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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brynna B. v. State, Dept. of Health & Social Services (03/19/2004) sp-5788

Brynna B. v. State, Dept. of Health & Social Services (03/19/2004) sp-5788

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

BRYNNA B.,                                   )
                              )    Supreme Court No. S-11070
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-02-37 CP
                              )
STATE OF ALASKA,                             )    O P I N I O N
DEPARTMENT OF HEALTH &        )
SOCIAL SERVICES, DIVISION OF       )     [No.  5788 -  March  19,
                                   2004]
FAMILY & YOUTH SERVICES,      )
                              )
             Appellee.                  )
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Eric Smith, Judge.

          Appearances:  B.B., pro se, Wasilla.  Michael
          G.   Hotchkin,  Assistant  Attorney  General,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          Appellant Brynna B.1 unsuccessfully attempted  to  gain

foster  custody of her niece, Jaclyn, a child in need of aid  who

had  been  removed  from the custody of her  mother,  Arlene  B.,

Brynnas  twin  sister.   Brynna claims that  the  superior  court

misinterpreted  AS  47.14.100(e)s relative  placement  preference

provision,  and  thus erroneously failed to  reverse  the  states

refusal  to place Jaclyn in her care.  Because it was not clearly

erroneous  to  find that Brynna would likely ignore  instructions

          not to place Jaclyn with Arlene, and because under the facts of

this  case  this constitutes clear and convincing  evidence  that

placing  Jaclyn with Brynna would result in injury to the  child,

we  conclude that the superior court properly upheld  the  states

refusal to place Jaclyn in Brynnas custody.

II.  FACTS AND PROCEEDINGS

          The  State  of Alaska, Department of Health and  Social

Services,  Division of Family and Youth Services (DFYS)2  removed

six-week-old Jaclyn from Arlenes custody in May 2002.   According

to   DFYS,  medical  providers  had  reported  that,  during  her

pregnancy with Jaclyn, Arlene repeatedly stated that I hope  this

baby  is  dead.   Following Jaclyns birth, DFYS received  reports

from a doctor that Arlene believed that Jaclyn had colic and  had

stopped  feeding her.  The doctor also reported that  Arlene  did

not  understand how to change the babys diapers, despite repeated

instructions, and was scrubbing off the babys dead  skin  instead

of  using  lotion.   Later, Arlene was  reported  to  be  grossly

overfeeding Jaclyn, and said that [t]he only way I can  shut  her

the  hell  up  is to feed her.  Arlene refused to cooperate  with

DFYS staff, requesting that they visit in the middle of the night

because she slept through the day and claiming that [y]ou  people

are  just  out to get me.  Arlene was diagnosed with  depression,

but  refused  to seek professional counseling or take  prescribed

medications.

          Based on the record above, testimony presented by  DFYS

in a hearing on the matter, and the behavior of [Arlene] in these

proceedings,  the  superior court upheld the decision  to  remove

Jaclyn  from Arlenes custody.  The court found probable cause  to

believe  that  Jaclyn  was  a child  in  need  of  aid  under  AS

47.10.011(1) and (11).3  The court also found that DFYS had  made

reasonable  efforts  under the circumstances to  prevent  Jaclyns

removal from Arlenes home.  The court explained:

          continued placement in the home would be  contrary

          to  the  welfare of the child because of the  risk

          posed  to  the  vulnerable infant by  the  mothers

          inability  to  perceive danger to the  child,  her

          inability  to retain information given to  her  on

          care  for  the child, her inability or refusal  to

          follow  directions given to her on  care  for  the

          child,  her anger management problems that pose  a

          risk  to  the  child, and her  refusal  to  accept

          medication  or  counseling for  her  diagnosis  of

          Severe  Major Depression which could  also  affect

          her  ability to adequately care [for] and  protect

          her child.

The  court granted DFYS custody over Jaclyn, who was placed in  a

foster home.

          The  superior  court later upheld  DFYSs  denial  of  a

request by Lottie O., Jaclyns maternal grandmother, to place  the

child  in  her home.  The denial was based on concerns about  the

proximity  of  Lotties residence to Arlenes  residence,  concerns

that  Lottie  would return the child to Arlenes care and  custody

without the departments consent, and concerns about the nature of

Lotties  motivation to cooperate with the departments case  plan.

