Celia W. v. State, Dep't of Health & Soc. Servs, Office of Children's Servs., Supreme Court S-17954

CourtSupreme Court of Alaska (US)
Docket NumberSuperior Court 4FA-19-00135 CN,Supreme Court S-17954
Decision Date15 September 2021

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Earl A. Peterson, Judge.

Mila A. Neubert, Neubert Law Office, LLC, Fairbanks, for Appellants. Laura Wolff, Assistant Attorney General Anchorage, Mary Ann Lundquist, Assistant Attorney General Fairbanks, and Treg R. Taylor, Attorney General, Juneau, for Appellee State of Alaska, Department of Health & Social Services, Office of Children's Services.

Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellee Kira A. Megan C. Comolli Assistant Public Advocate, Fairbanks, and James Stinson PublicAdvocate, AnchorageforAppellee Reggie A. Nikole V. Schick, Assistant Public Advocate, Fairbanks, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem.

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


The grandparents of a child in foster care argue that the Office of Children's Services (OCS) should have placed their grandson with them instead of with the non-relative foster family that was caring for the boy's brother. Alaska Statute 47.14.100(e) requires OCS to place a foster child in the care of an adult relative absent clear and convincing evidence of good cause to deviate from that requirement. The grandparents argue that OCS lacked the requisite good cause and that the superior court erred in its review of OCS's placement decision.

We conclude that OCS has shown clear and convincing evidence of good cause to deviate from the statutory placement preferences. Our conclusion rests on the superior court's findings about the strength of the child's bond with his brother and the relative weakness of his relationship with his grandparents. We therefore affirm.


In July 2019 OCS filed an emergency petition for temporary custody of Dylan, [1] then seven years old. OCS had already taken custody of Dylan's thirteen-year-old adoptive brother, Derek, based on evidence of physical and sexual abuse by the boys' parents.

The superior court found probable cause to believe that Dylan was a child in need of aid and granted temporary custody to OCS. OCS then placed Dylan in a non-relative foster home. In December 2019 Dylan's parents stipulated that he was a child in need of aid and agreed to temporary OCS custody.

Dylan's aggression toward other children in his foster home led the foster family to ask OCS to find a new placement for Dylan. Dylan's maternal grandmother, Celia, requested that Dylan be placed with her and his grandfather, Boyd. Family friend Ralph - who was then fostering Dylan's brother Derek[2] - also requested placement. OCS opted to place Dylan with Ralph.

OCS denied Celia's request for placement because, as explained in a June letter, it found that the grandparents were "not aligned with the identified safety threats," that they "question[ed] the integrity of the disclosures [of sexual abuse]," that Boyd was "not aligned with the need for [Dylan] to continue therapy," and that Boyd had failed to disclose past criminal convictions.

Dylan's mother Kira opposed the change in placement and requested a hearing under Alaska Child In Need of Aid Rule 19.1(b).[3] The superior court postponed the hearing while OCS reconsidered placement with the grandparents. After reconsideration, OCS stuck by its May decision and placed Dylan with Ralph in late June. OCS argued that placement with Ralph was in Dylan's best interests because it would: (1) place him with his brother; (2) keep him in the same community and school; and (3) keep him close to his parents for visitation. Dylan's therapist and guardian ad litem both supported placement with Ralph, and Dylan said he wanted to live with his brother in Ralph's home.

The superior court held a placement review hearing over three days in July, hearing testimony from the OCS caseworker, Kira, both grandparents, and Dylan's therapist. The superior court affirmed Dylan's change of placement in early August. The court summarized the witness testimony and made specific findings of fact. The court found by clear and convincing evidence that it was in Dylan's best interests to be "placed in a foster home with [Derek]." The court found "by a preponderance of the evidence that [Dylan did] not have a historically strong relationship with the [grandparents] and the [grandparents] do not fully appreciate the type of household and parenting style that [Dylan] needs such that it is not in [Dylan's] best interests to place him with the [grandparents]."

The court explained that Kira had not carried her burden to prove by clear and convincing evidence that placing Dylan in Ralph's home was not in Dylan's best interests.[4] Instead the court found by clear and convincing evidence that this placement was in Dylan's best interests. The court relied on the therapist's "credible and compelling testimony that [Dylan's] best interests are served by being placed with his older brother and by being placed with an active family." The court dismissed Kira's "testimony about how being placed with [Ralph] could be detrimental to [Dylan]" as "speculative."

The grandparents attended all three days of the July hearing. Before the second hearing day, they requested review of the denial of their placement request. The superior court held their request for review in abeyance until they could obtain counsel. The grandparents' attorney filed an entry of appearance in November, and the hearing on the grandparents' motion began that same day.

The hearing on the grandparents' motion spanned five days. The court heard testimony from Kira, Ralph, Dylan's therapist, both grandparents, and an expert witness for the grandparents.

The superior court affirmed OCS's denial of the grandparents' request for placement. The court first summarized the testimony at the November hearing and then adopted the findings and conclusions of its August order.

The court then fully quoted the relevant parts of AS 47.14.100(e):
The department shall place the child, in the absence of clear and convincing evidence of good cause to the contrary,
(3) with, in the following order of preference,
(A)an adult family member;
(B)a family friend who meets the foster care licensing requirements established by the department . . . .

The court also explained that AS 47.14.100(m) "guides the court on what may and may not be considered good cause."[5]

Considering these statutes, the court found "by clear and convincing evidence that OCS did not abuse its discretion in denying placement of [Dylan]" with the grandparents. In support of this conclusion, the court emphasized the benefits of placement with Ralph: (1) Dylan is with his brother, which is what Dylan wanted; (2)placement with Ralph involves "doing all of the things one might think of a family and child doing, even in light of the ongoing pandemic, while still maintaining contact with his parents and grandparents through visitation"; (3) Dylan is "getting the mental health treatment he appears to need"; and (4) he remains in the same school, same community, and with access to the same religious services as before removal.

The court acknowledged that this placement is a deviation from the statutory preference, but concluded that "good cause is shown by the evidence before the court for this variance." The court acknowledged that an error in classification of Boyd's criminal history had contributed to the initial denial of placement but still found good cause for deviation. In support of this finding, the court noted: (1) Boyd had "no prior relationship" with Dylan; (2) Celia "had only had passing contact with [Dylan]"; (3)Ralph was a close personal friend of the family; (4) "issues were raised in May and June that the [grandparents] questioned the allegations and safety needs in this case"; (5) "questions surrounded the [grandparents'] understanding of [Dylan's] mental heath needs and their willingness to provide for those needs"; (6) both Dylan's therapist and the grandparents' expert "opined that the [grandparents] were not ready to take in [Dylan] in June . . . and in fact remain not ready today"; and (7) the court still had "some doubt that [Celia would] not substitute her own values or choices when they are in conflict with choices made by OCS for [Dylan's] well being."

The grandparents appeal from this order.


Both the grandparents and OCS suggest that we review the superior court's ruling as a mixed question of law and fact. In making this suggestion, both parties rely on our recent decision in State, Department of Health & Social Services, Office of Children's Services v. Zander B.[6] But Zander B. is not exactly on point. There OCS followed the statutory placement preference.[7] In that type of case, we review the superior court's factual findings for clear error and use our independent judgment to evaluate the superior court's determination of whether OCS abused its placement discretion.[8]

Here OCS deviated from the statutory placement preference. Although OCS generally has broad discretion in making placement decisions, [9] that discretion is narrowed by the placement preferences established by AS 47.14.100(e). Thus the superior court should not review a deviation from the placement preference for abuse of discretion. Rather the superior...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT