); Theresa L. v.State, Dep't of Health &Soc.
Servs., Office of Children's Servs. , 353 P.3d 831, 838 (Alaska 2015).
100 AS 47.10.080(c)(1); In re B.L.J., 717 P.2d 376, 380 (Alaska 1986)
(interpreting"AS47.10.080(c)(1) as granting [OCS], not thesuperiorcourt, theauthority
to direct placements of minors").
101 See AS 47.05.060.
102 AS47.14.100(e)(3)(A)-(C); seealso AS47.10.080(s). Thefourth and final
placement preference is "an institution for children that has a program suitable to meet
the child's needs." AS 47.14.100(e)(3)(D).
103 AS 47.14.100(e).
104 AS 47.10.080(s) ("A party opposed to the proposed transfer may request
a hearing and must prove by clear and convincing evidence that the transfer would be
(continued...)
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105
We review any contested factual findings for clear error, overturning them only if we
are "left 'with a definite and firm conviction that a mistake has been made.' Conflicting
evidence is generally insufficient to overturn a fact finding, and we will not reweigh
106 "The trial court's factual findings
evidence if the record supports the court's finding."
enjoy particular deference when they are based 'primarily on oral testimony, because the
trial court, not this court, judges the credibility of witnesses and weighs conflicting
evidence.' "107
The superior court in this case properly approached its task with great
caution, recognizing that to overrule OCS's placement decision would be extraordinary.
In its written order following the evidentiary hearing, the court noted the statutory
preferences for family placements, if they "can be done safely," and explained:
There are very few situations where foster parents would
have any colorable claim to contest OCS'[s] family-first
placementauthority. Thepartiesrecognizethat interim/foster
care and eventual permanent placement of CINA children
subject to OCS custody are entrusted to the agency's
reasonablediscretion. Placement decisionsarereviewed only
for discretionary abuse and then only upon a very high
104 (...continued)
contrary to the best interests of the child for the court to deny the transfer."); see Saul v.
Alcorn , 176 P.3d 346, 355 (Okla. 2007) ("The trial court's function is not to rubber
stamp [the State's] placement plan.").
105 Josephine B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 174 P.3d 217, 220 (Alaska 2007).
106 In re Hospitalization of Jacob S., 384 P.3d 758, 765-66 (Alaska 2016)
(citation omitted) (quoting In re Hospitalization of Tracy C., 249 P.3d 1085, 1089
(Alaska 2011)).
107 Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v.
Sheffield, 265 P.3d 332, 335 (Alaska 2011) (quoting Josephine B., 174 P.3d at 222)).
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burden of proof (both by a preponderance of the evidence
that OCS abused its discretion and clear and convincing
evidence that the statutory preference for family-members is
not in the child's best interest). Relevant Alaskan case law
reveals that OCS placement decisions may be overturned
only upon remarkable evidentiary demonstrations. This
Court has never before had occasion to overturn an OCS
placementdecision. Thismatter, however, represents its first.
The court went on to conclude that the foster parents had met their burden
of proving that OCS abused its discretion in deciding to place Douglas with Cassidy.
The court summarized the findings supporting this conclusion: OCS had reached the
placement decision "without meaningful consideration of the child's best interests and
special needs"; the decision was "in direct opposition to professional recommendations
and counseling"; the decision failed to ensure that Douglas "could continue to receive
necessary services after the placement change"; and OCS had not properly vetted
Cassidy "and her ability and desire to meet [Douglas]'s needs." The court extensively
discussed the evidence in support of these findings.
On OCS's motion for reconsideration the court issued another order
responding to several challenges to its fact-finding and reiterating some of its essential
findings: that OCS should not have relied "so heavily" on the Texas ICPC study because
it failed to take account of "the uniqueness of [Douglas]'s conditions, which require full-
time parental, professional care and are some of the most extreme trauma-based
behaviors observed by his teacher"; that OCS did not do enough to arrange appropriate
therapies and other services in Texas; and that Cassidy "did not have an actual, realistic
appreciation of [Douglas]'s special needs" or "the ability to understand and implement
[Douglas]'s at-home . . . care." The court rejected OCS's argument that the court was
simply substituting its judgment for OCS's, stating that it was instead carrying out the
judicial task of oversight - determining whether OCS had abused its discretion.
