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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Taryn M. v. State of Alaska, Department of Family & Community Services, Office of Children's Services (5/16/2023) sp-7655
Notice: This opinion is subject to correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
TARYN M., )
) Supreme Court No. S-18509
Appellant, )
) Superior Court No. 3AN-19-00236 CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF FAMILY & COMMUNITY ) No. 7655 - May 16, 2023
SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Taryn M., pro se, Anchorage, Appellant.
Jessica M. Alloway, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellee. Laura Hartz, Assistant Public Advocate, and
James Stinson, Public Advocate, Anchorage, for Guardian
Ad Litem.
Before: Maassen, Chief Justice, Carney, Borghesan, and
Henderson, Justices.
CARNEY, Justice.
----------------------- Page 2-----------------------
INTRODUCTION
1
An adult relative of an Indian child in the custody of the Office of
Children's Services (OCS) appeals the denial of her request to have the child placed
with her. Because OCS demonstrated by clear and convincing evidence that the relative
was an unsuitable caretaker, we affirm the superior court.
FACTS AND PROCEEDINGS
A. Facts
2
Marcy P. was born in 20 19; OCS assumed custody shortly after she was
born. Within the year OCS placed Marcy first with a foster family and then with Taryn
M., a distant cousin. OCS determined that Taryn is a preferred placement under the
3
Indian Child Welfare Act (ICWA).
Marcy has a severe congenital disease and required a bone marrow
transplant in June 2021. The operation took place in Seattle, and Marcy remained at
the hospital until January 2022. Taryn travelled to Seattle and remained there until
October, when her family and medical leave expired and her employer refused to allow
4
her to take additional time off.
1
See 25 U.S.C. § 1903(4) (defining "Indian child" as "any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe"). Marcy and Taryn are both members of Alaska Native tribes.
2
We use pseudonyms to protect the family's privacy.
3
25 U.S.C. § 1915(a) -(b) (describing "member[s] of the [Indian] child's
extended family" as preferred placements for adoption and foster care).
4
Marcy's Seattle doctor wrote to Taryn's employer on her behalf, asking
that she be given extended leave to serve as a caregiver for Marcy during the remainder
of her stay.
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----------------------- Page 3-----------------------
OCS initially planned to place Marcy with Taryn after she was medically
cleared to return to Alaska. Due to Marcy's increased risk of infection after the
operation, however, she was unable to attend daycare. Because neither OCS nor Taryn
could find a qualified individual to care for Marcy while Taryn was at work, OCS placed
Marcy in a foster home with medically trained parents upon her return to Alaska instead
of placing her with Taryn . But OCS continued to arrange visits with Tary n, including
arranging hand-offs halfway between the foster home and her home. And OCS
5
continued to consider Taryn a permanent placement for Marcy.
However, after overnight visits that "went badly" and in light of OCS 's
continuing concerns about Taryn, OCS changed course. It decided not to place Marcy
with Taryn permanently and, in May 2022, decided that her permanent placement
would be with the foster home where she had initially been placed when she entered
OCS custody. In response Taryn filed petitions for guardianship or conservatorship of
Marcy, which the su perior court denied as incorrectly filed. The court instead scheduled
6
another placement review hearing to address Taryn's concerns.
5
Taryn requested - and the court held - two placement review hearings
while Marcy was in foster care. The court accepted representations from OCS and the
guardian ad litem that Taryn was Marcy's planned permanent placement, waived the
requirement for a permanency report, and found that ultimately Taryn would be
Marcy's permanent placement.
6
The court did not decide whether Taryn qualified as an "adult family
member," as she asserted, even though it was undisputed that she was Marcy's distant
relative. The court instead found that as a "family friend" she had the same right to
request a review hearing. See 25 U.S.C. § 1903(2) (defining "extended family
member"); AS 47.14.100(m) (describing family member or friend's "right to request a
hearing to review the decision" to deny placement with them); CINA Rule 19.1(e)
(outlining specifics regarding family member or friend's request for hearing).