DFYS instead placed Jaclyn in Hawaii with her father, pursuant to

a  Care  and Safety Plan containing detailed restrictions on  the

contact  that  the  father could allow Arlene to  have  with  the

child.   When Jaclyns father subsequently ignored the  plan,  and

allowed  Arlene  unsupervised care and control of Jaclyn,  Jaclyn

was  removed  from  her  fathers custody,  and  returned  to  her

previous foster home in Alaska.4

          Arlenes twin sister Brynna then requested placement  of

Jaclyn.   DFYS denied her request, based on concerns that  Brynna

and  Arlene  were closely aligned, concerns that if  Jaclyn  were

placed  with  Brynna, the child might once again be subjected  to

improper  and  dangerous contacts with Arlene, and concerns  that

Brynna  would not cooperate with DFYS in obtaining services  that

Jaclyn required.

          The  superior  court  held a hearing  to  review  DFYSs

refusal  to  grant Brynnas placement request.   At  the  hearing,

witnesses  described  how  Brynna had  refused  to  allow  social

workers  into  Arlenes home to remove Jaclyn, had threatened  the

staff  at  Jaclyns  pediatricians office, and had  been  forcibly

removed  from  DFYS  premises and threatened with  arrest,  after

antagonizing  social  workers during a supervised  visit  between

Arlene  and  Jaclyn.  Following the hearing, the court  concluded

that  it  had serious doubts about [Brynnas] ability to care  for

the  child vis-a-vis protection from . . . her sister,  and  work

with  the department.  The court therefore upheld DFYSs placement

decision.  Brynna appeals.

III. STANDARD OF REVIEW

          In  a  child  in  need of aid case, we will  sustain  a

superior  courts  findings  of  fact  unless  they  are   clearly

erroneous.5  Findings of fact are clearly erroneous if  a  review

of  the  entire record in the light most favorable to  the  party

prevailing  below6 leaves us with a definite and firm  conviction

that  a  mistake  has been made.7  Thus, we will  ordinarily  not

overturn   a   superior  courts  findings  based  on  conflicting

evidence.8  The issue of whether a trial courts findings  satisfy

the relevant statutory requirements is a question of law that  we

review  de novo.9  In interpreting child in need of aid  statutes

and  other laws, we apply our independent judgment, adopting  the

rule  of  law  that  is  most persuasive in light  of  precedent,

reason, and policy.10

          A DFYS placement decision is ordinarily reviewed by the

superior court under the abuse of discretion standard.11  In this

case  however,  the normal standards of review are superseded  by

statute.  Alaska Statute 47.14.100(e) provides:

          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
          relatives  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;  . . . this determination  may  be

          appealed to the superior court to hear the  matter

          de novo.

Thus,  DFYS  had  the burden of proving by clear  and  convincing

evidence12  that  placement with Brynna would  be  physically  or

mentally detrimental to Jaclyn.13  The superior court reviews such

a  determination de novo.14  We use our independent  judgment  in

reviewing the superior courts decision.15

IV.  DISCUSSION

     The  Superior Court Properly Upheld the Departments  Refusal
     To Place Jaclyn in Brynnas Custody.
     
          Brynna  claims that, as Jaclyns blood relative, she  is

entitled to custody of Jaclyn under AS 47.14.100(e).16  DFYS  and

the  superior court disagreed.17  The superior court upheld DFYSs

denial  of  Brynnas placement request based on its  determination

that  Brynna  was  unwilling to implement  DFYSs  case  plan  for

Jaclyn.   The court found Brynna unable to work with DFYS  staff.

As  it  explained,  [s]he doesnt trust them.  She  thinks  theyre

racist.   She  doesnt have any belief in the legitimacy  of  what

theyre  doing.  She feels very wronged on behalf of  her  sister.

