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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jacob v. State, Dept of Health & Social Services, Office of Children's Services (03/07/2008) sp-6235

Jacob v. State, Dept of Health & Social Services, Office of Children's Services (03/07/2008) sp-6235, 177 P3d 1181

     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

DAVID and JOYCE JACOB, )
) Supreme Court No. S- 11663
Appellants, )
) Superior Court No.
v. ) 3AN-04-04957 CI
)
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL )
SERVICES, OFFICE OF )
CHILDRENS SERVICES, and )
MARCIE KENNAI, Deputy )
Commissioner, ) O P I N I O N
)
Appellees. ) No. 6235 - March 7, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John E. Reese, Judge.

          Appearances:   James  J. Davis,  Jr.,  Alaska
          Legal  Services  Corporation, Anchorage,  for
          Appellants.    Megan   R.   Webb,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.
          MATTHEWS, Justice, dissenting.

I.   INTRODUCTION
          David  and  Joyce Jacob are the grandparents  of  three
children  who were taken into custody by the  Office of Childrens
Services  (OCS)  in 2000.  Despite dozens of timely  attempts  to
communicate   with   OCS   seeking   information   about    their
grandchildren and requesting that the children be placed in their
home  rather than remain in foster care, and despite  the  Jacobs
status as joint custodians of their grandchildren under an  order
of  the  superior court in Washington, the Jacobs were not  given
notice  of and did not have an opportunity to be heard in any  of
the  Child  in Need of Aid (CINA) hearings which occurred  during
the  first three and one-half years that their grandchildren were
in OCSs custody.  In 2004 the Jacobs retained counsel and brought
a  separate  suit  seeking  declaratory judgment  and  injunctive
relief  regarding their rights to receive notice and be heard  in
their   grandchildrens  CINA  proceedings.   The  superior  court
dismissed  the suit, instructing the Jacobs to instead  intervene
in the CINA proceedings.  They have since done so.
          The Jacobs appeal the superior court dismissal, arguing
that  they  have not received all the relief to which  they  were
entitled  and  seeking broader injunctive relief  to  correct  an
allegedly  systemic failure by OCS to provide  grandparents  with
statutorily required notice.  OCS concedes that the Jacobs may be
entitled to declaratory relief but argues that most of the Jacobs
case  is now moot because the Jacobs have received all the relief
to  which  they are entitled and because the Jacobs lack standing
to seek injunctive relief on the broader claims.
          We  accept  the  states  concession  on  the  issue  of
declaratory  relief.  We also conclude that there is  a  present,
live controversy in which the Jacobs have a continuing stake  and
that the Jacobs will benefit from a declaratory judgment that OCS
violated  their  statutory rights.  Accordingly,  we  accept  the
states  concession on the issue of declaratory relief and reverse
and remand for entry of declaratory judgment in the Jacobs favor.
We  hold  that  all  other  issues are moot  due  to  the  Jacobs
subsequent intervention in their grandchildrens CINA proceedings.
II.  FACTS AND PROCEEDINGS
     A.   Facts1
          Minors  A.K.,  D.L., and E.H. are the grandchildren  of
David  and  Joyce  Jacob.   The  mother  of  the  three  children
struggled  with drug dependency and as a result the Jacobs  often
assumed care of their grandchildren.  In 1997 a Washington  state
court granted the Jacobs joint custody of the children with their
mother.2  In 1999 the Jacobs agreed that the children could  move
to Alaska with their mother because she  had been sober for quite
some  time.  But in 2000 the mother relapsed, and in October 2000
the  children were taken into custody by the Office of  Childrens
Services (OCS).3
          When  the  Jacobs learned from the childrens mother  in
December  2000  that  OCS  had  custody  of  the  children,  they
immediately  sent  a  letter to OCS stating that  they  were  the
childrens  grandparents, had joint custody,  and  wanted  OCS  to
place  the  children in their care.  OCS did not respond  to  the
letter  and  the  children  remained  in  foster  care.   Between
