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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. S.S.M v. State (6/16/00) sp-5285

S.S.M v. State (6/16/00) sp-5285

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


S.S.M.,                       )
                              )    Supreme Court No. S-9381
             Appellant,       )
                              )    Superior Court Nos.
     v.                       )    4FA-91-182 CP
                              )    4FA-96-170 CP  
STATE OF ALASKA, DEPARTMENT   )
OF HEALTH AND SOCIAL SERVICES,)
DIVISION OF FAMILY AND YOUTH  )    O P I N I O N
SERVICES,                     )    
                              )    [No. 5285 - June 16, 2000]         
            Appellee.         )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances:  Kenneth C. Kirk, Anchorage, for
Appellant.  Nora King, Assistant Attorney General, Fairbanks, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          PER CURIAM


I.   INTRODUCTION
          A child in need of aid was placed with foster parents for
ostensibly adoptive purposes.  His twenty-year-old natural sister
unsuccessfully asked the superior court that he be placed with her
under AS 47.14.100(e).  Because there was a dispute about whether
the child's current placement was actually for adoptive purposes,
we hold that AS 47.14.100(f) does not prevent the sister as a
matter of law from seeking preferential placement under subsection
.100(e).  We therefore vacate the order denying the sister's motion
and remand.
II.  FACTS AND PROCEEDINGS
          S.S.M. is J.M.'s natural sister.  J.M. was adjudicated a
child in need of aid in 1993.  In 1996 J.M.'s parents' parental
rights were ordered terminated, and he was committed to the state's
custody for "adoptive purposes."  As of June 1999 he was living
with a foster family, with the asserted expectation of the Alaska
Division of Family and Youth Services (DFYS) and the foster parents
that the foster parents would adopt J.M.  S.S.M. was then nineteen
years old.  S.S.M. asserted, and no one disputes, that she has been
an emancipated adult since June 6, 1996. 
          In July 1999 S.S.M. filed a pro se "Motion to Place Child
with Relative" in J.M.'s existing superior court CINA proceeding.
S.S.M. asserted in her motion that, despite her repeated requests
to DFYS to establish contact with J.M., DFYS refused to consider
her for relative placement.  She also asserted that she was able to
properly provide for J.M. and that placement with her would be in
J.M.'s best interests.  She finally asserted that DFYS failed to
demonstrate that the relative placement preference of AS
47.14.100(e) did not apply. 
          J.M.'s Guardian ad Litem (GAL) opposed S.S.M.'s motion,
arguing that S.S.M. and J.M. have a sibling relationship, not a
parental relationship; that it was "not clear" that S.S.M. could
provide an appropriate placement; and that it was contrary to
J.M.'s best interests to be placed with his sister.  DFYS joined
the GAL's opposition and also argued that the authority cited by
S.S.M. "excludes placement of children placed in department custody
for adoptive purposes."  S.S.M. filed a reply in which she again
asserted that the relative placement preference of AS 47.14.100(e)
applied.  She argued that J.M. was not placed in DFYS custody for
adoptive purposes because six years had passed with no adoption and
because no adoption could be "reasonably expected for a 14 year old
boy." 
          The superior court denied S.S.M.'s motion on August 31,
1999.  In September the court denied S.S.M.'s motion to reconsider.
Now represented by counsel, S.S.M. appeals.
III. DISCUSSION
     A.   Standard of Review
          In a CINA case, we will overturn the superior court's
findings of fact only if they are clearly erroneous. [Fn. 1] 
Whether the trial court's findings comport with the requirements of
the CINA statutes and rules is a question of law which we review de
novo. [Fn. 2]  We exercise our independent judgment when
interpreting a civil rule. [Fn. 3]  Statutory interpretation raises
questions of law to which we apply our independent judgment. [Fn.
4]  We must adopt the rule of law that is most persuasive in light
of precedent, reason, and policy. [Fn. 5]
     B.   Jurisdiction
          We first consider, and reject, DFYS's argument that we
have no jurisdiction to consider S.S.M.'s appeal.  DFYS asserts
that there is no final, appealable order which would satisfy Alaska
Appellate Rule 202(a). 
          The superior court denied S.S.M.'s motion.  Given the
reasons raised by the GAL and DFYS in opposing S.S.M.'s motion, we
assume that the court rejected the motion on the merits, not for
any procedural deficiency.  
          As to S.S.M., the court's ruling was final and on the
merits. [Fn. 6]  It left nothing further for the court to do with
respect to her motion for J.M.'s placement.  J.M.'s CINA proceeding