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----------------------- Page 4-----------------------
B. Placement Review Hearing
The hearing opened with some confusion regarding the burden of proof.
The superior court initially cited AS 47.10.080(s), which requires a party opposing the
transfer of a child to a new placement to prove by clear and convincing evidence t hat
7
the transfer is contrary to the child's best interests . OCS interjected, asserting that
25 U.S.C. § 1915 - ICWA's preferred placement provision - controlled and placed
the burden on OCS to prove by clear and convincing evidence that it had good cause
8
not to place Marcy with Taryn . The court agreed and said it "should have cited both"
statutes.
OCS called the caseworker assigned to Marcy's case. The caseworker
summarized Marcy's history in her current foster home. She testified that Marcy
referred to her current foster mother as "Mom" and "embraced her for quite a long time"
when they were recently reunited. She then described Marcy's "special medical needs" :
she testified that the operation in Seattle had compromised Marcy's immune system
and that "for at least the next six months," Marcy could not be in daycare ; s he also
testified that Marcy follows a "strict medication regimen" to address a variety of
medical needs , including doctor's orders that even a normal fever required that Marcy
be "brought to the hospital immediately" and no "other actions" should be taken ; and
7
See 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 contrary to the best interests of the child for the court to deny the transfer.").
8
See 25 U.S. C. § 1915(a) ("In any adoptive placement of an Indian child
under State law, a preference shall be given, in the absence of good cause to the
contrary, to a placement with . . . a member of the child's extended family"). Good
cause must be shown by clear and convincing evidence. See Native Vill. of Tununak v.
State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. (Tununak I), 303 P.3d 431,
446-49 (Alaska 2013), vacated in part , 334 P.3d 165, 167 -68 (Alaska 2014) (holding
that ICWA preference no longer applied to appellant in light of United States Supreme
Court decision but not otherwise "disturb[ing] our decision in Tununak I").
-4- 7655
----------------------- Page 5-----------------------
she stated that Marcy was currently "doing very well" and that her care required
significant coordination and collaboration with a range of providers.
The caseworker then testified about OCS's history with Taryn. Taryn had
travelled to Seattle in July 2021 with Marcy and remained there during and after the
transplant. According to the caseworker, Taryn had been told about Marcy's "long term
medical care and certain restrictions, and the severity of not only her illness but what
she would be going through." The caseworker testified that Taryn had indicated she
understood those requirements.
Taryn left Seattle in October after her family and medical leave expired
and her employer refused to allow her to take additional leave . The caseworker testified
that Taryn gave the hospital - but not OCS - notice of her departure, and as a result,
OCS had only three days to find another adult to care for Marcy. Because Marcy was
no longer in the hospital, OCS had to find a series of foster parents to care for her . OCS,
the hospital, and Marcy's caregivers had agreed to provide Taryn with updates, but
there were difficulties with the timing and frequency of the updates. The caseworker
testified that Taryn was not "respectful or communicating with them in a healthy
manner that was conducive to a positive working relationship."
The caseworker testified that OCS worked with Taryn to ensure that she
could continue to visit Marcy in Seattle . But she described an incident in which Taryn
was told not to visit on a specific weekend because one of Marcy's caregivers would be
receiving train ing about how to care for Marcy. Taryn nevertheless travelled to Seattle,
causing "a disruption" to the training because the hospital's COVID policie s restricted
the number of people that could be with Marcy.
The caseworker testified that when Marcy was able to return to Alaska,
OCS worked with Taryn to accompany Marcy back. Taryn, however, did not fly to
Seattle. Shortly before she was scheduled to leave Ala ska, Taryn advised OCS that she
did not think it was appropriate to put Marcy on a commercial flight . The caseworker
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----------------------- Page 6-----------------------
testified that Taryn also stated she was concerned Marcy did not have appropriate winter
clothes. According to the caseworker, OCS had already addressed these concerns and
made Taryn aware of this. The caseworker testified that because Taryn did not fly to
Seattle, OCS had to find another escort for Marcy at the last minute.