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1. The superior court did not clearly err in its challenged findings
of fact.
OCS contends that several significant factual errors underlie the superior
court's finding that OCS abused its discretion. First, OCS argues that the superior court
"exaggerat[ed] Douglas's needs to a degree not supported by the record"; we interpret
this as a challenge to the court's finding that Douglas "has significant mental, social, and
physical needs, which require full-time, constant parental and professional supervision
and care."
The superior court found the testimony of Douglas's preschool teacher
"particularly convincing," and we defer to the superior court's credibility findings,
108
especially when based on oral testimony.
The teacher testified that Douglas is "an
extremely high-needs child" - "the most needy preschooler in the classroom" - and
that he is "in the one percentile of children with the most extreme difficulties and
challenging behaviors" she had seen in her career. She testified that she never had a
student who presented with such extreme trauma, anxiety, and aggression. She testified
that when she first met Douglas "[h]e had challenges in every area" and needed one-on-
one support throughout each day. Even with several months of improvement he was
"[f]or the school district['s] purposes . . . an intensive-funding student," meaning that he
got "the highest level of supervision." If Douglas returned to her class after spending
time in Texas with no "therapeutic involvement," she expected he would be "starting
back at ground zero with extreme behavior 95% of the time." Given this testimony, we
cannot say it was clearly erroneous for the superior court to find that Douglas had
significant needs requiring full-time care.
108 Regina C. v. Michael C. , 440 P.3d 199, 207 (Alaska 2019); accord In re
Hospitalization of Luciano G. , 450 P.3d 1258, 1264 n.22 (Alaska 2019).
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Second, OCS argues that "the superior court clearly erred in finding that
Cassidy is not capable of meeting Douglas's mental health and physical needs." Cassidy
denied knowledge of the significant physical challenges, developmental delays, and
emotional attachment issues identified by Douglas's professional care providers, or at
least minimized their extent. She testified that she was only then beginning to read
online about Douglas's challenges and had not sought advice from his foster parents or
his care providers. The court noted that Cassidy's characterization of Douglas's
challenges was in sharp contrast to that of the other adults in his life.
Douglas's preschool teacher and occupational therapist both expressed
concerns about Cassidy's ability to care for Douglas. The teacher doubted that Cassidy
had the skill set or physical ability to handle him. And the court noted the occupational
therapist's testimony that Cassidy acted "contrary to therapeutic goals" even while under
observation during a therapy session. Given all of the testimony - which was largely
consistent when addressing either Douglas's challenges or Cassidy's ability to cope with
them - we are not left with a definite and firm conviction that the court made a mistake
in its assessment of Cassidy's capabilities, and we see no clear error.
OCS also disputes the superior court's finding that OCS disregarded
"highly important" information relevant to theproposed placement. Thecourt found that
while relying heavily on the Texas ICPC study, which failed to take into account
Douglas's specialneeds,OCSdisregarded"highlyimportantadditional information from
[Douglas]'s care providers that [bore] directly upon his needs." The court noted that
those "care providers . . . documented serious developmental concerns" about Douglas
and relayed their "profound apprehensions" about removing himfromthe foster parents'
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109
care. The court also found that OCS did not give real consideration to the reported
problems Douglas was having with his transition to Cassidy's care. The evidence was
sufficient to support a conclusion that the professional caregivers' perpectives were
highly relevant and that OCS failed to give them due weight in its placement decision.
This finding is not clearly erroneous.
2. The superior court did not err by finding that OCS abused its
discretion in its placement decision.
Because we uphold the superior court's factual findings, we consider de
novo whether those factual findings demonstrate that OCS abused its discretion in its
110
placement decision.
As the superior court appropriately emphasized, OCS is afforded
an extremely high degree of discretion. However, given the superior court's factual
findings, we must agree with its further conclusion that OCS abused its discretion in its
placement decision.