remains open, but, absent a change in the placement plan for J.M.,
the placement goals for J.M. would not change, and he would not be
placed with S.S.M., but would continue to be placed awaiting
adoption.  We have recognized in context of children's proceedings
that issues may sometimes be revisited without destroying the
finality, and therefore the appealability, of other issues. [Fn. 7] 
We hold that the order denying S.S.M.'s placement motion is final
for purposes of appellate review. 
     C.   Intervention
          The superior court had previously returned to S.S.M.
papers she had submitted to the court for filing and noted that her
proper procedure was to intervene in J.M.'s superior court CINA
proceeding.  S.S.M. never moved to intervene, and instead simply
moved for placement.  But as DFYS conceded at oral argument on
appeal, S.S.M. is effectively a party by virtue of this appeal.  It
is not obvious how any valid objection could be asserted to
S.S.M.'s de facto intervention in J.M.'s CINA proceeding, given her
invocation of subsection .100(e).  Neither the GAL nor DFYS opposed
S.S.M.'s 1999 motion on procedural grounds that she was not
entitled to intervene.  Given DFYS's concession on appeal, and the
failure to raise any objection on this procedural ground in 1999,
we hold that S.S.M. is entitled to intervene as of right on remand.
[Fn. 8]
     D.   Application of AS 47.14.100(e) to S.S.M.
          Alaska Statute 47.14.100(e) gives preference to a blood
relative who requests placement of a child in need of aid, absent
three exceptions. [Fn. 9]  In pertinent part, the statute provides
that "a child may not be placed in a foster home or in the care of
an agency or institution providing care for children if a relative
by blood . . . requests placement of the child in the relative's
home." [Fn. 10]  The statute lists three exceptions:  DFYS may not
place the child with the requesting relative if DFYS determines (1)
that placement with the relative will result in physical or mental
injury, (2) that a member of the relative's household was the
perpetrator in a substantiated report of abuse, or (3) that a
member of the relative's household has been arrested or convicted
of a serious offense. [Fn. 11]
          S.S.M. argues that AS 47.14.100(e) requires DFYS to place
J.M. with her because she is a blood relative.  She asserts that
none of the three statutory exceptions in subsection .100(e)
applies to her and that therefore DFYS had no legal option but to
place J.M. with her.
          But AS 47.14.100(f) renders the relative placement
preference created in AS 47.14.100(e) inapplicable to "child
placement for adoptive purposes." [Fn. 12]  DFYS relies on
subsection .100(f) as justification for not placing J.M. with
S.S.M.  In substance, DFYS argues that J.M. was committed to
department custody for adoptive purposes and that subsection
.100(f) therefore controls, making subsection .100(e) inapplicable. 
DFYS does not argue that any of the three exceptions in subsection
.100(e) applies to S.S.M., nor does it argue that it has made
administrative findings that any of the three exceptions applies to
her.  DFYS's argument that S.S.M.'s superior court motion was not
an administrative appeal implies that DFYS believes it has never
had an opportunity to decide whether the subsection .100(e)
exceptions might apply to S.S.M.
          DFYS also argues that S.S.M. has no standing, because she
was not a party to the child's proceeding, and that in any event
the superior court did not have authority to order placement
because only DFYS has authority to order placement.
          S.S.M. clearly has sufficient interest in the proceeding
to have standing to assert rights under AS 47.14.100(e).  Whether
her claims are meritorious remains to be seen.  And given the
confusion a pro se litigant in S.S.M.'s position justifiably would
have felt concerning the appropriate procedure, it is irrelevant to
this appeal that DFYS, not the superior court, is primarily
responsible for placing a child in a CINA proceeding.  A DFYS
placement decision is ultimately a matter for superior court
review. [Fn. 13]  And indeed, in arguing that subsection .100(f)
applies here, DFYS relies on the superior court's May 8, 1996,
order committing J.M. to the custody of the state for adoptive
purposes. 
          The proper application of AS 47.14.100 to this case turns
on the correct interpretation of these words in subsection .100(f):
"Nothing in this subsection or in (e) of this section applies to
child placement for adoptive purposes." [Fn. 14]
          This case does not require us to explore the full import
of the emphasized words.  The superior court order of May 8, 1996
committed J.M. to the state's custody for "adoptive purposes
. . . ."  The intention then was to place J.M. in a permanent home. 
As of May 8, 1996, that placement was logical, given that the court
had terminated the parental rights of J.M.'s parents, and no