December  2000 and March 2004 the Jacobs made dozens of  attempts
to  communicate  with  OCS, including leaving  messages  for  the
caseworker  and  the caseworkers supervisor,  Tim  Fox.   On  one
          occasion, Fox allegedly told the Jacobs that they were too old to
care for the children.
          Over  the next three and one-half years OCS never  sent
the   Jacobs  notice  of  any  court  hearings  regarding   their
grandchildrens  CINA proceedings, including those  that  occurred
after the September 2001 effective date of amendments to the CINA
statutes requiring grandparent notice.4  During that time  period
the  Jacobs never filed a motion to formally intervene  in  their
grandchildrens  CINA cases and never filed a petition  requesting
that the children be placed in their care.
     B.   Proceedings
          In   March  2004  the  Jacobs  filed  a  complaint  for
declaratory and injunctive relief in superior court.  They sought
judgment  declaring that OCS violated Alaska law  by  failing  to
place their grandchildren in their care and by failing to provide
them  with  notice of their grandchildrens CINA  proceedings  and
permanency  hearings.  The Jacobs also sought  injunctive  relief
compelling  OCS  to  provide  them  and  all  other  grandparents
similarly  situated  written  notice  of  all  hearings  in  CINA
proceedings  involving  their  grandchildren,  as  well   as   an
opportunity  to  be  heard  in their  grandchildrens   permanency
hearings.   The Jacobs also requested that the court place  their
grandchildren with them until and unless OCS could show by  clear
and  convincing  evidence  that such placement  would  result  in
physical  or mental injury to the children.  The Jacobs requested
court costs and reserved the right to later seek attorneys fees.
          The  state  responded with a motion  to  dismiss  under
Alaska   Rule  of  Civil  Procedure  12(b),  alleging   lack   of
jurisdiction,  improper venue, lack of standing, and  failure  to
state  a  claim  upon  which relief may be granted.   The  Jacobs
opposed  the  motion  to  dismiss and cross-filed  a  motion  for
partial summary judgment.
          Superior Court Judge John E. Reese granted OCSs  motion
to  dismiss and declared the Jacobs summary judgment motion moot.
Judge Reese found that [a]lthough the departments failure to give
them notice is a serious oversight, the Jacobs due process rights
have not been violated, since . . . they may request placement in
the CINA case.
          The   Jacobs  have  subsequently  intervened  in  their
grandchildrens CINA  cases and pursued this appeal.   OCS  argues
that  the appeal is moot because of the intervention in the  CINA
cases.   The  Jacobs  contend that they are seeking  relief  that
cannot  be granted within the CINA cases, and that to the  extent
their  complaint  is  moot, we should apply the  public  interest
exception to the mootness doctrine.
          During   oral   argument  the  parties  altered   their
positions  somewhat, with OCS indicating that it had no objection
to our vacating the order of dismissal and remanding for entrance
of  an order of declaratory judgment in favor of the Jacobs.  The
Jacobs  also stated that they sought no relief broader than  that
necessary to satisfy their own claims.
III. STANDARD OF REVIEW
          We  review  the superior courts grant of  a  motion  to
dismiss  pursuant  to  Rule  12(b)(6)  de  novo,  construing  the
          dismissed complaint liberally, and assuming the truth of the
facts it alleges.5  Such dismissals are viewed with disfavor  and
should  only  be  granted on the rare occasion where  it  appears
beyond  doubt  that the plaintiff can prove no set  of  facts  in
support of the claims that would entitle the plaintiff to relief. 6
We review the superior courts dismissal of a declaratory judgment
action  under  the  abuse of discretion standard  .7   The  trial
courts  decision to grant or deny injunctive relief  is  likewise
reviewed for an abuse of discretion.8
           We apply our independent judgment to questions of law,
adopting  the rule of law most persuasive in light of  precedent,
reason, and policy.9 Mootness presents a question of law to which
we  apply our independent judgment.10  Standing and ripeness  are
also questions of law, calling for independent judgment review.11