The superior court found that Douglas had "significant mental, social, and
physical needs, which require full-time, constant parental and professional supervision
and care." It also found that Cassidy did "not have an appropriate understanding of
[Douglas]'s challenges." It found further that OCS "ignored . . . highly important
109 OCS argues that the court erred when it relied on the testimony of
Douglas's pediatrician, teacher, and physical therapist "to show that OCS disregarded
information available to it in deciding to place Douglas with Cassidy" because these
individuals submitted information to OCS after OCS had already made the decision to
place Douglas with Cassidy, and their input therefore could not have affected the
decision. We find this argument unpersuasive. There is no question that OCS could
consider additional information bearing on the child's best interests as it came in,
especially if it showed that a decision already made should be reconsidered.
110 We have previously stated that we review the superior court's finding of
an abuse of discretion for clear error. A.H. v. State , 779 P.2d 1229, 1234 (Alaska 1989).
We clarify now that whether OCS abused its discretion is a mixed question of law and
fact.
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additional information from [Douglas]'s care providers that [bore] directly upon his
needs" and that "OCS'[s] transition plan was not well informed."
OCS notes that it placed Douglas with Cassidy "because she had a positive
ICPC study from Texas, had cared for Douglas for the first 15 months of his life, and
interacted well with Douglas when she was alone with him." But the superior court
found those reasons insufficient. The court found deficiencies in the ICPC study from
Texas because the Texas social worker who created it "was not aware that [Douglas] had
any special needs" and the ICPC study therefore failed to address Cassidy's ability to
raise a special-needs child. The court also found a portion of Cassidy's testimony "to be
entirely unreliable" when she "testified that [Douglas] does not have emotional outbursts
while alone in her care." The court "found it entirely unbelievable, given [Douglas]'s
history and the observations by every adult in [Douglas]'s life with the exception of
[Cassidy], that [Douglas] no longer has outbursts or difficulties while in [Cassidy]'s
care."
We must accept the court's factual findings as true, and the court's factual
findings support the court's conclusion that OCS abused its discretion. We therefore
affirm the superior court's finding.
V. CONCLUSION
We AFFIRM the superior court's order granting the foster parents' motion
to stay OCS's placement proceedings.
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WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.
I respectfully disagree with the court's ruling that a foster parent may
intervene as a party in a child in need of aid (CINA) case. The ruling is inconsistent with
the legislature's CINA statutory framework and the policies underlying the CINA family
reunification goal. And the court's weak assertion that it is condoning intervention in
only the rarest of cases is unpersuasive. Under the court's analysis, intervention requires
no more than a representation that the foster parent has evidence the court would not
otherwise obtain. But that analysis begs the question of a foster parent asserting a
"claim" or "defense" in common with the placement hearing and ignores the foster
parent's existing statutory rights to notice and to be heard at CINA hearings. And the
court's attemptto limit discretionary intervention is flatly contradicted by the very nature
ofdiscretionary interventionand thesubsequent deferential standardofreviewemployed
on appeal.
The real question raised in this appeal is whether a foster parent has the
right to intervene in a CINA case to request a placement review hearing when a child's
removal from the foster parent is contemplated; in my view, the answer is no. It thus was
at least an abuse of discretion, if not legal error, to allow the foster parents in this CINA
case to intervene as a party to request such a hearing.
Brief Factual Orientation
A child was removed from his family and placed with foster parents in
2017. OCS later determined he should be placed with an extended-family member in
accordance with a statutory placement preference, but in early December 2018 the foster
parents responded by moving to intervene in the CINA proceedings. The foster parents
sought an order staying OCS's placement decision and making them the child's
permanent placement , contending that theyproposed "tosubmit evidencedemonstrating
that [the child's] best interests will be far better realized if allowed to remain with the
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[foster parents]; the only family he has known for the last 16 months to which he has now
1
fully bonded." (Emphasis in original.)
This was treated, in effect, as a motion for a
2
placement review hearing.
Thesuperiorcourtgranted thefoster parents' interventionmotion, allowing
3 The court
intervention "in any placement review hearing regarding [the child]."
reasoned that because the foster parents were a "pre-adoptive foster placement," their
opposition to the placement change "share[d] the same questions of law and fact as the
underlying CINA proceeding, what is in the child's best interest."4
In late December 2018 and early January 2019, the superior court held the
placement review hearing and granted the foster parents relief; the court rejected OCS's
decision to place the child with the extended-family member. In mid-January -
1 The court focuses on the foster parents' intervention to contest OCS's
placement decision to move the child from the foster parents to an extended-family
member. Op. at 21. But the foster parents' intervention motion was not so limited. As
made clear by the foster parents' litigation of the case, they sought intervention to
prevent OCS fromremoving the child fromtheir home, prevent family reunification, and
adopt the child.