The caseworker testified that OCS continued to try to place Marcy with
Taryn despite these conflicts. But because Marcy could not be in group setting s and
Taryn had to work during the day, another caregiver was needed for Marcy while Taryn
worked. The caseworker testified that OCS was unable to locate s omeone to care for
Marcy during the day and Taryn's "go-to" support, her sister, was unavailable because
of recent surgery . She stated that OCS therefore placed Marcy in a foster home instead
of with Taryn.
During this time OCS sought to facilitate visitation b etween Marcy and
Taryn, even though the foster parents and Taryn lived in different communities . After
visits Taryn reported concerns about Marcy's clothing, her exposure to the foster
home's dog, the appropriateness of supplies for her care, and injuries that Marcy
suffered. The caseworker testified that OCS did not share her concerns and that Taryn
did not substantiate them.
The caseworker then described a series of "concerning" incidents
connected to an overnight v isit in April 2022 . She testified that after the visit, Taryn
did not return Marcy to the foster home and "stated that she would not be returning
her." The caseworker stated that Taryn did not give OCS an opportunity to adjust the
plan for her return to the foster home or provide additional daily medications that Marcy
needed. The caseworker acknowledged that Taryn did bring Marcy to a medical
appointment scheduled the next day, but the medical staff expressed concerns about
Marcy's condition and Taryn's impatience and roughness with her. And the caseworker
testified that after Taryn returned Marcy to the foster parent, the foster parent reported
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----------------------- Page 7-----------------------
that Taryn had taken Marcy to church and treated "a slight fever" with Tylenol, both of
9
which were against me dical directions.
The caseworker testified that she attempted to talk to Taryn about these
concerns, but Taryn "was not receptive," "not willing to engage in ongoing
communications," and "dismissive of the concerns." The caseworker then offered
Taryn a psychological assessment, which upset Taryn. There is scant evidence
explaining why the caseworker suddenly suggested an assessment. According to the
caseworker, the April visit was the last contact between Taryn and Marcy due to
"communication issues" between Taryn and Marcy's foster parents.
Finally, the caseworker testified that she was not aware of any changes in
OCS's concerns about placing Marcy with Taryn and noted OCS's concern about
Taryn's "ability to meet [ Marcy's] needs once OCS [i]s no l onger involved." She stated
that "[i]t is not uncommon for a child that has had a bone marrow transplant to need
additional services" that are not available in Alaska. She suggested that Taryn's
previous inability to extend her leave or secure "necessary supports" like alternative
caregivers showed she would not be able to support Marcy if she needed more
treatment.
Taryn testified on her own behalf. She began by emphasizing her love for
Marcy; her qualifications - including a degree in healthcare administration and
employment at a hospital - and positive qualities; her support of Marcy while she was
in Seattle for the transplant ; and the importance of keeping Marcy connected to her
Iñupiaq heritage. She disagreed with the caseworker , testifying that there was only one
other child at the church event to which she took Marcy and that Marcy had a bruise
that she suffered while with her current foster family . Taryn stated that she would be
9
Taryn disagreed with the caseworker's account during the caseworker's
testimony, during her own testimony, in her briefing on appeal, and at oral argument
before us.
-7- 7655
----------------------- Page 8-----------------------
able to care for Marcy, noting that her sister was "getting stronger" and that she had "a
person in mind" for daycare. She testified that she had n ever "tr [ied] to hurt [ Marcy]
or harm her." After she expressed interest in calling her sister to testify, the court
offered to continue the hearing another day, but Taryn ultimately declined.
