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              THE SUPREME COURT OF THE STATE OF ALASKA

IRMA E.,                                      )
                                              )        Supreme Court No. S-15003
                     Appellant,               )
                                              )        Superior Court Nos.
     v.                                       )        3PA-11-00019/00020 CN
                                              )
STATE OF ALASKA,                              )        OPINION
DEPARTMENT OF HEALTH &                        )

SOCIAL SERVICES, OFFICE O F                   )        No. 6841- November 22, 2013

CHILDREN’S SERVICES,                          )

                                              )
                     Appellee.                )
                                              )

             Appeal from the Superior Court of the State of Alaska, Third
             Judicial District, Palmer, Vanessa White, Judge.

             Appearances: Irma E., pro se, Wasilla, Appellant. Andy
             Harrington, Assistant Attorney General, Fairbanks, and
             Michael C. Geraghty, Attorney General, Juneau, for
             Appellee.

             Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
             Bolger, Justices.

             BOLGER, Justice.
I.    INTRODUCTION

             Irma E. asked the State Office of Children’s Services to place her
granddaughters with her, but OCS denied her request.1 Irma then repeatedly asked the
superior court to hold a hearing to review OCS’s decision, but the superior court denied
Irma’s requests for a hearing. Based on AS 47.14.100(m), we conclude that a family
member who has been denied placement of a child in OCS’s custody is entitled to a
review hearing to contest the OCS placement decision.
II.   FACTS AND PROCEEDINGS
             In January 2011, OCS took emergency custody of Irma’s granddaughters,
Nadia and Tia. The girls had been living with Irma, their maternal grandmother, while
Nora, their mother, was homeless. OCS removed the girls from Irma’s home because of
allegations that Irma’s son had been sexually abusing his own daughters and had
sexually abused his younger sister when she was a minor. OCS was concerned because
Irma allowed her son to remain in the home with Nadia and Tia after learning that he was
being investigated by law enforcement officials for sexually abusing children. The
superior court ultimately determined that the girls were children in need of aid based on
Nora’s stipulation that they had been placed at risk of sexual abuse. After several
placements the girls were placed with a non-relative foster family.
             Sometime before April 25, 2012, Irma asked OCS to place the girls with
her. OCS denied Irma’s request, stating that she had an unspecified prior history with
their agency. Irma filed a request for a “review hearing on placement denial” with the
superior court, using a form provided by the court system. She alleged that OCS’s action
was in error, and she offered to “show proof of this with audio and video.” On July 3,
2012, the superior court denied Irma’s request by checking a box on the request form


      1
             Pseudonyms are used for all family members and foster parents.

                                           -2-                                     6841
marked “DENIED. Good cause for a review hearing has not been demonstrated.” The
court did not otherwise explain its decision.
              Irma apparently renewed her request with OCS, because on October 5,
2012, OCS sent her another denial letter. This letter listed numerous reasons for OCS’s
denial, including concerns that Irma’s personality “place[s] her at risk to fail to
appropriately protect the children.”      The letter referenced Irma’s “co-dependent
relationship with her adult children” including Nora, which in OCS’s opinion rendered
Irma’s assurance that she would ensure the safety of her grandchildren “highly suspect.”
              On October 22, 2012, Irma filed a request with the superior court for a
hearing on OCS’s denial of her latest request for placement, again using a form provided
by the court system. Irma alleged that OCS’s denial was in error; she claimed to be in
possession of new evidence, and she again offered to prove her point “with audio and
video.” In addition, she asserted that OCS employees had misused their power, broken
the law, and lied. OCS had opposed Irma’s earlier request for a hearing but filed a non-
opposition to Irma’s second request and itself requested “the opportunity to set the record
straight at a contested hearing.”
              On November 8, 2012, the superior court began a trial to determine whether
to terminate Nora’s parental rights to Nadia and Tia. The court had intended to take up
Irma’s placement request on that date, but it did not do so because it had neglected to
notify the parties. However, the court informed the parties that it intended to deny Irma’s
request for a hearing and that its sole reason for considering a hearing was OCS’s
request. The superior court then denied Irma’s request for a hearing on the record,
suggesting that Irma could renew her request if she supplied the court with facts to
support her allegations against OCS.
              Later that month, Irma renewed her request for a review hearing, again
using a court system form, this time supporting her request with a letter to the superior