2 See AS 47.10.080(s) ("The department may transfer a child, in the child's
best interests, from one placement setting to another . . . . A party opposed to the
proposed transfer may request a hearing and must 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.").
3 Although the court acknowledges that the superior court's order was
"clearly overbroad" and that foster parents' intervention should be limited to "specific
upcoming proceedings," the court inexplicably does not vacate the intervention order's
"clearly overbroad" portion. Op. at 17-18, n.29.
4 See Alaska R. Civ. P. 24(b) (authorizing discretionary intervention when
intervener has "claim or defense" having "a question of law or fact in common" with
action).
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although parental rights had not been terminated - the foster parents petitioned to adopt
the child. The superior court's written order for the placement decision was issued later
that month.
Recent Statutory Developments
5
Responding to a decision by this court,
in 2016 the legislature enacted
6
statutes regarding an adoption petition (or its proxy) for a child in state CINA custody.
7
As of 2017 such matters are heard as part of the CINA proceedings. But the law is clear
that a person who files an adoption petition or proxy "does not become a party to the
8
[CINA] proceedings." Notwithstanding the obvious implication from the legislature's
actions that individuals having an interest adverse to the CINA statutes' family
reunification policies should not be parties to a CINA proceeding, in this case the foster
parents were allowed to intervene as parties when they were seeking to adopt the child.
In contravention of the statute, they remained parties even after they formally petitioned
to adopt the child.
Preexisting Statutory Framework
A thorough review of the preexisting statutory framework for foster
parents' involvementin CINAcases similarlysupports theconclusion that thelegislature
did not intend for foster parents to become parties to a CINA case. If a child already is
5 See Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Office
of Children's Servs. , 334 P.3d 165, 172 (Alaska 2014) (holding that in CINA case
covered by Indian Child Welfare Act (ICWA) court must "bar from consideration as an
adoptive placement an individual who has taken no formal step to adopt the child").
6 Ch. 6, § 9, 4SSLA 2016. See also 2015 House Journal 975 (setting out in
transmittal letter governor's rationale for proposed legislation).
7 AS 47.10.111(a); ch. 6, § 18, 4SSLA 2016 (stating effective date).
8 AS 47.10.111(d).
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----------------------- Page 43-----------------------
in a foster family placement, foster parents, like grandparents, must be given notice of
a petition to place the child under the court's CINA jurisdiction. 9 Notice of a removal
petition hearing also must be given to foster parents, like grandparents, and they are
10 Foster parents are entitled to notice and a right to
entitled to be heard at the hearing.
9 AS 47.10.030(b) ("In all cases under this chapter, the child, eachparent, the
tribe, foster parent or other out-of-home care provider , guardian, and guardian ad litem
of the child and, subject to (d) and (e) of this section, each grandparent of the child shall
be given notice adequate to give actual notice of the proceedings and the possibility of
termination of parental rights and responsibilities . . . ." (emphases added)).
Alaska Statute 47.10.990(25) defines an "out-of-home care provider" to
mean "a foster parent or relative other than a parent with whom the child is placed." The
statute does not define "foster parent," but AS 47.10.990(12) defines "foster care" as
"care provided by a person or household under a foster home license."
10 AS 47.10.070(a) ("The court shall give notice of the hearing to the
department . . . . The department shall send notice of the hearing to the persons for whom
notice is required under AS 47.10.030(b) and to each grandparent of the child entitled
to notice under AS 47.10.030(d). The department and the persons to whom the
department must send notice of the hearing are entitled to be heard at the hearing."
(emphases added)).
The remainder of AS 47.10.070 relates to subsequent hearings;
subsection (e), providing that "grandparents" and "out-of-home care givers" may attend
otherwise closed hearings, expressly contemplates that these individuals might testify at
hearings. AS 47.10.070(e) ("The grandparents of the child and an out-of-home care
provider may attend hearings that are otherwise closed to the public under (c) of this
section. However, the court shall limit the presence of these persons in a hearing closed
to the public to the time during which the person's testimony is being given if the court
determines that the limitation is necessary under (c)(3) of this section." (emphasis
added)).