Both parties made closing arguments after Taryn testified. OCS first
stated that it "appreciate[s] [Taryn] and the things that she has done," adding that "[n]o
one is disputing her feelings for [Marcy] and it's fantastic that she is such a support for
her." But in OCS's opinion, Taryn demonstrated "extremely concerning" behavior and
as a result OCS feared she would not follow Marcy's treatment plan or meet her medical
needs. OCS also expressed "concern about whether or not [Taryn] is willing to
participate and cooperate with " it and suggested, with little support , that Taryn had
mental health issues that she was "not interested in addressing . . . at all."
In her closing Taryn stated that she was unable to accompany Marcy back
from Seattle because of an issue with her ticket that was out of her control. She
disagreed that there were any problems with her communication with Marcy's doctors
and other professionals, stating that she did not receive the promised updates and that
she had to send messages after work hours because " [t]his wasn't a 9:00 to 5:00
situation [Marcy] was under." She asserted that she gave OCS "at least 10 days" notice
before she left Seattle at the end of her leave time. Taryn emphasized that OCS had not
provided respite daycare for Marcy while Taryn worked and reemphasized that she had
taken care of Marcy during her recovery. Taryn pointed out that she helped one foster
parent persuade Marcy to take her medication.
The guardian ad litem (GAL) "agree[d] with OCS's decision," pointing to
"concerns raised by . . . health care providers" about Taryn. He called OCS's choice
"reasonable" and "probably the only prudent or responsible choice." But he advocated
for continued contact with Taryn, who he said was "a part of Marcy's life," "has
-8- 7655
----------------------- Page 9-----------------------
sacrificed for her," and is "connected" to her. In response OCS added that it was "not
opposed to visitation."
The court rul ed in favor of OCS. The court first agreed that OCS " should
work with [Taryn] for visitation," because "[s]he's family" and "obviously has great
affection and love for the child." But the court also agreed with OCS's decision. It
listed its own concerns - Taryn's taking Marcy to church, her treatment of the fever,
her sudden departure from Seattle, and her inability to provide Marcy with appropriate
daycare. And the court recognized that "OCS has got a fair bit of discretion." It
concluded that OCS's placement was not "unreasona ble" because Taryn "did not seem
to act appropriately" or "hav[e] an understanding about the child's full needs." It
declined to "overrule . . . OCS's decision on placement," finding that Taryn did not
"establish[] any clear and convincing evidence to ove rturn what OCS did or even vice -
versa." The court ended by acknowledging the materials Taryn had filed with the court
about the importance of Marcy's culture and again encouraged OCS to work with her
to arrange visits.
C. Subsequent Proceedings
At a status hearing for Marcy the next month , OCS described "really good
news" regarding Marcy's improving health. It also advised the court that there was an
adoption home study in progress for the foster family. The court advised the parties
that Taryn had filed documents with the court accusing OCS of "stonewalling her"
about arranging visits . OCS responded that it not heard anything from Taryn about
visitation. Taryn interjected and dis agreed. She also stated that OCS had tried to place
other Native children with her, describing it as an attempt "to trade [Marcy]." She
reiterated that she was a preferred placement for Marcy and attempted to give the court
traditional clothing for Marcy. The court advised her that it was "not the time nor the
place . . . to advocate reconsideration" of Marcy's placement. It also advised Taryn that
even though the deadline for her to file an appeal of the placement decision had passed,
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----------------------- Page 10-----------------------
under the circumstances "[m]aybe the Supreme Court would still accept [her] appeal."
Taryn subsequently filed an appeal, which we accepted.
STANDARD OF REVIEW
We review factual findings for clear error.10
Whether those factual
findings "comply with ICWA requirements is a question of law" to which we apply our
11
independent judgment. Whether the correct legal standard was applied is also a
12
question of law to which we apply our independent judgment.