relative had requested placement under subsection .100(e).  S.S.M.
had turned sixteen only three weeks before, and she did not become
emancipated until June 1996.  There is no indication that S.S.M.
had sought, or was then arguably competent to seek, J.M.'s
placement when the court entered its May 8, 1996, order.  
          Although the record would permit an inference that, as of
1999, J.M. had been placed in a foster home with an intention that
those foster parents adopt him, S.S.M. vigorously disputed the
likelihood that J.M. would actually be adopted.  She noted in the
superior court that J.M. was already fourteen years old and that no
adoption had taken place in the six years after J.M. was removed
from his parental home in 1993, or since entry of the court's May
8, 1996, order committing J.M. to the state's custody for adoptive
purposes.  S.S.M. therefore asserted that, notwithstanding the 1996
order, no adoption was actually anticipated.
          S.S.M.'s assertions squarely raise a question whether
J.M. was actually to be adopted by the foster parents with whom he
was living in 1999 when S.S.M. moved for placement.  The record
does not establish whether S.S.M. had any opportunity to
participate in any decision to place or continue to place J.M. for
adoption with these or other foster parents; S.S.M. argues on
appeal that she did not have that opportunity.  Moreover, DFYS
reported to the court in September 1999 that the then-current
foster family no longer considered J.M.'s placement to be
permanent.  It is unclear when the foster family made that decision
or whether that is still their decision, but DFYS's report implies
that their decision was based on behavior of J.M. that began in
August 1999, soon after S.S.M. filed her placement motion. 
          There is consequently a fact question about the actual
purpose of J.M.'s placement at the time that S.S.M.'s placement
motion was before the superior court.  
          We consider this question to raise a material dispute
because we read AS 47.14.100(f) to require a specific nexus between
the existing placement and the ultimate purpose of adoption; we do
not read the statute to mean that a "placement for adoptive
purposes" automatically exists merely because DFYS hopes to
eventually find adoptive parents.  The basic model of a "placement
for adoptive purposes" within the meaning of subsection .100(f)
would seem to entail placement of a child with adults who wish to
adopt the child.  We do not suggest that this is necessarily the
exclusive meaning of the phrase.  But the statute must be read to
contemplate some reasonable likelihood of an adoption in the near
future, otherwise the relative placement preference of subsection
.100(e) could be overcome at the whim of DFYS.
          The May 8, 1996, order committing J.M. to the state's
custody for "adoptive purposes" seems not to have approved a
particular proposed plan for an adoption in the near future.  The
order could be read to imply that there was no such plan then in
place, because the order required DFYS to report annually to the
court on the state's efforts to place the child in a permanent
home.  Given DFYS's September 1999 report to the superior court, it
appears that J.M. might not presently be in a placement for
"adoptive purposes" as that phrase is used in subsection .100(f),
even though DFYS presumably intends that J.M. will ultimately be
adopted. 
          We do not read AS 47.14.100 to cut off any possible
subsequent requests by a blood relative for placement of a child in
need of aid after the superior court commits the child to the
state's custody with the goal of adoption.  It is the specific
purpose of the DFYS placement, not the general purpose of the
custody granted to DFYS, that is important under subsection
.100(f).  The superior court only grants legal "custody" to DFYS,
whereas DFYS makes all initial "placement" decisions. [Fn. 15] 
Thus subsection .100(f)'s "placement for adoptive purposes"
language refers to DFYS's specific decisions concerning "placement"
of a child in its custody, not to the court's threshold decision to
give DFYS "custody" over the child. 
          DFYS's reading of AS 47.14.100 would prevent a fully
qualified blood relative from seeking placement under subsection
.100(e) despite long-standing, unsuccessful attempts at permanent
placement. 
          Consequently, on remand the superior court must determine
whether J.M.'s placement with his foster family is actually for
adoptive purposes.  If it is not, subsection .100(f) does not
disqualify S.S.M. from seeking preferential placement under
subsection .100(e).  
IV.  CONCLUSION
          For these reasons, we VACATE the August 31, 1999, order
denying S.S.M.'s motion requesting the state to place J.M. with her
and REMAND for further proceedings consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     See In re S.A., 912 P.2d 1235, 1237 (Alaska 1996). 