CINA Rule 3, regarding hearings, dovetails with AS 47.10.070(a).
Rule 3(a) provides: "Notice of each hearing must be given to all parties and any foster
parent or other out-of-home care provider . . . ." Rule 3(c) provides that a "grandparent
. . . and the out-of-home care provider are entitled to be heard at any hearing at which the
(continued...)
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----------------------- Page 44-----------------------
11 12
be heard at an initial permanency hearing and at subsequent permanency hearings.
But only a limited group - not including foster parents or even grandparents - may
13
request a permanency hearing.
OCS may transfer a child from one placement to another if it is in the
14 but, for non-emergency transfers, OCSis required to giveadvance
child'sbest interests,
10 (...continued)
person is present."
11 AS 47.10.080( l) ("Within 12 months after the date a child enters foster care
as calculated under AS 47.10.088(f), the court shall hold a permanency hearing. The
hearing and permanent plan developed in the hearing are governed by the following
provisions: (1) the persons entitled to be heard under AS 47.10.070 or under (f) of this
section are also entitled to be heard at the hearing held under this subsection; . . . ."
(emphases added)).
12 AS 47.10.080(f) ("The persons entitled to notice under AS 47.10.030(b)
and the grandparents entitled to notice under AS 47.10.030(d) are entitled to notice of
a permanency hearing under this subsection and are also entitled to be heard at the
hearing."). CINARule17.2(b), regarding permanency hearings,providesthatOCSshall
"notify the foster parent or other out-of-home care provider of the time set for the hearing
and the right to participate in the hearing."
13 AS 47.10.080(f) ("[OCS], the child, and the child's parents, guardian, and
guardian ad litem are entitled, when good cause is shown, to a permanency hearing on
application.").
14 AS 47.10.080(s) ("The department may transfer a child, in the child's best
interests, from one placement setting to another, and the child, the child's parents or
guardian, the child's foster parents or out-of-home caregiver, the child's guardian ad
litem, the child's attorney, and the child's tribe are entitled to advance notice of a
nonemergency transfer. A party opposed to the proposed transfer may request a hearing
and must 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." (emphasis added).
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----------------------- Page 45-----------------------
15
notice to, among others, "the child's foster parents or out-of-home caregiver." The
governing statute also provides: "A party opposed to the proposed transfer may request
a hearing and must prove by clear and convincing evidence that the transfer would be
16 CINA
contrary to the best interests of the child for the court to deny the transfer."
Rule 19.1(b) similarly provides that "a party who is opposed to" a placement transfer
"may move the court for a review hearing."
The CINA statutes do not define "party." But the CINA rules do: " 'Party'
means the child, the parents, the guardian, the guardian ad litem, the Department, an
Indian custodian who has intervened, an Indian child's tribe which has intervened, and
any other person who has been allowed to intervene by the court."17 Neither a
grandparent nor a foster parent is included in the definition of "party"; neither the statute
nor the rule expressly mentions foster parents as people who may oppose a placement
transfer.
But AS 47.14.100 is instructive; subsection (e) sets out placement
preference priority for children removed from a parent's home, and subsection (m)
provides that an adult family member - including a grandparent18 - who is denied
15 Id. ; see also Paula E. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 276 P.3d 422, 431 (Alaska 2012) ("Alaska Statute 47.10.080(s)
provides that foster parents are entitled to notice of non-emergency transfers of children
for whom they are caring . . . .").
16 AS 47.10.080(s).
17 CINA Rule 2(l); cf. 25 U.S.C. § 1911(c) (2018) ("In any State court
proceeding for the foster care placement of, or termination of parental rights to, an Indian
child, the Indian custodian of the child and the Indian child's tribe shall have a right to
intervene at any point in the proceeding.").
18 AS 47.10.990(1)(A) defines "adult family member" as "a person who is 18
(continued...)
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----------------------- Page 46-----------------------
placement is entitled to notice of the denial reasons and the right to request a review
19
hearing, but not to appointed counsel for such a hearing.
And CINA Rule 19.1(e)
similarly provides that an adult family member or family friend who has been denied
placement mayrequest aplacement reviewhearing withoutbeing "required to intervene"
in theproceeding; inthatcontext theadult family member or family friend's participation
in the case is limited to being a "participant in the hearing concerning the denial of
20 No similar provision exists for a foster parent denied placement or from
placement."
whom a placement transfer is proposed.
