| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tara R. v. State of Alaska, DFCS, OCS, State of Alaska, DFCS, OCS v. C.B. & M.B., Dan J. v. State of Alaska, DFCS, OCS (1/12/2024) sp-7680
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
TARA R., )
) Supreme Court Nos. S-18586/18595/
Appellant, ) 18596 (consolidated)
)
v. ) Superior Court No. 3AN-20-00295 CN
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF FAMILY & COMMUNITY )
SERVICES, OFFICE OF ) No. 7680 - January 12, 2024
CHILDREN'S SERVICES, )
)
Appellee. )
)
STATE OF ALASKA, DEPARTMENT )
OF FAMILY & COMMUNITY )
SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellant, )
)
v. )
)
C.B. and M.T., )
)
Appellees. )
)
DAN J., )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF FAMILY & COMMUNITY )
----------------------- Page 2-----------------------
SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Adolf V. Zeman, Judge.
Appearances: Laura Wolff, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for State of Alaska, Appellant in S-18595 and Appellee in S-
18586/18596. Dan Bair, Anchorage, for Appellant Tara R.
Katrina Larsen, Ketchikan, for Appellant Dan J. Margaret
McWilliams, Assistant Public Advocate, Juneau, and James
Stinson, Public Advocate, Anchorage, for Guardian ad
Litem. Goriune Dudukgian and James J. Davis, Jr., Northern
Justice Project, LLC, Anchorage, for Appellees C.B. and
M.T.
Maassen, Chief Justice, Carney, Borghesan, and Pate,
*
Justices, and Winfree, Senior Justice. [Henderson, Justice,
not participating.]
CARNEY, Justice.
INTRODUCTION
The Office of Children's Services (OCS) took emergency custody of a
baby who tested positive for illicit drugs at birth and placed the baby in a foster home.
OCS filed a petition to terminate parental rights about a year later. Both parents
expressed interest in voluntarily relinquishing their parental rights, but the superior
court determined that because their later signed forms were not dated or signed by an
OCS witness, the relinquishments were not valid.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
-2- 7680
----------------------- Page 3-----------------------
OCS subsequently gave notice that it planned to move the child from the
foster home to her maternal aunt 's home. The foster parents opposed and moved to
intervene to request a placement review hearing. The court granted the motion for that
limited purpose. After an evidentiary hearing the court concluded that OCS abused its
discretion when it decided to move the child.
Following the court's placement review decision, the mother moved to
withdraw her putative relinquishment. The court granted her motion.
The foster parents then filed a motion to reconsider the order allowing the
mother to withdraw her relinquishment. The court granted the foster parents' motion
and reversed its order withdrawing the relinquishment. The court then terminated the
parental rights of both parents without holding an evidentiary hearing.
OCS and both parents appealed the superior court's decisions. They ask
us to determine whether the foster parents were properly allowed to intervene regarding
the relinquishment of parental rights; whether it was error to terminate parental rights;
and whether State, Department of Health & Social Services, Office of Children's
Services v. Zander B.1 should be overruled. Because it was error to allow the foster
parents' continued intervention, to reinstate the relinquishments, and to terminate
parental rights, we vacated all the orders relating to those errors and remanded to the
superior court for further proceedings.
We issued a subsequent order in response to the superior court's request
for clarification regarding appropriate further proceedings. In that order we clarified
that it was an abuse of discretion to either implicitly or explicitly permit the foster
parents to continue to intervene regarding the validity of the parents' relinquishments ;
that it would be a continuing abuse of discretion to allow them to participate in any
aspect of this case addressing the termination of parental rights; that it was an additional
1 474 P.3d 1153 (Alaska 2020).
-3- 7680
----------------------- Page 4-----------------------
abuse of discretion to revisit the validity of the relinquishments when OCS had
determined that it was no longer seeking to terminate parental rights; and finally that it
was an abuse of discretion to issue termination orders without providing the parties with
notice and an opportunity to be heard, as well as a legal error to issue a termination
2
order without making a best interests finding.
We also explained that to the extent the superior court may have
considered or relied upon an adoption statute, AS 47.10.111(d), to permit the foster
parents' continued intervention, the court committed legal error.
We now provide additional explanation of our orders.