                                           -3-                                       6841

court in which she averred that she was capable of protecting Nadia and Tia from Nora,
that she had obtained a domestic violence protective order against Nora, and that she had
banned Nora from her home. On December 17, 2012, the superior court denied Irma’s
request by checking the box on the request form that indicated, “DENIED. Good cause
for a review hearing has not been demonstrated.”
              Irma appealed to this court. We granted OCS’s motion for a limited remand
to allow the superior court to enter findings and conclusions in support of its decision to
deny Irma’s request for a hearing.
              The superior court found that: (1) at the time of the girls’ removal Irma was
aware of the sexual abuse allegations against her son yet she continued to allow Nadia,
Tia, and her son to reside together in the home; (2) Irma was uncooperative with OCS
when the girls were removed; (3) Nora opposed Irma’s request that the girls be placed
with Irma; (4) Irma orchestrated the failure of the girls’ foster placement by relaying to
the foster parents threats that Nora had made from jail, and Irma’s motivation had been
to advance her prospects of having the girls placed with her; (5) Irma lacks insight into
the girls’ needs and into the harm her actions have caused the girls; and (6) Irma has a
co-dependent relationship with Nora, which would cause any placement of the girls with
Irma to be “confusing and destabilizing” to the girls.
              In its conclusions of law, the superior court stated that it agreed with OCS’s
denial of Irma’s request for placement because of Irma’s “apparent failure to protect the
two girls at the time of removal, coupled with her previous conduct that had resulted in
[an] OCS investigation, and culminating with her manipulation of the girls’ foster
placement and their mother to achieve her own ends.”
              The main issue on appeal is whether the superior court properly denied
Irma’s request for a hearing to review the OCS decision to deny Irma’s request that her
granddaughters be placed with her.

                                            -4-                                       6841

III.	   STANDARD OF REVIEW
              This case requires us to interpret the child in need of aid statutes, which we
do by applying our independent judgment, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.2
IV.	    DISCUSSION
        A.	   Alaska Law Provides An Adult Family Member Who Has Been Denied
              Placement Of A Child The Right To A Review Hearing.
              Alaska law has long demonstrated a preference that children who are in
OCS’s custody be placed with family members. Before 2005, AS 47.14.100(e) provided
that OCS could deny a request for placement by a child’s “relative by blood or marriage”
only after making “a determination, supported by clear and convincing evidence, that
placement of the child with the relative will result in physical or mental injury.”3 A
relative whose request for placement was denied by OCS had the right to de novo review
of OCS’s ruling by the superior court.4
              In 2005 and 2006 the legislature amended AS 47.14.100(e) to provide, in
relevant part, that when a child is taken into OCS’s custody OCS must place the child,
“in the absence of clear and convincing evidence of good cause to the contrary,” (1) in
the least restrictive setting that most closely approximates a family and that meets any
special needs of the child, (2) within reasonable proximity to the child’s home,
considering any preferences of the child and the parents and any special needs of the


        2
             Brynna B. v. State, Dep’t of Health & Soc. Servs., 88 P.3d 527, 529 (Alaska
2004) (citing S.S.M. v. State, Dep’t of Health & Soc. Servs., 3 P.3d 342, 344 (Alaska
2000)).
        3
             Former AS 47.14.100(e) (2004). The term “relative by blood or marriage”
was not defined.
        4	
              Id.

                                            -5-	                                      6841

child, (3) “with, in the following order of preference, (A) an adult family member; (B)
a family friend . . .; (C) a licensed foster home . . .; (D) an institution for children . . . .”5
               The amended subsection did not include the provision for de novo superior
court review of OCS’s denial of a request for placement. Instead, the legislation created
a new subsection, AS 47.14.100(m), which provides that when OCS “denies a request
for placement with an adult family member or a family friend, the department shall
inform the adult family member or family friend of the basis for the denial and the right
to request a hearing to review the decision.”6
               Thus, the legislature placed the burden on OCS to justify its denial of an
adult family member’s request for placement. If a judicial review hearing is requested,
OCS must demonstrate that its decision is supported by clear and convincing evidence.
The legislature gave a family member the right to request such a hearing, but did not
impose a burden on the family member to show good cause.
               The superior court in this case denied Irma’s request for a hearing because
of factual findings it made based on OCS’s adjudication petition, log notes from the
temporary custody and adjudication hearings, Nora’s stipulations that the girls were
children in need of aid (which were not Irma’s stipulations), and Irma’s testimony during

       5
              The 2005 rewrite of the subsection required OCS to make “a showing of
good cause to the contrary” when denying an adult family member’s or a family friend’s
request for placement. Ch. 64, § 34, SLA 2005. The 2006 legislation amended the
rewritten subsection to require OCS to have “clear and convincing evidence” of good
cause to the contrary before denying an adult family member’s or a family friend’s
request for placement. Ch. 20, § 8, SLA 2006.
             “Adult family member” is defined as “a person who is 18 years of age or
older and who is (A) related to the child as the child’s grandparent, aunt, uncle, or
sibling; or (B) the child’s sibling’s legal guardian or parent.” AS 47.10.990; AS
47.14.100(t)(1). “Family friend” is not defined.
       6
               Ch. 64, § 37, SLA 2005.