DISCUSSION
Taryn represents herself; we therefore hold her pleadings "to less stringent
13
standards than those of l awyers." "But this relaxed standard has limits; for example,
'even when a [self-represented] litigant is involved, an argument is considered waived
when the party cites no authority and fails to provide a legal theory for his or her
14
argument.' "
Taryn first argues that she is a preferred placement according to ICWA
and emphasizes ICWA's important policy goals. Because no one has disputed that
Taryn is a preferred placement, OCS was required to demonstrate good cause for its
15
decision not to place Marcy with her. But OCS and the GAL correctly observe that
10
Jude M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
394 P.3d 543, 550 (Alaska 2017).
11
State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Michelle P. ,
411 P.3d 576, 582 (Alaska 2018).
12
Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017).
13
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
14
Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007)
(quoting Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004)).
15
25 U.S.C. § 1915; Paula E. v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 276 P.3d 422, 438 (Alaska 2012).
-10- 7655
----------------------- Page 11-----------------------
16
the good cause inquiry only arises if a "suitable caretaker" exists. They argue that
Taryn is not suitable. We are therefore presented with two threshold questions : (1)
whether the superior court applied the correct standard when making its suitability
17
determination; and (2) whether Taryn was a suitable caretaker under ICWA.
A. The Superior Court Applied The Incorrect Standard, But The Error
Was Harmless.
Both OCS and the GAL recognize that the superior court "could have been
clearer" and "was regrettably inarticulate" when discussing the burden of proof for the
placement review hearing. But OCS argues that the court expressly found that OCS
16
See Tununak I, 303 P.3d 43 1, at 450 (Alaska 2013).
17
Taryn makes several other arguments. We do not agree that she should
be considered an "Indian custodian." No evidence was presented to the superior court
that she had legal custody of Marcy as provided by ICWA. See 25 U.S.C. § 1903(6).
Because Taryn was neither Marcy's parent nor Indian custodian, OCS was not required
to make "active efforts" to keep Marcy with her, as she argues. See 25 U.S.C. § 1912(d).
Taryn also argues that Marcy's First Amendment right to learn about
Iñupiaq culture has been violated. But although both state and federal law encourage
maintaining a child's connection with her culture, Taryn does not have standing to argue
for Marcy's constitutional rights. See Keller v. French , 205 P.3d 299, 304 (Alaska
2001) (noting that third parties generally do not have standing to assert another's
constitutional rights). But see Bonjour v. Bonjour , 592 P.2d 1233, 1241 n.15 (Alaska
1979) (noting exception for parents asserting constitutional rights of children).
Finally, we do not reach Taryn's argument that she is "an adult family
member" under AS 47.14.100(m). The superior court addressed that issue at the start
of the placement review hearing because it needed to determine whether she was a
preferred placement and whether she was entitled to request a review hearing. The
court declined to decide the issue, noting first that "it is the Tribe's customs that ideally
govern this determination" and that considering her "a family friend" under the statute
entitled her to request the review. We recognize that the legal term "family friend" does
not reflect Taryn and Marcy's relationship as family members; but that designation
provided Taryn the same rights as "an adult family member." The issue is therefore
moot.
-11- 7655
----------------------- Page 12-----------------------
met its burden and that , even though the cou rt incorrectly stated that Taryn had failed
to carry her burden "to overturn what OCS did ," it did not abuse its discretion . The
GAL argues that any error was harmless, pointing to OCS's conduct in correcting the
court and evidence in the record suggestin g that OCS met its burden. We agree with
the GAL.
ICWA's preferred placement provision - 25 U.S.C. § 1915 - places the
burden of proving good cause to deviate from a preferred placement on OCS , which
18
must establish good cause by clear and convincing evidence. We have not previously
determined whether the same burden and standard s apply to "the issue of the suitability
19
of preferred placements," and have acknowledged that th ey may be, but do not have
20
to be , the same. In an unpublished decision, Kelly C., we affirmed a superior court's
decision to place the burden on OCS to show unsuitability by clear and convincing
21
evidence. We now adopt this approach: when the suitability of a p referred placement
under ICWA is in question, OCS must prove the placement's unsuitability by clear and
convincing evidence.