FACTS AND PROCEEDINGS
A. Facts
3
Tara R. gave birth to a daughter in May 2020. After receiving a report
that Tara used drugs while she was pregnant and that the baby tested positive for opiates
and amphetamines, OCS took emergency custody of the baby. OCS also determined
that the baby's father, Dan J., was not an appropriate placement for her. After two
weeks in the hospital withdrawing from drugs, the baby was placed in foster care with
the Tates, who are not related to her. Within a month the Tates told OCS that they were
interested in adopting the baby. In May 2022 they filed a petition to adopt her.
The child has a number of medical challenges and developmental delays
because of her exposure to drugs . She has a speech delay, has difficulty walking due
to uneven development of her limbs, and needs to eat small amounts of food at frequent
intervals through the day. The Tates arranged their schedule to address her needs,
including feeding her every hour.
2 OCS asks that we overrule Zander B., but in light of our orders, we see no
need to address that issue.
3 We use pseudonyms to protect the parties' privacy.
-4- 7680
----------------------- Page 5-----------------------
OCS continued to seek relatives who could care for the child even though
4
it had placed her with the Tates. OCS considered Tara's sister Tessy, but her live-in
partner had a criminal history that prevented OCS from placing the child in their home.
OCS arranged for Tessy to have supervised visits with the child throughout 2021 and
2022.
B. Proceedings
OCS filed a petition to terminate Tara's and Dan's parental rights in
September 2021. The termination trial began on February 7, 2022, by video conference.
Neither parent was able to use the video feature, so they participated only by telephone.
Tara and Dan both stated that they intended to relinquish their parental rights by signing
relinquishment forms prepared by OCS . They confirmed under oath that they wanted
to relinquish their rights. The court informed the parents that they needed to sign the
relinquishment forms either in the presence of the court or in the presence of an OCS
worker. The court also informed them that they had 10 days to withdraw their
relinquishments if they changed their minds.
The court then addressed each parent separately to confirm that each of
them was knowingly and voluntarily choosing to relinquish parental rights. The
assigned OCS caseworker offered to meet with the parents to have them sign the forms
in his presence. The court therefore ordered both parents to sign in the presence of the
caseworker when the caseworker brought the documents to them.
The court next made permanency findings. The court found that the child
continued to be in need of aid, that OCS had made reasonable efforts to reunify the
4 AS 47.14.100(e)(3) ranks preferences for out-of-home placements for
children in OCS custody, beginning with adult family members.
-5- 7680
----------------------- Page 6-----------------------
family, and that it was making reasonable efforts to finalize a permanency plan, which
5
OCS had advised had a "single goal of adoption."
Tara's and Dan's relinquishment forms were filed with the court in
February. Each relinquishment form was signed by a parent, but not dated or witnessed
by an OCS representative.
Later that month OCS provided the Tates notice that it intended to move
the child to Tessy's home. The Tates requested a placement review hearing. Tara
opposed the request. The Tates replied that Tara no longer had parental rights and
lacked standing to oppose their motion, and that the planned move was an abuse of
OCS's discretion.
In March the court issued a notice regarding the relinquishment forms.
The notice informed the parties that "the Court [could not] verify either the signature of
the individuals as the people who appeared on record, or alternately the date of the
signature to show that it was done on the same day as the hearing," because the
relinquishment forms were not dated or witnessed by OCS. The court stated it would
not sign the termination orders until the issue was resolved.
1. Foster parents' motion to intervene in the placement decision
After OCS notified them of its decision to place the child with Tessy, the
Tates moved to intervene "[f]or the limited purpose of challenging OCS's decision to
6
move [the child] to the maternal aunt," citing Zander B. and Alaska Civil Rule 24.
They attached an affidavit from Ms. Tate to their reply, asserting that Tessy was an
inappropriate placement because her partner, who had died in October, had a criminal
history. She claimed Tessy's partner died from a drug overdose at home and alleged
5 AS 47.10.011 (requiring court to establish child is in need of aid by
preponderance of the evidence).
6 474 P.3d 1153, 1163-64 (Alaska 2020) (permitting foster parent
intervention as "the rare exception rather than the rule"); Alaska R. Civ. P. 24 (outlining
procedure for intervention).
-6- 7680
----------------------- Page 7-----------------------
that Tessy's relationship with him "exemplif[ied] terrible judgment" and disregard for
her own children's safety. She also claimed Tessy had never visited or developed "any
sort of relationship" with her niece.