IV.  DISCUSSION
     A.   The Jacobs Are Entitled to Declaratory Relief.
          The  Jacobs  sought  a  judicial declaration  that  OCS
violated  their  statutory  rights  by  failing  to  place  their
grandchildren  in their care, by failing to give them  notice  of
all  the court hearings in the CINA cases, and by failing to give
them  notice  and  an opportunity to be heard in  the  permanency
hearings.  In his order Judge Reese began by noting that the CINA
statutes  (1)  indicate a clear preference for  placing  children
with  relatives  rather  than  in foster  care  and  (2)  include
grandparents  in  the  list of parties who must  receive  advance
notice  of  CINA  proceedings.   Next,  Judge  Reese  noted  OCSs
concession  that  the Jacobs did not receive notice  of  hearings
held  after  the September 2001 effective date of the  amendments
requiring such notice.  Finally, Judge Reese concluded  that  the
departments failure to give them notice is a serious oversight.
          The  state argues that with these statements the  trial
court  essentially granted the declaratory relief.  We  disagree.
The  superior court dismissed the Jacobs claims and thus did  not
create  an  enforceable order for the Jacobs to use in  the  CINA
proceedings.   Moreover,  the  superior  courts  statements  were
heavily qualified by its subsequent statement that the Jacobs due
process  rights  have not been violated, since .  .  .  they  may
request placement in the CINA case.
          Because   the   Jacobs  never  sought   a   declaration
specifically  regarding their due process rights, we  decline  to
comment  on  this issue extensively.  We do note,  however,  that
notice  of  proceedings and a meaningful right to  be  heard  are
essential to due process,12 and that there are situations in which
the right to intervene in the late stages of a CINA case will  be
insufficient  to  cure the prejudice of the initial  due  process
violation.13   Timely  notice and opportunity  to  be  heard  are
especially  important in situations involving  the  placement  of
children.
          Here  the  Jacobs were not given notice of any  of  the
initial  CINA hearings involving their grandchildren.  While  the
crucial  laws  regarding grandparent notice did not  take  effect
before the initial decisions concerning their grandchildren  were
made,   we note that from an equitable standpoint the Jacobs  did
          not receive an opportunity to be heard in this case until it was
already  too  late.   The  Jacobs were not  consulted  for  early
placement  despite their status as legal custodians and concerned
relatives of the children.  By the time they navigated their  way
through  the web of bureaucracy, retained counsel, and entered  a
courtroom,  many years had passed  an amount of  time  even  more
significant  for  children   and their grandchildren  had  formed
bonds  with  their  foster parents such that an  OCS  home  study
concluded that it was not in the childrens best interest to  move
into  the  Jacobs  home.   We  do not have  sufficient  facts  to
determine  whether  the  lapse of time  was  prejudicial  to  the
Jacobs, nor to determine whether the children ought to have  been
placed  with  them  initially, but we will consider  whether  the
superior  court erred when it dismissed the Jacobs  claim  for  a
declaratory  judgment  that recognizes that  OCS  violated  their
statutory rights.
          OCS  argued  in  its brief that we should  dismiss  the
declaratory  judgment portions of the Jacobs appeal  on  mootness
grounds.  But at oral argument the state conceded,  in accordance
with  its briefed position that declaratory judgment had  already
been  granted, that it had no objection to an order vacating  the
dismissal and remanding for an entry of declaratory judgment  for
the  Jacobs.  Given the disturbing factual history of this  case,
the states concession appears to be well-taken.
          A  claim  is  moot if it has lost its  character  as  a
present, live controversy.14  Where the party bringing the action
would  not be entitled to relief even if successful, there is  no
case  or controversy for us to resolve.15  Issues are moot  where
the  appellant has already received relief.16  Mootness can  also
occur  when  a  party  no  longer has a  personal  stake  in  the
controversy  and has, in essence, been divested of  standing.  17
The  Jacobs claim for a declaratory judgment is not moot  because
the   Jacobs   retain  an  ongoing  stake  in  a  present,   live
controversy.  A declaration of the Jacobs rights will continue to
