State, Department of Health & Social Services v. Zander B., 103020 AKSC, S-17399

Docket NºS-17399
Opinion JudgeMAASSEN, Justice.
AttorneyMary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau, for Appellant. J.E. Wiederholt, Aglietti, Offret & Woofter, LLC, Anchorage, for Appellees.
Judge PanelBefore: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices. WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.
Case DateOctober 30, 2020
CourtSupreme Court of Alaska



ZANDER B. and KELLY B., Appellees.

No. S-17399

Supreme Court of Alaska

October 30, 2020

Appeal from the Superior Court No. 3PA-17-00077 CN of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge.

Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau, for Appellant. J.E. Wiederholt, Aglietti, Offret & Woofter, LLC, Anchorage, for Appellees.

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


MAASSEN, Justice.


The Office of Children's Services (OCS) took emergency custody of a three-year-old child and placed him with non-relative foster parents. The child had lived with the foster parents for over a year when OCS informed them of its intent to place the child with his grandmother. The superior court allowed the foster parents to intervene in the child in need of aid (CINA) proceedings to contest OCS's placement decision. After a placement review hearing, the court stayed the placement decision, concluding that OCS abused its discretion in deciding to place the child with his grandmother.

OCS appeals, arguing that the superior court erred both by permitting the foster parents' intervention and by finding that OCS abused its discretion in its placement decision. We hold that the court did not abuse its discretion by permitting intervention under the circumstances of this case. We also hold that the court's factual findings were not clearly erroneous and that the court did not err when, based on those findings, it decided that OCS abused its discretion in its placement decision. We therefore affirm the superior court's order staying the placement decision.





In August 2017 OCS took emergency custody of three-year-old Douglas, 1acting on allegations that his mother was using drugs and living with Douglas in a truck. OCS placed Douglas temporarily in foster care with non-relative foster parents, Zander and Kelly B.

Shortly thereafter, Douglas's paternal grandmother, Cassidy, asked that OCS place him with her in Texas. Douglas's father was denied placement in January 2018, and - because of the statutory placement preference for adult family members2 - OCS began considering Cassidy as an option. By June the permanency plan for Douglas's future was adoption. OCS received a positive home study for Cassidy from Texas pursuant to the Interstate Compact on the Placement of Children (ICPC), and it decided to transition Douglas into Cassidy's care.

OCS planned a slow transition, with several visits between Douglas and his grandmother before the child was relocated permanently. Cassidy visited Douglas in Alaska three times between March and November 2018. On November 19 OCS informed Douglas's foster parents of its intent to place Douglas with Cassidy. The change in placement was set for December 11; OCS intended that Cassidy would make one final visit to Alaska and take Douglas back to Texas with her at that time.

In early December the foster parents filed a motion to intervene in the CINA proceedings to contest OCS's placement decision. In their motion the foster parents asserted that they "wish[ed] to adopt [Douglas] as their own," though they had not yet filed an adoption petition. The superior court stayed the relocation in part, permitting Douglas to go to Texas with his grandmother for a "temporary visit" pending the placement review hearing. At the same time the court granted the foster parents' motion to intervene pursuant to Alaska Civil Rule 24(b), noting that their motion for intervention focused on "the same questions of law and fact as the underlying CINA proceeding, what is in the child's best interest."


The Placement Review Hearing

The superior court presided over a three-day placement review hearing beginning in late December 2018 and continuing into January 2019. The foster parents, OCS, and Douglas's biological father called witnesses. Douglas's guardian ad litem (GAL) also participated, supporting OCS's proposed placement with Cassidy.