The court found that the Tates "ha[d] a sufficient interest . . . to be
permitted to intervene for the limited purpose of requesting a placement review." Tara
filed a motion for reconsideration, arguing that the court misapplied Zander B. and the
intervention would unduly delay the placement, which would "adversely affect the time
that is needed for strengthening the bond between the child's maternal aunt and the
child." The Tates opposed reconsideration, arguing that they were the "only two people
. . . fully aware of the needs of th[e] child." They argued that because Tara would not
disclose "the profound dysfunction and danger in the maternal aunt's home," they were
the only people who could describe the relationship between the aunt and the child.
Tara argued in reply that "[t]he facts in this case [were] clearly distinguishable from
Zander B." and allowing intervention "disrupts the scheme that has been carefully laid
out for CINA cases."
The court denied the motion for reconsideration. It reasoned that although
the Tates did "not explicitly indicate that they are privy to evidence in the possession
of nobody else," as in Zander B., "there is an alleged risk to the wellbeing of the child
if the familial placement goes through." The court found "that, at a minimum, the foster
parents have the standing to intervene and make their case."
Following the order on reconsideration, OCS asked for leave to amend its
response to support Tara's motion for reconsideration, which the court granted. OCS
argued that "the foster parents['] representation does not include specific evidence
about the proposed placement that the court would not get from another party" and that
the intervention "subvert[ed] the purpose of child protection law."
OCS pointed out that a guardian ad litem (GAL) - a "separate and
distinct . . . . specialized person" - had been appointed to "best guard the child's best
-7- 7680
----------------------- Page 8-----------------------
7
interest." It noted that "the GAL was already aware of many of the allegations posited
by the foster parents" and that if "the transfer . . . were not in the child's best interest
the . . . [GAL] could and would request a hearing at which time the foster parents would
likely be called to testify as to their views on the matter."
In May 2022 Tessy moved to intervene. She attached an affidavit in which
she denied Ms. Tate's claims about her and her former partner and pointed out that if
these claims were true, she would have lost her foster care license as well as custody of
Tara's other daughter, who was placed in her care.
2. Placement review hearing
After a scheduling hearing in March 2022, the case was reassigned to a
different judge. A placement review hearing was held over three days in June and July.
At the beginning of the hearing the court permitted Tessy to intervene.
The Tates called a mental health therapist licensed in Washington as an
expert witness. The therapist testified that the child appeared to suffer from neonatal
8
abstinence syndrome and that moving her out of the Tates' home could adversely affect
the child. She also testified that she did not believe there was any "direct benefit" to
placing a child with family members or siblings if the child did not "have a previously
established relationship with" them.
Mr. Tate testified that he was the child's primary caregiver and described
their daily routine, emphasizing how much time was needed to properly care for the
7 See AS 25.24.310(c) (requiring court to appoint GAL "when . . .
representation of the child's best interests . . . would serve the welfare of the child");
AS 47.10.050 (providing for appointment of GAL in CINA cases "under the terms of
AS 25.24.310"); CINA Rule 2(e) (defining GAL as "a person appointed by the court to
represent the best interests of the child in the CINA proceeding").
8 See Karen McQueen & Jodie Murphy-Oikonen, Neonatal Abstinence
Syndrome, 375 NEW ENG . J. MED. 2468, 2469 (2016) ("The neonatal abstinence
syndrome refers to a postnatal opioid withdrawal syndrome that can occur in 55 to 94%
of newborns whose mothers were addicted to or treated with opioids while pregnant.").
-8- 7680
----------------------- Page 9-----------------------
child. When questioned on cross-examination about whether he had seen the parents'
relinquishment forms, he replied that he knew "the relinquishment paperwork was done,
but it was done improperly . . . so that paperwork was thrown out."
The OCS caseworker testified that he had evaluated Tessy's home and
confirmed that the child had not been placed with her while she was dating her former
partner because of his criminal record. The caseworker testified that he now believed
that Tessy could meet the child's needs. He testified that it was normal OCS practice
to move a child from a foster home to an available family member once a barrier to
placement, such as Tessy's partner and his criminal record, was removed. He also
testified that the Tates "disagreed with" OCS's decision and "were unwilling to allow
[the child] to spend time with her aunt alone."
Tessy testified and denied the allegations in the foster mother's affidavit.
She testified that her former partner had not displayed any behaviors that indicated he
was using drugs after 2020, that he had been sick for a week prior to his death, and that
the police report listed his cause of death as undetermined. She described the classes
and training she completed to better care for her autistic son, and testified that she would
make sure that she met her niece's needs.
