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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.