The  court  conceded  that Brynna is utterly  entitled  to  those

beliefs,  and  that there is no reason why one cant fundamentally

believe  that  the  department  is  doing  the  wrong  thing  and

nevertheless work with the department.  But the court noted  that

this  hasnt been the history of this case to date, and at bottom,

the  track record with respect to [Brynnas] dealings with the key

DFYS  people are that she cant work with them.  Accordingly,  the

court upheld DFYSs denial of placement.

          Brynna  essentially argues on appeal that DFYS did  not

present  adequate evidence that she would fail to  abide  by  the

provisions  of  Jaclyns case plan.18  Brynna has  presented  some

          evidence that she would cooperate with DFYS and follow Jaclyns

case  plan,  but  DFYS  presented  significant  evidence  to  the

contrary.

          Social  worker Sharon Chambers testified that when  she

attempted to remove Jaclyn from Arlenes custody, Arlene,  Lottie,

and   Brynna  were  belligerent,  refused  to  allow  the  social

workers . . . into the home, slammed the door in her face,  would

only  cooperate with the state trooper who was present, and  were

threatened  with arrest for their refusal to cooperate.   On  the

same  day,  Arlene  and Brynna went to the office  of  Dr.  Karen

Impson,  Jaclyns  pediatrician.  Dr. Impson  testified  that  the

sisters  behavior was so threatening that the police were  called

to  escort  them  from  the building.  The  office  manager  then

escorted  the  staff  from the building by a separate  exit,  and

instructed them to drive in separate directions and not to  drive

home in their normal pattern.  The office subsequently obtained a

restraining order against Brynna and Arlene.           DFYS  also

presented  testimony  regarding  incidents  that  occurred  while

Jaclyn  was  in foster care.  On two occasions Brynna accompanied

Arlene  on  supervised visits with Jaclyn  at  the  DFYS  office.

Brynna  and Arlene accused DFYS of abusing Jaclyn, which  led  to

escalating shouting and chaos in the office.  DFYS social  worker

Lori  DAmico testified that the sisters played loud music  during

their visits with Jaclyn and that Jaclyn would often be screaming

after the visits.  DAmico testified that during one of the visits

she  had to call the police in order to get Brynna and Arlene off

of  the  premises.   According to DAmico, when the  sisters  were

asked  to  end  the visit and return Jaclyn, they  huddled  in  a

corner  .  .  . and absolutely refused to give her  back  to  us.

Brynna  then had to be forcibly removed from the premises by  the

police.   After  the visit, Jaclyn was crying so hard  that  [she

had]  a hard time catching [her] breath for twenty minutes  after

Arlene and Brynna left.

          Following  the  chaotic first visit, DFYS  told  Arlene

that  she  could visit with Jaclyn, but that she could not  bring

any  family members with her.  Arlene entered the building alone,

but  Brynna  was  waiting outside in the car and  at  some  point

Arlene  motioned for Brynna to bring a camera into the  building.

Brynna  brought the camera in and gave it to Arlene.  When DAmico

asked  Brynna to leave, she put her foot inside the door.  DAmico

asked her several times to remove her leg and leave the building,

and  then  threatened to call the police again,  at  which  point

Brynna [said] she didnt want to be arrested and she left.

          In light of this evidence, the superior courts findings

are  not clearly erroneous.  The critical question for us,  then,

is  whether the unlikelihood that Brynna will cooperate with DFYS

or  follow  Jaclyns  case plan constitutes clear  and  convincing

evidence  that Jaclyn would be mentally or physically injured  if

placed in Brynnas custody.

          Brynna claims that the state provide[d] no evidence  to

even  suggest  and  the  superior court  never  found  clear  and

convincing  evidence  that placing Jaclyn in  her  custody  would

cause physical or mental injury to Jaclyn.  She claims that  both

DFYS and the court based their conclusions on assumptions.  It is

true   that  DFYS  presented  no  direct  evidence  that  Brynnas

potential failure to abide by Jaclyns case plan would injure  the

child.   Instead, DAmico explained to Brynna that  youre  aligned

with your sister, and . . . if she was unsafe with her child,  we

do  not  think  you  would be protective.  We cannot  place  with

relatives  unless  we feel they are protective of  the  children.