Ms. Tate then testified about the child's needs, and how she and her
partner had not been away from her during the nearly two years the child had been with
them. She testified that she had based her affidavit on police reports she had obtained
and information she learned "[t]hrough my employment with the District Attorney's
Office."
The court granted the Tates' motion staying the OCS placement decision
in August. It found "clear and convincing evidence of good cause to deviate from the
familial statutory preferences that otherwise govern placement" because Tessy "would
have difficulty effectively addressing [the child's] needs." The court found the Tates'
testimony credible. It also found that OCS had decided to move the child to Tessy
"without meaningfully making any effort to truly understand [the child's] needs and
-9- 7680
----------------------- Page 10-----------------------
whether the new placement would be able to meet those needs." The court concluded
that OCS abused its discretion and stayed the child's placement.
3. Motions for reconsideration and to withdraw relinquishment
Tara filed a motion for reconsideration, asking the court to take into
account the statutory preference for preserving sibling relationships, pointing out that
9
OCS had placed the child's younger sibling with Tessy. Tara also moved to withdraw
her relinquishment, explaining that six months had passed since the court's notice and
no updated relinquishment with an OCS signature had been filed. None of the other
parties - OCS, the GAL, or Dan - opposed Tara's motion. The court granted Tara's
unopposed motion to withdraw her relinquishment in August.
In September the Tates filed an opposition to Tara's motion for
reconsideration, arguing that the child and her sister "ha[d] no relationship whatsoever."
They also filed a motion to reconsider the order granting withdrawal of Tara 's
relinquishment. The Tates argued that they were "not properly served," that they would
have opposed the motion had they been served, and that there was no legal or factual
basis for Tara's motion . They requested a hearing "to develop a record [about] whether
the factual assertions in [Tara's] motion are correct and whether the signed
relinquishment is valid as a matter of law."
Tara responded that the court had allowed the Tates to intervene only for
the limited purpose of requesting a placement review and "[t]he request for withdrawal
of a relinquishment is a different process in this matter." She noted that the court had
"flatly affirmed that it 'will not sign the order terminating parental rights' unless 'th[e]
issue [of providing a copy of the relinquishment signed and dated by an OCS
representative] is resolved. ' " Tara continued that "[i]t is undisputed that the issue had
not been resolved" because her relinquishment did not show that it was signed in the
9 See AS 47.10.080(w) ("The court shall recognize a presumption that
maintenance of a sibling relationship . . . is in a child's best interest.").
-10- 7680
----------------------- Page 11-----------------------
presence of an OCS representative as required by AS 47.10.089(b).10 OCS responded
that the foster parents lacked standing to oppose Tara's motion to withdraw her
relinquishment and that allowing them to intervene to do so would breach the
confidentiality of CINA proceedings. It also argued that the court in its notice had
already determined the validity of the relinquishment.
The court held status hearings in October and November. In October OCS
notified the court that it intended to create a reunification plan. The Tates argued that
the parents' relinquishments were valid if signed in the presence of an OCS
representative, but they also argued that the court needed additional evidence to make
a final determination. In November OCS advised the court that Tara was "case plan
compliant" and that she had begun a trial home visit with the child's sister. It also told
the court that the Tates were not cooperating with OCS's attempts to arrange
unsupervised visits between Tessy and the child. The GAL advised the court that
following a recent team decision meeting the parties agreed to extended visitation and
transition planning for the child's move to Tessy's home, but they "haven't occurred
yet." The GAL noted some frustration and stated there needed to be "some forward
momentum on this case."
A week after the November status hearing, without holding another
hearing, the court vacated its previous order and "confirmed" that Tara's and Dan's
relinquishments were valid. In the same order the court "confirmed" that the Tates'
intervention was ongoing and allowed them to participate in the case and to oppose
Tara's motion to withdraw her relinquishment. The court cited Zander B. and Rule 24
in support of its decision. Although the court acknowledged that in Zander B. we had
10 AS 47.10.089(b) ("A voluntary relinquishment must be in writing and
signed by a parent, regardless of the age of the parent, in the presence of a representative
of the department or in the presence of a court of competent jurisdiction with the
knowledge and approval of the department.").