                                               -6-                                          6841

the trial to terminate Nora’s parental rights. None of these sources provided Irma with
the opportunities she would have been accorded had the superior court held an
evidentiary hearing to review her claim that OCS had improperly deviated from the
placement preferences provided by statute.
             To the extent that the superior court denied Irma’s request for a placement
review hearing because Irma failed to show good cause for a hearing, the court’s ruling
was in error. On remand the superior court must provide Irma with the hearing to which
she is statutorily entitled. At the hearing OCS, not Irma, will have the burden of
demonstrating, by clear and convincing evidence, that its denial of Irma’s request for
placement was justified. Irma must be allowed the opportunity to confront OCS’s
evidence against her and to present her position that OCS’s decision was in error.7
      B.     Irma’s Request Does Not Involve An Adoptive Placement.
             The State argues that the superior court should have treated this matter as
an adoption proceeding under AS 47.10.088(i) rather than as a CINA placement
proceeding under AS 47.14.100(e). Under AS 47.10.088(i) OCS must approve an adult
family member’s request to adopt a child “unless there is good cause not to approve the
adoption.”   Unlike placement requests made under AS 47.14.100(e), where the



      7
              On appeal, the State argues, in part, that we should uphold the superior
court’s decision because “[a] substantiated child protection services history can
constitute evidence of good cause to bypass the adult family member priority for either
foster care or adoptive placement,” Irma’s “unwillingness to cooperate with OCS
established good cause to bypass the adult family member priority for either foster care
or adoptive placement,” and “ ‘co-dependency’ between the adult family member and
the CINA parent(s) can constitute good cause to bypass the adult family member priority
for either foster care or adoptive placement.” We express no opinion on the merits of
these arguments because the factual findings required to support them were not properly
arrived at by the superior court. The State will have an opportunity to present evidence
and to argue those points on remand.

                                          -7-                                     6841

controlling standard is clear and convincing evidence, OCS may deny an adult family
member’s request for adoption based on a mere preponderance of evidence.8
             The State argues that Irma’s request for placement should have been treated
as a request for adoption for several reasons: (1) AS 47.10.088(i) requires OCS to
“identify, recruit, process, and approve a qualified person or family for an adoption
whenever a petition to terminate a parent’s rights to a child is filed,” and OCS filed its
petition to terminate Nora’s parental rights to Nadia and Tia before Irma asked the
superior court to review OCS’s denial of her second and third requests for placement; (2)
in December 2011, OCS changed its proposed permanency goal for the girls to a primary
goal of adoption with a concurrent goal of reunification (the superior court approved this
goal in February 2012); and (3) Irma stated in a letter to the superior court that she was
“asking to adopt” her granddaughters.
             The State likens this case to Tununak, where we determined that the
superior court properly construed a placement request made in a CINA proceeding as a
request for adoption.      In that case we noted that “even though the placement
determination took place in the context of a CINA proceeding, it is clear that the parties
were essentially contesting — and the superior court was essentially determining —
adoptive placement.”9 But important factors distinguish Tununak from the present case.




      8
             Native Vill. of Tununak v. State, Dep’t of Health & Social Servs., Office of
Children’s Servs., 303 P.3d 431, 444-45 (Alaska 2013). The review hearing provision
of AS 47.14.100(m) applies to requests for adoptive placement made under AS
47.10.088(i) as well as to requests for CINA placement made under AS 47.14.100(e).
      9
             Id. at 443.

                                           -8-                                      6841

              In Tununak, an adoption proceeding was pending in the superior court
when the court determined the child’s placement.10 The child’s foster parents, with
whom the child had been living for more than two years, had filed a petition to adopt the
child before the placement question was resolved.11          The superior court did not
consolidate the adoption and CINA cases, but it stayed the adoption proceeding pending
resolution of the CINA placement issue and it “stated that the future adoption proceeding
would be dependent on the placement ruling in the CINA case.”12 The superior court
stated that the party contesting OCS’s placement decision would not be allowed “two
bites at the apple,” by first contesting placement in the CINA proceeding and then, if it
lost that challenge, by contesting placement in the adoption proceeding.13 As we noted,
the superior court’s order “denied the Tribe’s objections to adoptive placement and
cleared the way for the Smiths to adopt Dawn.”14 Thus, it was clear in that case that the
issue being contested at the placement review hearing was the child’s placement for
adoption.15




       10
              Id. at 433.
       11
              Id. at 435.
       12
              Id. at 435, 443.
       13
              Id. at 443.
       14
              Id. at 439.
       15
              The Smiths’ adoption of Dawn was finalized a few months after the
superior court issued its decision approving the Smiths as Dawn’s placement. Id. at 439­
440. We note that in an analogous case, C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001),
a foster care placement morphed into an adoptive placement when the superior court
terminated the parents’ parental rights and the children’s foster parents filed petitions to
adopt the children.