18
25 U.S.C. § 1915; Paula E., 276 P.3d at 438.
19
In re Adoption of Sara J. , 123 P.3d 1017, 1023 (Alaska 2005).
20
Compare Tununak I, 303 P.3d at 450 n.94 (declining to decide standard
of proof but "discern[ing] no principled basis for adopting inconsistent standards") with
Sara J. , 123 P.3d at 1023 ("It is not plain from the language of the statute that standards
applicable to the issue of the suitability of preferred placements must necessarily also
apply to the issue of good cause. Rather, accepted principles of statutory interpretation
suggest that the opposite is true.").
21
See Kelly C. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
No. S-15923, 2016 WL 281055, at *4, *7 & n.31 (Alaska Jan. 20, 2016) (noting that
application of "clear and convincing" standard is "[c]onsistent with our decision in
Tununak I").
-12- 7655
----------------------- Page 13-----------------------
OCS expressly, consistently, and voluntarily assumed this burden at the
placement review hearing. OCS specifically referred the superior court's attention to
25 U.S.C. § 1915 and in its closing argument again asked the court to find that it had
met its burden under that statute . But despite agreeing with OCS that 25 U.S.C. § 1915
applied, the court continued to place the burden on Taryn. The superior court told Taryn
explicitly that she was required to "show [the court] that . . . [OCS has] made a mistake
here." And it declined to "overrule . . . OCS's decision" because Taryn had not
22
"established a ny clear and convincing evidence to overturn what OCS did." At a
subsequent status hearing, the court reiterated that it had declined to overturn a
discretionary OCS decision "that [it] thought had a reasonable basis." It was legal error
to place the burden on Taryn to "overturn" OCS's placement decision .
Although it was error to assign a burden to Taryn, "[w]e must disregard
harmless errors that have no substantial effect on the rights of parties or on the outcome
23
of the case." We therefore review the record to determine whether OCS presented
clear and convincing evidence to the superior court demonstrating that Taryn was not a
suitable caretaker.
22
The superior court added "or even vice -versa," which OCS argues is a
sign that the court also imposed a burden on OCS. But this strained reading of an
already incorrect statement is not sufficient to overcome the legal error raised by the
court's other statements.
23
Amy S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 440
P.3d 273, 279 ( Alaska 2019) (alteration in original) (quot ing Luther v. Lander , 373 P.3d
495, 499 (Alaska 2016)); see also Alaska R. Civ. P. 61 ("The court . . . must disregard
any error or defect in the proceeding which does not affect the substantial rights of the
parties."); CINA Rule 1(e) (applying Civil Rule 61 to CINA proceedings).
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----------------------- Page 14-----------------------
B. There Was Clear And Convincing Evidence That Taryn Was Not A
Suitable Caretaker.
OCS and the GAL a rgue that Taryn is unsuitable because she is either
unable or unwilling to care for Marcy's special medical needs. These are in fact two
24
separate arguments, and we are not persuaded that Taryn is unable to care for Marcy.
But because the record before the superior court indicated that Taryn was unwilling to
abide by Marcy's treatment plans , we agree with the superior court's conclusion that
25
Taryn was not a suitable caretaker.
"[B]efore determining whether good cause exists to deviate from the
placement preferences, a court must first inquire as to whether any suitable preferred
placements exist . . . . In other words, the court must determine not only that a
24
Although there was testimony that Marcy did have a follow -up visit to
Seattle, there is nothing in the record indicating how long the visit lasted or whether
Taryn could have gone. Taryn testified that she would be able to tak e the necessary
leave, that her sister's health was improving to where she could presumably serve as
support, and that she had someone "in mind" for daycare. OCS's unsupported
assertions about Taryn's availability and mental health do not establish by cle ar and
convincing evidence that she is unable to care for Marcy.