-11- 7680
----------------------- Page 12-----------------------
specifically cautioned that allowing foster parents to intervene to argue for the
termination of parental rights was not appropriate, it concluded that this was "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."11
The court found that Tara's "relinquishment shares a question of law or
facts in common with the placement review hearing" because its validity would mean
that Tara was no longer a party to the CINA case. It added that because the Tates'
adoption petition was stayed "as a result of both the litigation regarding the placement
review and the remaining relinquishment issues, the outcome of their adoption case
share[d] questions of law or facts with the issue of the voluntary relinquishments." The
court found that neither Tara nor Dan had done anything "to signal a desire to revoke
their relinquishments within the ten-day statutory period and it is clear from the Record
that the Court advised them of their ability to do so." The court noted that Tara's
progress was "commendable," but because the child's "permanency . . . must be the
focus," it terminated Tara's and Dan's parental rights.
Tara and Dan both appeal the termination of their parental rights. In
addition Dan argues that the superior court erred by confirming the voluntary
relinquishments. OCS appeals the termination of Tara's parental rights and argues that
the court abused its discretion by allowing the Tates to intervene to contest the
withdrawal of Tara's relinquishment. The GAL is aligned with the appellants and
similarly argues that the superior court erred in terminating parental rights and
enforcing the relinquishments without providing due notice or making a best interests
finding.12 We granted OCS's motion to consolidate the appeals.
11 474 P.3d 1153, 1170-71 (Alaska 2020) (emphasis in original).
12 The GAL is designated as an appellee by rule. Alaska Appellate Rule
204(g) requires that all parties except those "who file[] a notice of appeal . . . . are
-12- 7680
----------------------- Page 13-----------------------
STANDARD OF REVIEW
We review a superior court's grant or denial of a motion for permissive
intervention for abuse of discretion.13 "A decision constitutes abuse of discretion if it
is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper
motive.' "14
"Whether a parent's due process rights were violated in a termination
proceeding is a question of law," which we review using our independent judgment.15
"Whether the trial court's findings comport with the requirements of the
CINA statutes and rules is a question of law" to which we apply our independent
judgment. 16 Statutory interpretation also "raises questions of law to which we apply
our independent judgment."17
DISCUSSION
Underlying this consolidated appeal are disagreements about the scope
and application of our decision in State, Department of Health and Social Services,
Office of Children's Services v. Zander B.18 In Zander B. the superior court permitted
foster parents to intervene in a CINA case to contest OCS's plan to move a child to his
deemed to be appellees, regardless of their status in the trial court." The GAL was also
aligned with Tara, Dan, and OCS at trial.
13 Zander B., 474 P.3d at 1162.
14 Id. (alteration in original) (quoting del Rosario v. Clare, 378 P.3d 380,
383 (Alaska 2016)).
15 Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Fam. & Youth
Servs., 165 P.3d 605, 614 (Alaska 2007).
16 Zander B., 474 P.3d at 1162 (quoting S.S.M. v. State, Dep't of Health &
Soc. Servs., Div. of Fam. & Youth Servs., 3 P.3d 342, 344 (Alaska 2000)).
17 Id.
18 474 P.3d 1153.
-13- 7680
----------------------- Page 14-----------------------
grandmother's home.19 The court held a placement review hearing20 and concluded
that OCS had abused its discretion when it decided to move the child.21 OCS
appealed.22 We determined that, in light of the specific circumstances presented in that
case, the superior court had not abused its discretion by permitting the foster parents to
intervene.23 But we made clear that "[f]oster parent intervention should . . . be the rare
exception rather than the rule."24
Here the superior court relied on Zander B. to permit the foster parents '
continued intervention after they successfully challenged OCS's intended transfer of
the child. OCS, the parents, and the GAL argue that this was error. We agree that
Zander B. did not permit the continued intervention granted in this case. We therefore
vacated the Order Confirming Biological Parents' Voluntary Relinquishments and
Foster Parents' Intervention; the Order and Judgment Terminating Parental Rights and
Responsibilities of the Mother; and the Order and Judgment Terminating Parental
Rights and Responsibilities of the Father.25
A. The Superior Court Abused Its Discretion By Allowing Continued
Intervention By The Foster Parents.
When it granted the Tates' motion to intervene in March 2022, the
superior court entitled its order "Order Granting Limited Intervention." The order
explicitly stated that the foster parents were being "permitted to intervene for the limited
19 Id. at 1157-58.
20 See CINA Rule 3; AS 47.10.070 (describing hearing requirements and
procedures).
21 Zander B., 474 P.3d at 1161.
22 Id. at 1161-62.
23 Id. at 1164-65.
24 Id. at 1164.
25 Because Zander B. does not allow the extensive intervention granted the
foster parents, we do not reach the parties' additional arguments.
