Blythe P. v. State

• Docket Number: Supreme Court No. S-18296
• Decision Date: 10 February 2023
• Parties: BLYTHE P., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
• Court: Alaska Supreme Court

524 P.3d 238

BLYTHE P., Appellant,

v.State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Supreme Court No. S-18296

Supreme Court of Alaska.

February 10, 2023

Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellant.

David A. Wilkinson, Senior Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.

Margaret McWilliams, Assistant Public Advocate, Juneau, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem.

Before: Winfree, Chief Justice, Maassen, Borghesan, and Henderson, Justices. [Carney, Justice, not participating.]

OPINION

BORGHESAN, Justice.

I. INTRODUCTION

When the Office of Children's Services (OCS) decides to transfer a child in its custody from one out-of-home placement to another, a party may seek judicial review of that decision. According to statute, the superior court shall deny the proposed transfer if the party "prove[s] by clear and convincing evidence that the transfer would be contrary to the best interests of the child."¹ OCS argues that in some circumstances the party challenging a proposed transfer must also show it is an abuse of discretion, such as when OCS seeks to transfer the child to a statutorily preferred placement² or due to licensing concerns with the existing placement.³ Because there is no basis in statutory text or legislative history to supplant the standard of review chosen by the legislature with a standard more deferential to OCS, we decline to do so. And because we mistakenly applied abuse of discretion review in State, Department of Health & Social Services, Office of Children's Services v. Zander B. ,⁴ we overrule that decision to the extent it is inconsistent with this opinion.

II. FACTS AND PROCEEDINGS

A. Facts

Blythe and Danny are the parents of three-year-old Gene.⁵ Blythe has two other children, Gene's half siblings, with a man named Timothy. Timothy has custody of those other children; they live with him and his parents, Robert and Vivian.

In January 2021 OCS filed a non-emergency petition to adjudicate Gene a child in need of aid due to concerns about Blythe's and Danny's mental health and substance abuse. Later that month OCS removed Gene from his parents and placed him with Robert and Vivian. Robert and Vivian consider themselves Gene's grandparents, though they are not related to him by blood or marriage. At the time they agreed to care for Gene they did not know what being a licensed foster parent entailed. But they expressed willingness to do what was necessary to ensure Gene's safety.

Because Robert and Vivian were not legally related to Gene, they were required by law to obtain a foster care license.⁶ They applied for an emergency license, listing Timothy and his two children as household members. Timothy, who had been living with his two children at his parents' house, had a criminal history that included barrier crimes. OCS's licensing division informed Robert and Vivian that Timothy could not live in their home unless they received a variance.⁷ Timothy agreed to live in an apartment above his church. OCS then approved Robert and Vivian's emergency foster care license.

OCS's initial assessment caseworker reviewed the foster care rules and requirements with Robert and Vivian. The caseworker initially permitted Timothy to transport Gene to and from appointments and visitation to help support Robert and Vivian. But OCS licensing took the position that Timothy could not be around Gene without supervision due to his barrier crimes.

In May OCS licensing began investigating concerns that Timothy continued to have unsupervised contact with Gene. Later that month Timothy brought Gene to a visit, where the new caseworker observed that Gene seemed "more lethargic" and had a mark on his head that concerned her. Worried that Gene may have suffered a head injury, the caseworker contacted Vivian. Vivian said she was out of town, but that a babysitter, Robert, and Timothy were caring for Gene and that he had fallen off a swing. The caseworker then reminded Timothy that he could not transport Gene alone; in response, Timothy became "extremely upset."

Beginning to suspect that Robert and Vivian were "not aligned" with OCS and were not being truthful, the caseworker and an OCS licensing specialist visited Robert and Vivian's home unannounced. Nobody answered the front door. The OCS workers heard a door slam, which sounded like it came from a recreational vehicle in the back of the property. Then they saw Timothy coming toward them. Thinking Timothy looked angry, and feeling unsafe, both OCS workers left the property.