Where does all this lead, in my view? A foster parent may participate in
many aspects of a CINA case, but not as a party. The statutory framework is designed
specifically to not allow a foster parent to become a party to CINA proceedings. Why
would a foster parent generally be able to intervene as a party in CINA proceedings
when by statute a foster parent filing an adoption petition specifically is denied party
21 And it seems particularly noteworthy that the legislature took care to give the
status?
18 (...continued)
years of age or older" and "related to the child" in specified ways, including, among
others, a "grandparent."
19 See Irma E. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 312 P.3d 850, 853-54 (Alaska 2013) (discussing history of AS 47.14.100(m) and
concluding it required that grandmother denied placement had right to placement review
hearing); Paula E., 276 P.3d at 431 ("AS 47.14.100(m) provides that grandparents are
entitled to notice of the right to appeal an OCS decision not to place a child with them.").
20 CINA Rule 19.1(e). See also Paula E., 276 P.3d at 428 (noting, in passing,
that grandmother's tribe attempted to intervene in CINA case but was granted only
"participant" status by trial court).
21 This should dispense with the notion that the foster parents had some sort
of weightier standing because they were a potential adoptive placement or because they
(continued...)
-46- 7489
----------------------- Page 47-----------------------
right of judicial review to a grandparent who has been denied placement - as a
participant but not as a party to the CINA proceedings - but took no similar action for
foster parents losing a placement due to OCS's authority to make placement transfers.
Intervention Under Alaska Civil Rule 24
With this in mind, foster parent intervention under Alaska Civil Rule 24
makes no sense. First, Rule 24(a)'s intervention of right requires the proposed intervener
to claim "an interest relating to the property or transaction which is the subject of the
action" and to be situated such that lack of party status will "as a practical matter impair
or impede" the proposed intervener's ability to protect its interests. Foster parents do not
have a property or other legally protected interest in a child under state custody in a
CINA case. They may have a general interest in a child's best interests - or perhaps a
general interest in stopping family reunification if they wish to adopt a child - but this
is insufficient for intervention as a right. And although foster parents may have
contractual or financial relationships with OCS, administrative avenues for resolving
contractual disputes preclude the need for litigating them in the CINA proceedings. 22
21 (...continued)
petitioned to adopt. We rejected this argument in Dara S. v. State, Department of Health
&Social Services, Office of Children's Services, 426 P.3d 975, 999 (Alaska 2018), when
we held that " 'permanent,' 'pre-adoptive,' or 'adoptive' " were nothing other than
descriptive labels for foster placements.
22 See generally 7 Alaska Administrative Code 53, arts. 1, 3 (providing for
financial reimbursement to foster parents); ALASKA OFFICE OF CHILDREN 'S SERVICES,
HILD PROTECTIVE SERVS. MANUAL § 1.16 (rev. July 1, 2020), http://dhss.alaska.gov/
C
ocs/Documents/Publications/CPSManual/cps-manual.pdf (setting out administrative
appeal process for foster parents' payment and reimbursement disputes). That OCS pays
foster parents to care for a child appears to create a financial incentive for foster parents
to oppose reunification with relatives, creating an additional layer of conflict and
providing yet another reason to not grant foster parents party status.
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----------------------- Page 48-----------------------
Second, Rule 24(b)'s permissive intervention requires that a proposed
intervener's "claim or defense" have a question of fact or law in common with "the main
action." Foster parents have no claim in common with the CINA proceedings; foster
parents are not subject to adverse claims that could give rise to a defense in common with
the CINA proceedings. It is not enough to say that a foster parent in an "adoptive
placement" has a claim in common with the CINA proceedings and that the child's best
23
interests are common to the CINA proceedings and the foster parent's adoption effort.
The legislature already has rejected the common claim notion. And two separate, but not
common, best interests inquiries are obvious in this context: whether it is in the child's
best interests that parental rights be terminated or that the child be placed with a family
member, and whether it is in the child's best interests that instead the child be placed and
ultimately adopted by the foster parents. Turning these two best interests findings into
a comparative analysis of the parents' and foster parents' parenting abilities will lead to
24 a foster parent cannot act as a private attorney general
improper CINA determinations;
seeking to establish that the child's best interests require action designed to interfere with
family placements and family reunification.