-14- 7680
----------------------- Page 15-----------------------
purpose of requesting a placement review [hearing]." No one challenges this order,
which appears to be in keeping with Zander B. The superior court agreed with the Tates
and stayed the proposed change in placement in August, after which the purpose of their
limited intervention had been achieved.26
But in September the superior court accepted the Tates' late-filed
opposition to Tara's motion to reconsider the stay of placement. It also allowed the
Tates to file a motion to reconsider the order granting Tara's motion to withdraw her
relinquishment, in which they claimed that the court had failed to "properly serve" them
with the order.
Tara, Dan, OCS, and the GAL argue that the court erred by permitting the
Tates to participate as parties "beyond the scope of their limited permissive
intervention." We agree.
1. Intervention was permitted only for the limited purpose of the
placement review hearing.
In Zander B. we affirmed the superior court's order allowing foster parents
"to intervene . . . for the limited purpose of challenging the decision to place [the child]
with [his grandmother]."27 We also specifically noted that the court's written order
permitting the foster parents "to intervene in any placement review hearing regarding
[the child] . . . was clearly overbroad."28 And while we recognized that there could be
unusual cases in which intervention could be proper, we also stated that "allowing foster
parents to intervene as a matter of course would be contrary to the goal s of the CINA
26 This did not end the Tates' ability to participate in subsequent
proceedings. As the dissent in Zander B. noted, the existing CINA rules allow foster
parents to "participate in many aspects of a CINA case, but not as a party." Zander B.,
474 P.3d at 1177 (Winfree, J., dissenting).
27 Id. at 1164 (majority opinion).
28 Id. at 1164 n.29.
-15- 7680
----------------------- Page 16-----------------------
statutes."29 We held that "[f]oster parent intervention should therefore be the rare
exception."30 After noting that neither their status as "pre-adoptive" foster parents nor
their attachment to nor their future plans for the child were reason to allow intervention,
we concluded that "[w]hat 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."31
In this case the court granted the Tates "limited intervention" to contest
the proposed placement with Tessy based on the specific allegations in Ms. Tate's
affidavit. After an evidentiary hearing at which the Tates presented and Tara and Tessy
disputed those allegations, the superior court ruled in favor of the Tates and stayed
OCS's placement decision. Once the superior court resolved the proposed placement,
including Tara's motion for reconsideration,32 the purpose of the Tates' limited
intervention was achieved.33
If the Tates wished to participate beyond the limited intervention they had
been granted, they needed to request permission to do so under Civil Rule 24(b). They
failed to do so. And as we observed in Zander B., the rule requires foster parents to
demonstrate both "[a] common question of law or fact" with the underlying case and
that their intervention "will [not] unduly delay or prejudice the adjudication of the rights
of the original parties."34
29 Id. at 1163.
30 Id. at 1164.
31 Id. at 1164-65 (emphasis in original).
32 Although the superior court did not rule on this motion, under Alaska Civil
Rule 77(k), a motion not ruled upon within 30 days of the date of filing, or of the filing
of a response, is taken as denied.
33 See Zander B., 474 P.3d at 1164 n.29 (cautioning courts to limit foster
parent intervention to "specific upcoming proceedings" (emphasis added)).
34 Id. at 1164.
-16- 7680
----------------------- Page 17-----------------------
In its November 2022 order, the superior court concluded that the Tates'
continued intervention was permitted because Tara's withdrawal of her relinquishment
shared a common question of law or fact with the placement review hearing . The court
stated that if Tara's relinquishment were valid, "then she no longer has any parental
rights concerning [the child], [the child] will not be placed with her in [the] future, and
[Tara] is not a party to any subsequent proceedings." The court added that because the
foster parents had filed an adoption petition, "the outcome of their adoption case
share[d] questions of law or fact[] with the issue of the voluntary relinquishments."