Footnote 2:

     See E.M. v. State, 959 P.2d 766, 768 (Alaska 1998).


Footnote 3:

     See Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991).


Footnote 4:

     See Brandon v. State, Dep't of Corrections, 938 P.2d 1029,
1031 (Alaska 1997).


Footnote 5:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 6:

     See Greater Anchorage Area Borough v. City of Anchorage, 504
P.2d 1027, 1030 (Alaska 1972), overruled in part on other grounds
by City of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979).


Footnote 7:

     We have allowed appeals at various stages of CINA proceedings,
albeit often without challenge.  See, e.g., In re J.A., 962 P.2d
173, 175 (Alaska 1998) (appeal from probable cause determination);
In re J.W., 921 P.2d 604, 606 (Alaska 1996) (appeal after
termination of parental rights); In re A.S.W., 834 P.2d 801, 803
(Alaska 1992) (appeal after disposition hearing); In re A.B., 791
P.2d 615, 617 (Alaska 1990) (appeal from superior court decision
rendered on annual review of placement order).


Footnote 8:

     See Alaska R. Civ. P. 24(a). 


Footnote 9:

     AS 47.14.100(e) provides:  

          (e)  A child may not be placed in a foster
home or in the care of an agency or institution providing care for
children if a relative by blood or marriage requests placement of
the child in the relative's home.  However, the department may
retain custody of the child and provide for its placement in the
same manner as for other children if the department
               (1)  makes a determination, supported by
clear and convincing evidence, that placement of the child with the
relative will result in physical or mental injury; in making that
determination, poverty, including inadequate or crowded housing, on
the part of the blood relative, is not considered prima facie
evidence that physical or emotional damage to the child will occur;
this determination may be appealed to the superior court to hear
the matter de novo;
               (2)  determines that a member of the
relative's household who is 12 years of age or older was the
perpetrator in a substantiated report of abuse under AS 47.17; or
               (3)  determines that a member of the
relative's household who is 12 years of age or older is under
arrest for, charged with, has been convicted of, or has been found
not guilty by reason of insanity of, a serious offense;
notwithstanding this paragraph, the department may place or
continue the placement of a child at the relative's home if the
relative demonstrates to the satisfaction of the department that
conduct described in this paragraph occurred at least five years
before the intended placement and the conduct
               (A)  did not involve a victim who was
under 18 year [sic] of age at the time of the conduct;
               (B)  was not a crime of domestic violence
as defined in AS 18.66.990; and    
               (C)  was not a violent crime under AS
11.41.100 - 11.41.455 or a law or ordinance of another jurisdiction
having similar elements. 


Footnote 10:

     AS 47.14.100(e).


Footnote 11:

     See AS 47.14.100(e)(1)-(3).


Footnote 12:

     AS 47.14.100(f) provides:
          
          If a blood relative of the child specified
under (e) of this section exists and agrees that the child should
be placed elsewhere, before placement elsewhere, the department
shall fully communicate the nature of the placement proceedings to
the relative.  Communication under this subsection shall be made in
the relative's native language, if necessary.  Nothing in this
subsection or in (e) of this section applies to child placement for
adoptive purposes.   

(Emphasis added.)


Footnote 13:

     See In re B.L.J., 717 P.2d 376, 379-81 (Alaska 1986) (noting
that superior court can review DFYS placement decisions for abuse
of discretion).


Footnote 14:

     AS 47.14.100(f) (emphasis added).  


Footnote 15:

     See AS 47.10.080(c)(1)-(3), (f); In re B.L.J., 717 P.2d at
379-81.