benefit them in their dealings with OCS.  We are troubled by OCSs
history  of refusal to provide the Jacobs with notice  of  agency
decisions  or  actions  relating  to  their  grandchildren,   and
resistance  to including the Jacobs in their grandchildrens  CINA
proceedings.   We  also recognize that, given this  history,  the
Jacobs  current  status  as interveners in  their  grandchildrens
remaining CINA cases does not preclude the possibility  that  OCS
will  again  fail  to  provide  the  Jacobs  with  notice  or  an
opportunity to be heard.  For example, although the Jacobs eldest
grandchildren  are  currently under  the  guardianship  of  their
foster parents, OCS could again violate the Jacobs rights if  the
agency  fails  to  notify the Jacobs of  any  disruption  in  the
guardianship  or fails to consider the Jacobs first  in  priority
for  a new placement.  In addition, the remaining CINA proceeding
for  the Jacobs youngest grandchild is still under way.  Although
the   Jacobs   currently  enjoy  intervener   status   in   those
proceedings,  OCS could again violate the Jacobs  rights  if  the
agency  fails  to provide them with notice and an opportunity  to
participate  in any additional proceedings that become  necessary
in  the  future.  A declaratory judgment from the superior  court
          that acknowledges the failure of OCS to meet its statutory duty
to  the Jacobs and that specifically recognizes the Jacobs rights
to  receive  notice  of  future OCS hearings  relating  to  their
grandchildren will materially benefit the Jacobs.
          As  noted  above,18 the state conceded at oral argument
that  it had no objection to an order vacating the dismissal  and
remanding  for an entry of declaratory judgment for  the  Jacobs.
We  do  so  now,  because  the Jacobs are  entitled  to  judicial
declaration  that  they  have  a right  to  notice  of  any  CINA
proceedings involving their grandchildren.   The Jacobs are  also
entitled to a declaration that their right to notice was violated
by  OCS when they did not receive notice after the September 2001
effective date of the amendments requiring such notice.
     B.   The Remaining Injunctive Relief Requests Are Moot.
          OCS argues that we should dismiss the Jacobs claims for
injunctive relief as moot.  As stated above, issues are moot when
the  appellant has already received relief.19  OCS contends  that
the  Jacobs  claims for injunctive relief are moot  because  they
have  already received or declined to pursue every item of relief
that they requested in the trial court.
          1.   Injunctive relief on their own behalf
          The  Jacobs  initial complaint sought  three  forms  of
injunctive relief on their own behalf: (1) notice of all hearings
in CINA proceedings involving their grandchildren; (2) notice and
an  opportunity to be heard in all permanency hearings  involving
their   grandchildren;  and  (3)  immediate  placement  of  their
grandchildren  unless  OCS could show  by  clear  and  convincing
evidence  that  such  placement would cause  physical  or  mental
injury to the children.20
          Following  the  superior  courts  dismissal  of   their
claims,    the   Jacobs   successfully   intervened   in    their
grandchildrens CINA cases.  The Jacobs and OCS eventually  agreed
to  a visitation plan that includes having the children spend two
to  three  weeks  with the Jacobs every summer.   OCS  agreed  to
notify  the  Jacobs within forty-eight hours if the  guardianship
placement  is  disrupted and also agreed to consider  the  Jacobs
first  for placement, if needed.  The guardianships of  D.L.  and
A.K. were approved by the superior court in January 2006 and  OCS
subsequently  released  them  from  custody.   Only   E.H.,   the
youngest,  remains  in  OCS custody.  In her  pending  case,  the
Jacobs have intervener status.
          Thus  the  Jacobs  have  in  the  cases  of  all  three
grandchildren  received  the first two categories  of  injunctive
relief  that  they  sought: notice of  CINA  proceedings  and  an
opportunity  to  be  heard at permanency hearings.   Because  the
Jacobs  have  intervener status in E.H.s case,  and  because  our
decision today regarding declaratory relief will leave the Jacobs
with  an enforceable statement of their rights in any future CINA
proceedings, the Jacobs present no live controversy here.
          With  respect  to the third form of injunctive  relief,
placement  of the children, this matter has been adjudicated  and