It was an abuse of discretion to allow the Tates' continued intervention
despite their failure to request intervention under Civil Rule 24(b). And it was an abuse
of discretion to equate the Tates' further participation in separate matters with the
placement review hearing at which they had prevailed. In Zander B. we noted that the
superior court's order allowing those foster parents to participate in any placement
review hearing regarding the child was "clearly overbroad."35 We cautioned courts "to
limit foster parent intervention to specific upcoming proceedings."36 Whether Tara's
(or Dan's) relinquishment was legally valid - despite the superior court's previous
ruling that they were not - has no question of law or fact in common with the Tates'
intervention to present "specific evidence about the proposed placement that the court
was not going to receive from any existing party."37 We stated in Zander B. that "we
cannot . . . 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."38 We still cannot conceive of such a case. Yet that is precisely what
the Tates were permitted to do, and they again achieved their purpose. It was an abuse
35 Id. at 1164 n.29.
36 Id.
37 See id. at 1165 (emphasis in original).
38 Id . at 1170.
-17- 7680
----------------------- Page 18-----------------------
of discretion to permit the Tates to participate as parties in this case far beyond the
limited role allowed by Zander B.
B. It Was A Violation Of The Parents' Due Process Rights To Terminate
Parental Rights Without Notice Or An Opportunity To Be Heard.
Despite the parties' arguments that more evidence was needed before the
court could decide whether Tara's relinquishment was valid and despite its own
recognition that it would need to schedule an evidentiary hearing before making a
decision, the superior court issued an order "confirming" both parents' relinquishments
and the Tates' continued participation to litigate that issue. In the same order, issued a
week after the last status hearing, the court terminated Tara's and Dan's parental rights.
Making those decisions and ordering the termination of parental rights violated the
parents' due process rights .39
The most basic requirements for due process are notice and an opportunity
to be heard.40 The superior court provided neither before issuing its order. No party
disputes that parental rights are rights of the highest importance - among "the most
39 The GAL also argues the earlier determination was the "law of the case"
and therefore binding within these proceedings. See Jones v. Jones, 505 P.3d 224, 231
(Alaska 2022). But application of the "law of the case" doctrine is discretionary and
requires the issue to have been decided in something like a final, appealable judgment.
See id.; Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977). The law of the
case doctrine does not apply here.
40 In re the 2021 Redistricting Cases, 528 P.3d 40, 58 (Alaska 2023) (quoting
Haggblom v. City of Dillingham , 191 P.3d 991, 995 (Alaska 2008)). We use the United
States Supreme Court's test from Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976),
to analyze due process claims. We consider three factors: the private interest affected
by the official action, the risk of erroneous deprivation and the probable value of
additional or substitute procedural safeguards, and "the Government's interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail." Sarah A. v. State, Dep't
of Health & Soc. Servs., Off. of Child.'s Servs., 427 P.3d 771, 778 (Alaska 2018)
(quoting D.M. v. State, Div. of Fam. & Youth Servs., 995 P.2d 205, 212 (Alaska 2000)).
-18- 7680
----------------------- Page 19-----------------------
basic of all civil liberties."41 Because of their importance we have held "that
proceedings to terminate parental rights implicate fundamental interests comparable
with those at stake in a criminal prosecution."42 The proceedings in which parental
rights are at stake thus require according the parents due process commensurate with
their importance.
Yet, in spite of the fundamental importance of Tara's and Dan's parental
rights, the superior court provided no notice to any party of its intentions to reverse the
previous determination that the relinquishments were not valid; to allow the Tates -
who had not requested to participate after the placement review hearing - to continue
to participate and to advocate for the termination of parental rights; and to terminate
Tara's and Dan's parental rights. The superior court did not convene an evidentiary
hearing or termination trial; it provided no opportunity for Tara and Dan to be heard.
The parents were deprived of their rights to due process of law under both
the Alaska and United States Constitutions before their parental rights could be
terminated.
C. It Was Legal Error To Order Termination Of Parental Rights
Without Making Best Interests Findings.
Alaska Statute 47.10.089(e) requires the superior court to "determine[] . . .
that termination of parental rights under the terms of the relinquishment is in the child's
best interest"43 before it can accept a parent's relinquishment or terminate parental
41 Seth D. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 175
P.3d 1222, 1227-28 (Alaska 2008).
42 In re A.S.W. , 834 P.2d 801, 806 (Alaska 1992).
43 AS 47.10.089(e).
-19- 7680
----------------------- Page 20-----------------------
rights based upon it. If the court determines that termination of a parent's rights would
not be in the child's best interests for some reason, it may not terminate rights.44
By the time of the court's November 2022 order, nine months had passed
since the putative relinquishments were first presented to the court . OCS no longer
sought to terminate Tara's and Dan's parental rights; in fact, it opposed termination and
the Tates' continued participation in the case. OCS was seeking to reunify the family
and had already returned Tara's younger child to her on a trial home visit after first
placing the child with Tessy.