And that is the bottom line.  Inherent in the courts decision  is

its  agreement  with DFYS that Brynnas failure to follow  Jaclyns

case plan would in fact expose the child to injury.  As the court

explained  to  Arlene,  the department had clear  and  convincing

evidence to demonstrate that that placement was not going to work

to protect your baby from you.

          The  issue then is whether DFYS and the superior  court

properly inferred harm to Jaclyn based only on Brynnas likely non-

compliance  with  Jaclyns  case plan.   We  have  not  previously

considered  whether  a  trial court may  disregard  the  relative

placement  preference law based on a foster parents  likely  non-

compliance with a DFYS case plan.19  But the state obviously  may

base  child placement and foster care decisions on the likelihood

of  future  harm to a child.  An unwillingness to cooperate  with

DFYS  or  to  abide  by  its case plans  is  generally  a  strong

indicator  of future harm.  As one DFYS social worker  explained,

when  a  child  is  placed  with someone  who  ignores  placement

restrictions or rules, there is a danger that the child will  not

receive the appropriate services or treatment that are needed  to

ensure the safety of the child.

          A  comparison  with the legal standard for  terminating

parental  rights  is  instructive.   A parents  unwillingness  to

abide  by  a  case plan may be considered part of the  clear  and

convincing evidence of harm to a child that the state  must  show

in  order  to  terminate the parents rights and  responsibilities

regarding  that  child.20  Since denying child placement  with  a

relative requires the same clear and convincing evidence  as  the

termination of parental rights, there is no logical reason not to

consider  unwillingness  to  abide  by  a  case  plan  in  foster

placement  decisions as well.  The superior court correctly  held

that  Brynnas  likely refusal or inability  to  keep  her  sister

Arlene  away  from Jaclyn, in contravention of DFYS instructions,

constituted  clear and convincing evidence that Jaclyn  would  be

injured by placement with Brynna.21

V.   CONCLUSION

          The  superior  court  did not  commit  clear  error  in
determining that Brynna  would fail to keep Jaclyn separated from
Arlene as required by Jaclyns case plan.  This likely failure  to
abide  by the case plan constitutes clear and convincing evidence
of  probable  future physical or emotional harm to  Jaclyn.   The
superior court therefore justifiably upheld the states denial  of
Brynnas request to place Jaclyn in her custody, and we AFFIRM the
decision of the superior court.
_______________________________
     1     Pseudonyms have been used to protect the  identity  of
the family members.

     2     This  office is now known as the Office  of  Childrens
Services (OCS), but we refer to it by the official name  used  in
the proceedings below.

     3     Alaska Statute 47.10.011(1) and (11) provide that  the
court may find a child to be in need of aid if it finds that:

               (1)  a  parent or guardian has abandoned
          the  child as described in AS 47.10.013,  and
          the  other  parent is absent or has committed
          conduct or created conditions that cause  the
          child to be a child in need of aid under this
          chapter;
          . . . .
               (11)  the parent, guardian, or custodian
          has   a  mental  illness,  serious  emotional
          disturbance, or mental deficiency of a nature
          and   duration  that  places  the  child   at
          substantial risk of physical harm  or  mental
          injury[.]
          
     4    Jaclyn has apparently been living with a paternal uncle
since  then.   As  DFYS notes, this case is thus  arguably  moot,
since  Jaclyn  has already been placed in the foster  care  of  a
blood  relative,  albeit  one other than  Brynna.   However,  the
uncles family has informed DFYS that they will no longer be  able
to  provide care for the child due to recently diagnosed physical
problems  with  the  aunt,  and DFYS is  currently  investigating
potential alternative placements for Jaclyn.  The disputed  issue
in  this appeal is thus capable of repetition, and we accordingly
reach its merits.  We also do so for the independent reason  that
a  consistent theme of Brynnas  pro se appeal is that DFYS  erred
in not placing the child with her from the beginning.

     5     A.B. v. State, Dept of Health and Soc. Servs., 7  P.3d
946, 950 (Alaska 2000).

     6     Martin N. v. State, Dept of Health and Soc. Servs., 79
P.3d 50, 53 (Alaska 2003).

     7     A.B., 7 P.3d at 950 (quoting R.J.M. v. State, Dept  of
Health and Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).