settled  by  the superior court handling the CINA  cases  of  the
older  two  children and is currently under review for E.H.,  the
youngest child.  As previously noted, the Jacobs decided  not  to
          request full custody of the children out of concern for their
best  interests.   With  respect  to  E.H.,  the  superior  court
handling  her  CINA  case has jurisdiction  and  the  Jacobs  can
exercise   their  right  to  be  heard  within  that  proceeding.
Finally,  the Jacobs effectively concede that the superior  court
handling the CINA case, and not the superior court in which  this
separate  suit was filed, retains proper jurisdiction over  E.H.s
status and custody.21
          The  Jacobs  argue that the fact that one of  the  CINA
cases is still open makes it hard to conceive of how this lawsuit
is  moot.   But  the crux of their suit below was the  denial  of
their opportunity to be heard, which has since been resolved   to
the  extent  that  it could be at this late  stage   through  the
Jacobs  actual  participation in various hearings and  intervener
status.  The Jacobs additional request for custody of E.H., if it
is  even  still desired by the Jacobs, is appropriately evaluated
through  the remaining CINA proceedings.  Because we  agree  with
the state that the Jacobs have either been granted or declined to
pursue all the injunctive relief that they requested on their own
behalf, we hold that the injunctive relief requests they made  on
their own behalf are moot.
          2.   Injunctive relief on behalf of similarly  situated
               grandparents
          In  their briefing the Jacobs argued that they have not
received  the  relief  they  requested  on  behalf  of  similarly
situated  grandparents.   Namely, the  court  did  not  issue  an
injunction   compelling   OCS  to  provide   similarly   situated
grandparents with an opportunity to be heard in all relevant CINA
proceedings.   In oral argument, the Jacobs appeared  to  retreat
from this position to some degree, stating that they were seeking
no  more relief than necessary for full relief in their own case.
Because   the   Jacobs  requested  relief  has  adequately   been
addressed,  and  because the Jacobs did not file a  class  action
suit,  we  decline to address the Jacobs request  for  injunctive
relief on behalf of similarly situated grandparents.
     C.   Heretofore Unstated Damages Claims
          The  Jacobs  note  that had the case  been  allowed  to
proceed  past the pleading stage they would have possibly amended
their  complaint  to  seek damages.  They  did  not  include  any
damages  claim  in  their complaint to the superior  court.   The
Jacobs argue that because Civil Rule 26 disclosures and discovery
have  not occurred in this litigation they have [not] yet  had  a
fair chance to state any tort claim against the OCS.  Because the
Jacobs  provide no legal support for the notion that claims  that
they have not yet stated could be grounds for reversing dismissal
of  the case, we decline to address these hypothetical claims  or
their potential merits.
V.   CONCLUSION
          We  VACATE the order of dismissal with respect  to  the
declaratory judgment and REMAND for entry of declaratory judgment
consistent with this opinion.  We AFFIRM on mootness grounds  the
remainder of the decision.
MATTHEWS, Justice, dissenting.
          I  agree  with  the court that the Office of  Childrens
Services  violated the Jacobs rights by failing to  provide  them
notice  of  their grandchildrens CINA proceedings and  permanency
hearings.  I also agree with the courts assessment that this case
presents  a  disturbing set of facts.  However, for most  of  the
reasons  the  court  provides  in its  discussion  of  injunctive
relief,1  I  believe  that the Jacobs appeal seeking  declaratory
relief is moot.
          The  CINA proceedings and permanency hearings  for  the
grandchildren  are  all underway or have already  been  resolved.
The  Jacobs successfully intervened in all three cases.   As  the
court  recognizes, the crux of the Jacobs suit was the denial  of
their opportunity to be heard.  This denial has been remedied  to
the  extent that it can be  and a declaration of rights that  are
already  guaranteed by statute2 will do little to aid the  Jacobs
in  the  future.  The courts speculation that OCS might,  if  the
opportunity arose, again disregard the Jacobs rights  should  not
alter the mootness analysis.3  The plain fact is that there is no
longer  a  present controversy in this case.  For this  reason  I
would dismiss this appeal as moot.