The caseworker and the licensing specialist called Vivian, who was out of town at the time. According to the OCS workers, Vivian stated that Timothy was living in the recreational vehicle and used the home only to cook, use the toilet, and visit the children when someone else was home. Vivian said she was not aware that Timothy was not allowed to live on the property. The licensing specialist explained to Vivian that Timothy's living on the property was a violation of the foster care rules.⁸

OCS removed Gene from Vivian and Robert's home. It transferred Gene to Kathryn, a cousin by marriage on his father's side of the family. OCS licensing then closed Robert and Vivian's foster care license.

B. Proceedings

In early June 2021 Blythe sought judicial review of Gene's placement transfer under Child In Need Of Aid (CINA) Rule 19.1(b).⁹ Blythe argued that it was not in Gene's best interests to be separated from his siblings and familiar caretakers. Blythe also challenged OCS's characterization of Kathryn as an adult family member and therefore preferred placement¹⁰ because Kathryn is not biologically related to Gene.

Robert, representing himself, then filed a motion to challenge the placement transfer. A week later Robert, Vivian, and Timothy, represented by counsel, moved to join Blythe's challenge to the placement transfer. They argued that Gene's removal from their care was not in his best interests because he had a close bond with them. They also argued that due to Gene's close bond with his half-siblings, transferring him violated OCS's policy to keep siblings together.

The superior court held a multi-day placement review hearing over five months. In closing Blythe argued there was clear and convincing evidence that the transfer was contrary to Gene's best interests and that OCS had not made reasonable efforts to place the siblings together. Vivian and Robert argued that removing Gene from Robert and Vivian's home based on Timothy's presence was an abuse of discretion because OCS had represented to them that a variance was unnecessary for Timothy to live on their land and transport Gene.

The superior court affirmed OCS's decision. The court's written order contained two separate conclusions.

First, the court determined that OCS did not abuse its discretion when it removed Gene from Vivian and Robert's home. Applying the statutory placement preferences, the court determined that Kathryn was an adult family member and Robert and Vivian were family friends. Based on those classifications the court ruled that Kathryn had legal priority over Vivian and Robert and that Vivian and Robert failed to show clear and convincing evidence of good cause to deviate from this placement preference.¹¹

Second, the court ruled that placement with Kathryn was "appropriate" and in Gene's best interests. The court found that Gene was "doing well" in Kathryn's home. It found that Kathryn allowed Gene to spend more time with his father and that Gene was having quality time with his half-siblings. The court also found that it would not be good to "bounce [Gene] from one placement to another."

Blythe appeals the court's decision to affirm the placement transfer.¹²

III. STANDARD OF REVIEW

This appeal primarily concerns the standard a court must apply when reviewing OCS's proposal to transfer a child in its custody from one out-of-home placement to another. This is an issue of statutory interpretation and therefore a question of law, which we review de novo, "adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy."¹³ Whether a superior court's factual findings satisfy the applicable requirements of the CINA statutes and rules is reviewed de novo.¹⁴

IV. DISCUSSION

A. Regardless Whether This Case Is Moot, We Address The Merits Under The Public Interest Exception To The Mootness Doctrine.

OCS argues this appeal is moot because Gene was placed in a trial home visit with his father while the appeal was pending. "A claim is moot if it is no longer a present, live controversy, and the party bringing the action would not be entitled to relief, even if it prevails."¹⁵ OCS points out that even if we reversed the superior court's order upholding the placement transfer, Blythe would not obtain the relief she seeks because Gene would remain with his father.¹⁶

We need not decide whether this claim is moot because, even if it were, we would decide it on public interest grounds.¹⁷ "[W]e use our discretion to determine whether the public interest dictates that immediate review of a moot issue is appropriate."¹⁸ The public interest exception to mootness requires that we consider three factors: "(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine."¹⁹ No one factor is dispositive.²⁰

The question presented here meets all three factors of the public interest exception. First, the proper standard of review for OCS's decision to transfer a child from one placement to another is an issue that will arise frequently.

Second, this issue is likely to routinely evade review because foster care placements are...