25
Cf. Shirley M. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 342 P.3d 1233 , 1245 (Alaska 2015) (finding good cause where relative "did not
recognize the extent of [the child's] special needs" and seemed unlikely to meet child's
high needs); Burke P. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
162 P.3d 1239, 1245 (Alaska 2007) (upholding termination of parental rights where
parent "was either unwilli ng or unable to realize that his behavior adversely impacted
his children" and took no responsibility for negative impacts); Brynna B. v. State, Dep't
of Health & Soc. Servs., Div. of Fam. & Youth Servs. , 88 P.3d 527, 531 (Alaska 2004)
(finding that relati ve's "unwillingness to cooperate with [OCS]" supported finding of
likely future harm and noting that "denying child placement with a relative requires the
same 'clear and convincing evidence' as the termination of parental rights"); Kelly C.,
2016 WL 28105 5, at *7 (finding that relatives were unsuitable in part because of failure
to address child's "extensive medical needs").
-14- 7655
----------------------- Page 15-----------------------
placement is preferred, but also that the placement would be a suitable caretaker for the
26
child." These inquiries "often overlap and can rarely be considered independent of
27
one another," but they are still "separate." While we have not "detail[ed] the factors
a court may consider in its suitability analysis," we have suggested that "a potential
placement's age, . . . inability to suggest a person who could care for the child if [the
potential placement ] became incapacitated, . . . criminal history, . . . health, and . . . lack
28
of a support system" are relevant. Suitability is considered "in light of the prevailing
29
social and cultural standards of the Indian community."
Our previous cases do not make clear whether suitability is a factual
finding, a discretionary determination, or a legal question. In Kelly C. we treated clear
30
and convincing evidence of suitability as a factual finding reviewed for clear error.
But the logic of Tununak I suggests that clear and convincing evidence of suitability
could, like good cause, be a discretionary determination reviewed for abuse of
31
discretion. And when reviewing comparable determinations requiring clear and
26
Tununak I, 303 P.3d 431, 450 (Alaska 2013).
27
Id. at 450-51.
28
Id. at 451.
29
Id. at 453.
30
See Kelly C. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
No. S-15923, 2016 WL 281055, at *6 (Alaska Jan. 20, 2016).
31
Tununak I, 303 P.3d at 440, 447.
Our standard of review for whether good cause exists under state law,
rather than ICWA, is "unsettled." Celia W. v. State, Dep't of Health & Soc. Servs., Off.
of Child.'s Servs., No. S-17954, 2021 WL 4191436, at *3 (Alaska Sept. 15, 2021). In
unpublished decisions we have declined to decide the issue but acknowledged that the
determination may be reviewed for abuse of discretion or treated as a mixed question
of fact and law. See id.; Rose D. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., No. S-17569, 2020 WL 3830597, at *6 & n.17 (Alaska July 8, 2020).
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convincing evidence we have suggested that clear and convincing evidence in those
32
matters is a legal question to which we apply our independent judgment.
We need not decide the precise nature of the suitability finding or, in turn,
which standard of review applies here. Given the evidence presented and the judge's
factual findings, which are not clearly erroneous, the only tenable outcome was to
determine that Taryn was unsuitable. On this record it would be clear error or abuse of
discretion to rule that a person who is unwilling to abide by medical providers'
recommendations for such a medically fragile child is suitable. Because the factual
findings can support only one conclusion, we affirm the superior court's decision.
OCS presented evidence of several examples of Taryn's seeming
unwillingness to recognize or meet Marcy's special medical needs. The caseworker's
uncontradicted testimony was that Taryn understood that even a minor fever required
Marcy to go to the emergency room for treatment and that no other treatment was
32
We have held, for example, that in the context of involuntary medical
treatment for mental illness, the clear and convincing evidence burden applies to the
ultimate legal determination rather than to findings of historical fact, which are
reviewed for clear error in the normal fashion. See In re Hospitalization of Lucy G. ,
448 P.3d 868, 876 -78 (Alaska 2019).
We have also held that third parties seeking visitation against parental
wishes must prove by clear and convincing evidence that it is detrimental to the child
to limit visitation to what the parents will allow. See Christy v. Conrad, 524 P.3d 231,
235, 237-38 (Alaska 2022). In such cases the underlying findings of fact are reviewed
for clear error but the question whether there was clear and convincing evidence of
detriment is seemingly a legal one. See id.