There is no indication in the order or the record before us that the superior
court considered the child's best interests in light of the changes that occurred in the
months leading up to the order. In fact, the order itself does not include any best
interests finding at all. This was legal error.
D. Alaska Statute 47.10.111(d) Does Not Authorize The Foster Parents'
Continued Intervention.
The Tates additionally assert that the superior court properly authorized
their continued intervention based on AS 47.10.111(d).45 Prior to the statute's passage
in 2016, adoption proceedings, CINA proceedings, and other related proceedings often
occurred in different courts at different times - an inefficient process that frequently
delayed permanency for children in state custody.46 The legislature enacted this statute
44 At oral argument before us, the GAL offered a number of examples why
a court could determine that termination was not in the child's best interests. Among
them were the child opposing termination; the child's connection to other family
members; or that a parent's relinquishment was motivated by a desire to avoid child
support.
45 AS 47.10.111(d) (providing petitioner in adoption proceeding does not
become party to CINA proceeding, but may participate in proceedings that "concern"
petition).
46 See Minutes, H. Health & Soc. Servs. Comm. Hearing on H.B. 200, 29th
Leg., 1st Sess. 3:11:30-3:13:15 (Mar. 29, 2016) (statement of Christy Lawton, Dir., Off.
of Child's Servs.).
-20- 7680
----------------------- Page 21-----------------------
in order to require a "one judge, one child, one family" approach to children's cases
mandating that all the hearings would be held before the judge assigned to the CINA
case.47 The statute first requires that "if a person seeks adoption or appointment as legal
guardian of a child in state custody . . . , the court shall hear the adoption or guardianship
proceedings as part of the child-in-need-of-aid proceedings relating to that child."48 But
the statute also clarifies that "[a] person who files a petition for adoption or legal
guardianship of a child under this section does not become a party to the child-in-need-
of-aid proceedings."49 The statute creates a limited exception for a person who has filed
a petition for adoption: that person "may only participate in proceedings under this
chapter that concern the person's petition."50
We reject the Tates' argument. First, they did not file an adoption petition
until May 2022, months after the placement review hearing had been held. And we
reiterate that the designation of a foster home as "pre-adoptive" does not have
significance outside of signifying OCS's current intention.51 The statute is thus
irrelevant to the superior court's order granting limited intervention.
Second, the Tates' interpretation of the statute would turn its purpose
upside down. The statute establishes that "[a] person who files a petition . . . does not
become a party" to the CINA case; it then allows for limited "participat[ion] in
47 See id.
48 AS 47.10.111(a).
49 AS 47.10.111(d) (emphasis added).
50 Id.
51 See Dara S. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
426 P.3d 975, 999 (Alaska 2018); see also State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs. v. Zander B., 474 P.3d 1153, 1177 n.21 (Alaska 2020) (Winfree, J.,
dissenting) (calling such labels "nothing other than descriptive labels for foster
placements").
-21- 7680
----------------------- Page 22-----------------------
proceedings . . . that concern the person's petition."52 Yet the foster parents would have
us apply the exception to eviscerate the rule. Their argument that their continued
intervention is appropriate because it "concerns" their petition strains the common
meaning of "concerns."53 In keeping with the statute 's purpose, AS 47.10.111(d)
recognizes that a petition for adoption may be discussed alongside something like a
relinquishment. And its guarantee of participation rights for "proceedings . . . that
concern the person's petition" ensures that such a petitioner is notified of and can be
heard in CINA proceedings that directly affect a concrete aspect of the adoption
proceeding, like scheduling a hearing date. But nothing in this provision allows the
granted participation to overcome the statute's prohibition of granting party status to a
petitioner merely because the petitioner is present at a hearing .
To the extent AS 47.10.111(d) was a basis for the superior court's order
permitting the Tates' continued intervention and participation as parties, it was legal
error.
CONCLUSION
We VACATE the Order Confirming Biological Parents' Voluntary
Relinquishments and Foster Parents' Intervention; the Order and Judgment Terminating
Parental Rights and Responsibilities of the Mother; and the Order and Judgment
Terminating Parental Rights and Responsibilities of the Father and REMAND to the
superior court for further proceedings.
52 AS 47.10.111(d) (emphasis added).
53 At oral argument before us the Tates' attorney asserted that intervention
was proper because the later motions "affect[ed]" their petition. But we presume that
the legislature purposefully chooses the words it uses in statutes and it did not use
"affect."
-22- 7680
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