_______________________________
     1     The  following facts are taken largely from the Jacobs
complaint.   Because  we  are  reviewing  a  complaint  that  was
dismissed,  we treat the factual allegations of the complaint  as
if  they  were true.  Lowell v. Hayes, 117 P.3d 745, 750  (Alaska
2005).

     2      Despite  the  importance  of  the  Jacobs  status  as
custodians of the children, the Jacobs specifically seek  redress
as grandparents and not as individuals with legal custody.

     3     For  ease of reference, we refer to both OCS  and  its
predecessor agency, the Department of Family and Youth  Services,
as OCS.

     4    AS 47.10.030(d), effective September 23, 2001, provides
in relevant part:

          .  .  .  [T]he department shall give  advance
          written  notice of all court  hearings  in  a
          childs case to a grandparent of the child if
          (1)   the   grandparent  has  contacted   the
          department,  provided evidence acceptable  to
          the    department   of   being   the   childs
          grandparent,  requested  notice   about   the
          hearings in the childs case, and provided the
          department with a current mailing address; or
          (2)  the  department is aware that the  child
          has   a   grandparent  and  the  grandparents
          mailing   address  is  on   file   with   the
          department.
          
          A   simultaneous   amendment  to  the  general   notice
provision, AS 47.10.030(b), added qualifying grandparents to  the
list  of individuals who shall be given notice regarding a childs
proceedings. Ch. 43,  1, 2, SLA 2001.

     5    Lowell, 117 P.3d at 750.

     6     Id.  (quoting  Angnabooguk v. State, Dept  of  Natural
Res., 26 P.3d 447, 451 (Alaska 2001)).

     7    See id.

     8     Betz  v.  Chena Hot Springs Group, 657 P.2d  831,  837
(Alaska 1982).

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

     10     Peter  A.  v. State, Dept of Health and Soc.  Servs.,
Office of Childrens Servs., 146 P.3d 991, 994 (Alaska 2006).

     11    Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).

     12    Evans v. Native Village of Selawik IRA Council, 65 P.3d
58, 60 (Alaska 2003).

     13     Cf. Matanuska Maid, Inc. v. State, 620 P.2d 182,  193
(Alaska 1980) (holding that where contestant actually appears and
presents his claim no due process violation has occurred assuming
the  inadequacy  of  notice in the present case  did  not  hinder
preparation or presentation of arguments) (emphasis added).

     14    Peter A., 146 P.3d at 994.

     15    Id. (quotation omitted).

     16     Fairbanks Fire Fighters Ass'n, Local 1324 v. City  of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).

     17     Ulmer v. Alaska Restaurant & Beverage Assn,  33  P.3d
773,  776  (Alaska  2001) (quoting 15 Martin  H.  Redish,  Moores
Federal Practice  101.90 (3d ed.1998)).

     18    See supra at 8-9.

     19    Fairbanks Fire Fighters Ass'n, 48 P.3d at 1168.

     20     As  discussed in more detail below, the  Jacobs  also
requested  injunctive  relief  on behalf  of  other  grandparents
similarly  situated.  In its briefing, OCS addressed  the  Jacobs
personal   injunctive  relief  requests  separately  from   their
requested relief on behalf of others.  Because the legal theories
for each are different, we do likewise, focusing first on whether
the  Jacobs request for injunctive relief on their own behalf  is
moot.

     21     The  Jacobs  effectively concede that they  were  not
entitled  to  the  third  item  of injunctive  relief  that  they
requested,  the  placement of their grandchildren.   They  state,
[w]hile  the superior court in this matter could not have entered
orders for the Jacobs as to the placement of their grandchildren,
such  matters  being  before  the  CINA  court,  it  plainly  had
jurisdiction to consider and rule on the Jacobs other claims .  .
. . Thus, the Jacobs appear to waive any appeal of the failure to
grant placement of the children.

     1    Slip Op. at 10-13.

     2    AS 47.10.030(b).

     3     The  fact  that  this case is no longer  ripe  can  be
demonstrated   by  assuming  that  a  litigant   petitioned   for
declaratory  relief  based solely on such speculation.   A  court
would   deny   relief  for  failure  to  establish  a  sufficient
likelihood of future injury.

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