Testimony of the foster parents' witnesses

Douglas's preschool teacher, an early childhood special education teacher, testified that she had worked with Douglas in the spring of 2018 and became his teacher in the fall. She testified that Douglas was "an extremely high-needs child." When he first started school in the spring he had daily outbursts and could be "extremely aggressive and explosive in his behavior." He directed his tantrums at "adults [who] were trying to . . . alter his routine or make him do something he didn't want to do." Of all the children the teacher had encountered in her 16 years of experience, she placed Douglas "in the one percentile of children with the most extreme difficulties and challenging behaviors." She testified that Douglas was a "force" and could be very physical when trying to have his way: "[Y]ou have to really hold your ground and be consistent and make sure he lives up to your expectations because it's a slippery slope if you start giving him control . . . ." She testified that she never had a student with such extreme trauma, anxiety, and aggression; because of his many challenges, Douglas "was supported by an adult one-on-one" throughout each day.

The teacher testified that Douglas's behavior "dramatically changed" for the worse immediately after visits with Cassidy; he regressed and went into "full panic mode" whenever his foster parents left. She testified that she observed Cassidy with Douglas and did not think Cassidy was able to care for him. She believed that Cassidy did not seem to appreciate the extent of Douglas's emotional challenges and lacked useful strategies to calm him down. She also worried about Cassidy's physical ability to care for Douglas, especially as he got older.

The teacher testified that she was "shocked" when she learned that OCS intended to place Douglas with Cassidy, and she emailed a letter to his OCS caseworker and GAL describing Douglas's dramatic regression after Cassidy's visits. She testified that she received no reply from the OCS caseworker. After Cassidy's second visit, the teacher notified the OCS caseworker that she thought the decision to place Douglas with Cassidy was "[d]evastating." She testified that she reached out to OCS three times to express concern; after the second and third emails, she received responses thanking her and stating that the emails would be put in Douglas's file, but she had no other contact with OCS.

The teacher also testified that the team of professionals who worked with Douglas at school thought placing the child with his grandmother "would be the worst thing they could do for [him]." She predicted that if Douglas returned to her class after spending time with Cassidy without therapy, they would "be starting back at ground zero with extreme behavior 95% of the time."

The superior court also heard the testimony of Douglas's pediatrician. She testified that when she first met Douglas in August 2017 he probably had reactive attachment disorder - an inability to properly form attachments or relationships with others that may appear in children who change homes and caregivers. She testified that Douglas's environmental experiences and past trauma likely contributed to his developmental delays. The pediatrician also testified, however, that Douglas made "remarkable" improvement despite his challenges. When she saw him in June 2018, about ten months after their first encounter, Douglas's development was closer to age-appropriate; he "had obviously gained a couple years of developmental ability in that time." She attributed this improvement to the hard work of all his caregivers and his foster parents. The pediatrician also testified that it would be in Douglas's best interests "to have a good, stable environment . . . like he had, or that he could continue to have with [his foster parents]." She testified that no one from OCS had contacted her about Douglas's placement.

The physical therapist at Douglas's elementary school testified that she had started seeing him in March 2018 and worked with him twice a week that spring and again in the fall. When she first met him, his gross motor skills were delayed and he had some "very significant" behavioral issues; when he was upset he would bite, kick, throw things, run away, scream, and scratch himself and others. She testified that she "developed a behavioral modification program" with the involvement of the foster parents and other caregivers, and that Douglas's improvement over the summer was among the most significant she had seen; when he returned to school in the fall, he was more cooperative and "significantly easier to redirect." She attributed his improvement to "being in a safe, structured, healthy environment." She testified that Douglas met his physical therapy goals and was discharged from her program in November 2018.

The physical therapist also testified that structureand consistency were very important for Douglas and that he benefitted from constant, hands-on attention. She testified that Douglas could continue to progress if he received the care and services he needed while living with his grandmother. She testified that OCS never contacted her about Douglas's placement.

Two occupational therapists who had worked with Douglas also testified. In their opinion, he was negatively affected by visits with Cassidy, with increased anxiety and behavioral issues. One therapist testified that her last session with Douglas on November 28, 2018, was "difficult"; he appeared "very anxious" and "emotionally...

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