                                            -9-                                       6841

             In the present case no adoption proceeding has been initiated. Neither Irma
nor the girls’ foster parents have filed an adoption petition or otherwise taken steps
toward adopting the girls. At the conclusion of the termination trial on December 5,
2012, the superior court terminated Nora’s parental rights to the girls. At the time, the
court approved the girls’ recently changed foster family as a CINA placement, in the
process noting that because the children had been placed with the new family for only
a short time their placement could not yet be considered a placement for adoption.16 On
remand the superior court should consider Irma to have asked OCS to place the children
with her for CINA purposes under AS 47.14.100(e), not as having asked OCS to approve
her adoption of the children.
      C.     The State’s Remaining Arguments Are Unavailing.
             The State argues that res judicata or equivalent principles of finality bar
Irma’s appeal of the superior court’s December 17, 2012 denial of her request for a
hearing because Irma did not appeal from the superior court’s July 3, 2012 or November
8, 2012 denials of her requests for hearing. But OCS did not raise this issue in the
superior court, nor did that court rely on this reasoning when it denied Irma’s second or
third requests for hearing.17 Instead, the court stated that Irma could renew her request
if she provided factual support for her allegations of OCS wrongdoing, which she

      16
              The superior court stated that it was approving the girls’ new home “as a
permanent placement, but I don’t think anybody is so cavalier or foolhardy as to think,
well, we’re going to immediately petition for adoption in this case, when the children
have only been in that home for a few weeks.” The court noted that its decision was not
intended as a decision on Irma’s placement motion, which was not yet ripe. At a hearing
in January 2013 the superior court noted that adoption continued to be the appropriate
permanency goal for the girls, but that its decision whether their existing placement was
appropriate for adoption remained months away.
      17
            Indeed, OCS itself requested a judicial hearing on Irma’s second request
for placement.

                                          -10-                                     6841

claimed to have done later that month. In addition, OCS’s denial of Irma’s second
request for placement was based on different considerations than its denial of her first
request.18 Thus, OCS’s assertion that circumstances were unchanged from one request
to the next conflicts with its own assertions in decisional documents.
              There may be some merit to the State’s argument that a family member
should not receive multiple hearings on the same placement request. But we have noted
that courts should proceed cautiously when applying doctrines of finality in children’s
cases because “the circumstances in a child’s life are ever-changing and . . . the court’s
focus must be on the child’s welfare.”19 Here, Irma did not receive a review hearing on
any of her requests. Under these circumstances, we conclude that res judicata did not bar
Irma’s most recent request for a hearing.
              Finally, the State argues that we should affirm the superior court’s denial
of Irma’s request for a review hearing because Irma’s allegations would not be sufficient
to overturn OCS’s placement decision. We reject this argument. As noted above, the
burden at a placement review hearing is on OCS to justify its denial of an adult family
member’s request for placement; the burden is not on the adult family member to prove
that OCS’s denial was erroneous.
              Furthermore, the State incorrectly characterizes Irma’s challenge to OCS’s
decision as only involving her history in an OCS case concerning children other than


         18
              OCS’s letter denying Irma’s first request stated as its sole ground that Irma
had a “prior CPS history that was substantiated.” Its letter denying Irma’s second
request contained a half-page recitation of grounds, including concerns about Irma’s
personality, her alleged co-dependent relationship with her adult children, her
willingness and ability to protect the children from Nora, and her having allegedly
relayed to the foster parents threats that Nora had reportedly made against them.
         19
              Kent V. v. State, Dep’t of Health & Soc. Servs., 233 P.3d 597, 601 (Alaska
2010).

                                            -11-                                     6841

Nadia and Tia.20 One of the main factors upon which both OCS and the superior court
relied in this case was Irma’s purported co-dependent relationship with Nora, and her
perceived inability or unwillingness to protect the girls from Nora. Irma clearly intended
to challenge that factor when she informed the court that she had obtained a protective
order against Nora, had banned Nora from her home, and had not allowed Nora to have
unsupervised contact with Nadia and Tia’s biological older sibling, a child whom Irma
had adopted.21
V.    CONCLUSION
             For the foregoing reasons, we REVERSE the superior court’s order denying
Irma’s request for a placement review hearing and REMAND this matter to the superior
court with instructions to hold a hearing to review the OCS decision.




      20
             We agree with the State that the record in the present case “contains scant
evidence about the proceedings in that separate case.” Should the parties deem such
evidence relevant to Irma’s request, they may present it to the superior court on remand.
      21
              We agree with the State that Irma did not adequately brief her summary
argument that Nadia and Tia should be placed in Irma’s home because of the presence
there of the girls’ biological sibling — Irma’s adopted son — and we therefore decline
to address that argument.

                                          -12-                                      6841