     8    Martin N., 79 P.3d at 53.

     9    Id.

     10    S.S.M. v. State, Dept of Health and Soc. Servs., 3 P.3d
342, 344 (Alaska 2000).

     11     Matter  of  D.P., 861 P.2d 1166, 1167  (Alaska  1993)
(internal citations omitted).

     12    Clear and convincing evidence has been characterized as
evidence  that  is greater than a preponderance,  but  less  than
proof  beyond a reasonable doubt.  Buster v. Gale, 866 P.2d  837,
844 (Alaska 1994).

     13    AS 47.14.100(e)(1).

     14    Id.

     15     A.B. v. State, Dept of Health and Soc. Servs., 7 P.3d
946, 950 (Alaska 2000).

     16     Brynna  claims  that she had a legal  right  to  have
[Jaclyn]  placed  in [her] home under the statute.   Just  as  we
construe  adoption  statutes to promote  the  best  interests  of
adopted children, In re Adoption of Keith M.W., 79 P.3d 623,  637
(Alaska 2003) (Matthews, J., concurring), we similarly construe a
foster  placement  statute in the best interests  of  the  foster
child,  not the potential foster parent.  It is the childs  legal
right  to be placed with a relative, where such placement is  not
clearly  injurious.  It is not the relatives legal right to  have
the child placed with her.

     17    In its ruling, the superior court expressed uncertainty
over  whether  to review DFYSs decision for clear  error,  or  to
require  DFYS to show clear and convincing evidence.   The  court
accordingly ruled under both standards.

     18    Because Brynna appears before this court pro se we hold
allegations  made in her brief to a less stringent standard  than
allegations  made by a lawyer.  See Prentzel v.  State,  Dept  of
Pub. Safety, 53 P.3d 587, 593 (Alaska 2002).

     19    This is possibly what Brynna means when she argues that
the  superior court did not have the power to create new laws  or
to add to old ones.

     20     See,  e.g.,  M.W. v. State, Dept of Health  and  Soc.
Servs.,  20 P.3d 1141, 1146 (Alaska 2001) (in determining whether
DFYS made reasonable efforts to prevent out-of-home placement  of
child  in  need  of  aid,  superior court  may  consider  parents
unwillingness   to   engage  in  his  case   plan)   (citing   AS
47.10.088(a)(1)(B)(ii)).    Other   jurisdictions   have    found
similarly.  See, e.g., In re B.I.F., 2003 WL 22952568  (Ga.  App.
2003)  (clear  and convincing evidence of likelihood  of  serious
harm   to   child  included  mothers  failure  to  complete   her
reunification  plan);  In re D.S.A., 113 S.W.3d  567  (Tex.  App.
2003) (evidence supporting termination of fathers parental rights
included  his  failure  to meet requirements  of  family  service
plan);  B.D.S.  v.  Calhoun County Dept of Human  Res.,  2003  WL
21770777  (Ala.  Civ. App. 2003) (in terminating parental  rights
over child not in parents custody, courts may consider the [l]ack
of  effort  by  the parent to adjust his or her circumstances  to
meet the needs of the child in accordance with agreements reached
. . . with local departments of human resources).

     21      DFYS  also  argues  that  Brynnas  unwillingness  to
cooperate  with  the department is shown by her campaign  against
it,  which  included  requesting internal agency  investigations;
writing  letters  to, filing complaints with, and  attempting  to
subpoena numerous state and federal officials; protesting outside
DFYS  offices;  and  soliciting plaintiffs  for  a  class  action
lawsuit  against  DFYS.  Were this campaign  the  basis  for  the
superior  courts  ruling, Brynnas assertion  that  the  state  is
punishing  her exercise of her First Amendment rights might  have
merit.   However, the superior court itself expressed  skepticism
that  Brynnas  campaign  could be a factor  in  determining  that
Brynna would not cooperate.  There is no indication in the record
that  the  superior courts decision was based  on  the  campaign.
Rather, the court stressed that its decision was based on Brynnas
pattern of behavior in dealing with DFYS concerning Jaclyn.