Finally, we have treated compliance with other ICWA requirements -
like the requirement that OCS engage in "active efforts" and the requirement that courts
find a child is likely to be seriously harmed if returned to their parents - as mixed
questions of fact and law. See E.A. v. State, Div. of Fam. & Youth Servs. , 46 P.3d 986,
989 (Alaska 2002). In those cases we review factual findings for clear error and apply
our independent judgment to legal conclusions. See id.
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allowed. But Taryn gave Marcy Tylenol to treat a fever and did not take her to the
hospital as she had been instructed to do . And according to OCS Taryn also refused to
return Marcy after a visit, without giving notice to OCS and without havin g additional
medication for Marcy.
In her briefing and at oral argument before us, Taryn disputes OCS's
33
accounts of these incidents and offers further explanations for her actions. She says
she "never, ever . . . refuse[d]" to return Ma rcy and would not "jeopardize [their lives]
in such a hideous manner." She explains instead that Marcy's foster mother offered to
let Taryn take Marcy to her medical appointment in the morning, implying that Taryn
34
could keep Marcy an additional night. And she argues that OCS was responsible for
35
the missed hand -off because it did not give her notice of the time. She also stated at
argument before us that she never gave Tylenol to Marcy and that her return visit to
Seattle was only to retrieve her belongings.
But our review is limited to the evidence and arguments presented t o the
36
superior court at the time of the placement review hearing. And at the time of the
33
Taryn also objects to OCS's decision not to provide respite care or enroll
Marcy in daycare. But while OCS may authorize or pay for respite care, it is not
required to do so. See AS 47.14.100(d)(2). And as OCS explained at the placement
review hearing, t he decision not to enroll Marcy in daycare was the result of her special
medical needs.
34
Taryn notes that "there was enough medication" for this brief extension
of the visitation.
35
Taryn notes that the hand -off times were often "one hour or 2 hours o ff"
from when they were scheduled and argues that "[i]t was bizarre that Marcy was even
placed in another city."
36
See Chloe O. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 309 P.3d 850, 856 (Alaska 2013) ("On appeal, we review a trial court's decision
in light of the evidence presented to that court.").
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superior court's decision, the evidence suggested that Taryn was unwilling to abide by
the requirements necessary to care for Marcy's special medical needs. Her
unwillingness to do so was clear and convincing evidence that she was an unsuitable
37
caretaker.
CONCLUSION
We AFFIRM the superior court's decision.
Taryn also raises concerns about the current foster parents and their
attempts to adopt Marcy. But these arguments are beyond the scope of this appeal. Cf.
Clementine F. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 375 P.3d
39, 47 (Alaska 2016) (emphasizing that scope of court's decision was limited to
deciding between parental custody and State custody, not placement of child with
particular parent).
37
Like its discussion of burdens of proof , the superior court's determination
that Taryn was unsuitable was not clearly articulated. It did not specifically make a
"separate" or "distinct" analysis of Taryn's suitability when it considered whether OCS
had good cause to deviate. See Tununak I , 303 P.3d 431, 452 (Alaska 2013). But the
court's statements that Taryn had raised "red flags," "did not seem to act appropriately,"
and did "not ha[ve] an unders tanding about the child's full needs" reflect the court's
analysis of her suitability as a caretaker. Cf. Kelly C. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs. , No. S-15923, 2016 WL 281055, at *6 -7 (Alaska Jan. 20,
2016) (treating find ing that relatives were "unsafe" as finding that they were "unsuitable
or unavailable").
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