23 Cf. Dara S., 426 P.3d at 999 (rejecting notion that " 'permanent,'
'pre-adoptive,' or 'adoptive,' " placement designations have legal meanings beyond
obvious foster parent designation).
24 At the early stages of the CINA proceedings the foster parents will almost
always provide a better home for the child than the parent or parents from whom the
child was recently removed. Allowing foster parents to intervene in the CINA
proceedings before parental rights have been terminated threatens to impose an
additional burden for parents seeking reunification, requiring the court to determine
under whose care the child's full potential is most likely to be met. See In re S.A., 912
P.2d 1235, 1237-38 (Alaska 1996), superseded on other grounds by statute, ch. 99,
§ 1(b)(2)(A), SLA 1998 (rejecting in CINA adjudication context argument that children
would not have sufficient "structure and consistency" allowing them to "meet their
potential" if returned to mother).
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----------------------- Page 49-----------------------
When weighing proposed discretionary intervention, the superior court is
to "consider whether the intervention will unduly delay or prejudice the adjudication of
25 This brings into play the CINA statutes' underlying
the rights of the original parties."
policies: AS 47.10.005 directly indicates the purpose of CINA proceedings by
explaining that CINA statutes "shall be liberally construed to . . . promote the child's
welfare and the parents' participation in the upbringing of the child to the fullest extent
consistent with the child's best interests."
As OCS points out, CINA proceedings are brought to protect a child from
parental harm and to determine the rights of parents to a continued relationship with the
child.26 OCS has a duty to search for appropriate adult family members or family friends
for a child's placement before placement with a foster parent.27 OCS has a duty to make
28 Foster parents have a duty to temporarily care for a child
efforts to reunify the family.
while CINA proceedings are pending.29 Allowing foster parents to intervene as parties
to request placement hearings and challenge OCS's performance of duties - when
neither a parent nor the guardian ad litem challenges OCS's performance - will
prejudice parents' rights in, unduly delay, and unnecessarily expand CINA litigation.
25 Alaska R. Civ. P. 24(b).
26 See AS 47.10.011 (setting out bases for finding that child is a child in need
of aid); AS 47.10.050 (providing for appointment of guardian ad litemto promote child's
welfare); AS 47.10.088 (regarding involuntary termination of parental rights).
27 AS 47.14.100(e).
28 AS 47.10.086 (articulating reasonable efforts requirement); 25 U.S.C.
§ 1912(d) (2018) (articulating activeefforts requirement incases under ICWA, 25 U.S.C.
§§ 1901-1963).
29 AS 47.10.084(d); Osterkamp v. Stiles, 235 P.3d 178, 187 (Alaska 2010)
("A foster parent serves a vital but inherently temporary role in a child's life.").
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This case exemplifies why allowing foster parents to intervene in a CINA
proceeding is inappropriate. OCS provided this court subsequent court filings reflecting
that: (1) OCS later intended to place the child with his mother, but the foster parents
sought a placement review hearing to stay placement with the mother and keep
preferential placement of the child; and (2) the foster parents sought production ofOCS's
and the guardian ad litem's records, including the mother's confidential counseling
records, and to require the mother and the child to undergo physical and mental
30 The court granted the foster parents' discovery motion in part, requiring
examinations.
production of documents for the court's in camera review, although the court denied,
without prejudice to a later motion after the foster parents reviewed discovery responses,
the motion for physical and mental examinations of both the child and the mother. The
foster parents now are prosecuting the CINA case and attempting to terminate the
parents' rights, while OCS is attempting to comply with its family reunification duties.
This is untenable.
Conclusion
Foster parents have the right to notice of CINA case hearings, including
placement review hearings, and the right to appear and be heard. Foster parents have the
right and the ability to present views on the child's best interests in the context of a
motion or hearing at issue. But foster parents have no right to become parties - perhaps
even with court-appointed counsel at public expense - to request a placement review
hearing in a CINA case. The superior court's intervention order should be vacated.
30 Cf. AS 47.10.080(q) (outlining information required to be given to foster
parents).
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