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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tea, Guardian Ad Litem, on Behalf of A.T. and S.T. (6/22/2012) sp-6683

Tea, Guardian Ad Litem, on Behalf of A.T. and S.T. (6/22/2012) sp-6683

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



E. KATE TEA, Guardian Ad Litem,                     )   Supreme Court No. S-14200 

on Behalf of A.T. and S.T.,                         ) 

                                                    )   Superior Court Nos. 3KN-10-00002 CN 

                                                    )   and 3KN-10-00003 CN 

Minors Under the Age of Eighteen                    )   (Consolidated) 

Years.                                              )) 

                                                    )   O P I N I O N 

                                                    ) 

                                                    )   No. 6683 - June 22, 2012 



                Petition for Review from the Superior Court of the State of 

                Alaska, Third Judicial District, Kenai, Carl Bauman, Judge. 



                Appearances:  Robert R. Polley, Kodiak, and Dianne Olsen, 

                Law Office of Dianne Olsen, Anchorage, for Guardian Ad 

                Litem.       David     T.  Jones,    Assistant    Attorney     General, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for 

                State of Alaska.  Dan S. Bair, Assistant Public Advocate, and 

                Richard Allen, Public Advocate, Anchorage, for Mother. 



                Before:       Carpeneti,    Chief    Justice,   Fabe,   Winfree,     and 

                Stowers,  Justices. 



                WINFREE, Justice. 



I.      INTRODUCTION 



                Eight days after relinquishing her parental rights to twin children, their 



mother   filed   a   motion   requesting   that   the   superior   court   order   the   State   of   Alaska, 



Department   of   Health   and   Social   Services,   Office   of   Children's   Services   (OCS)   to 



release the children's annual Permanent Fund Dividends (dividends) to her.  The superior 


----------------------- Page 2-----------------------

court granted the motion.         Because OCS was legally entitled to obtain and hold the 



children's dividends in trust, we reverse the superior court's order. 



II.     FACTS AND PROCEEDINGS 



                Twin children were born in August 2009.             In January 2010 OCS filed a 



non-emergency child in need of aid petition regarding the children.                In February the 



superior court granted OCS temporary legal custody; in March the superior court granted 



OCS physical custody and the children were removed from their parents' care. 



                In August 2010 OCS sent the Department of Revenue (the Department) 

notice that OCS had custody of the children.1          OCS received the dividends and placed 



them in trust for the children.  Both parents voluntarily relinquished their parental rights 



on December 8, 2010.        The superior court terminated both parents' parental rights on 



December 28, 2010. 



                On   December   16,   2010,   after   the   relinquishment   of   parental   rights   but 



before the termination order was entered, the mother sought a court order requiring OCS 



to   release   the   children's   dividends   to   her. The   guardian   ad   litem   (GAL)   and   OCS 



opposed her motion.       The superior court ordered OCS to provide proof of compliance 



        1       The    Department's     regulations    envision   situations   where   OCS    obtains 



custody of a child after the dividend application period but before the dividend is paid. 

15 Alaska Administrative Code (AAC) 23.223(i) (2010) provides: 



                If [OCS] obtains legal custody of an eligible child before the 

                department has paid an application filed by any other sponsor 

                of the child, the department will pay the child's dividend in 

                accordance with (g) of this section if [OCS] furnishes the 

                department 



                        (1) evidence of the change in legal custody; and 



                        (2) a timely request for a change of address. 

                                                 -2-                                              6683 


----------------------- Page 3-----------------------

with 15 AAC 23.223(i).2        OCS filed copies of the address change forms and an affidavit 



of the OCS employee who completed the forms stating OCS had complied with the 



Department's regulation. 



                The    superior   court   concluded     OCS's     filing  did  not   comply    with  the 



regulation's "evidence of the change in legal custody" requirement and ordered OCS to 



release   the   dividends   to   the   mother.  The   GAL   sought   reconsideration,   which   the 



superior court denied. 



                We granted the GAL's petition for review. 



III.    STANDARD OF REVIEW 



                We typically interpret regulations with some deference to the agency's own 



                 3 

interpretation,  but the agency that promulgated 15 AAC 23.223(i) is not a party and has 



not otherwise offered an interpretation.   We therefore interpret the regulation using our 



independent judgment "seeking to adopt the rule of law that is most persuasive in light 

of precedent, reason, and policy."4 



        2       See note 1, above. 



        3       Alaskan Crude Corp. v. State, Dep't of Natural Res., Div. of Oil & Gas , 261 



P.3d 412, 419 (Alaska 2011) ("We apply the reasonable basis standard when reviewing 

an agency's interpretation of its own regulation.           Under this standard, we defer to the 

agency unless its interpretation is plainly erroneous and inconsistent with the regulation." 

(internal citations and quotation marks omitted)). 



        4       Harrod v. State, Dep't of Revenue , 255 P.3d 991, 995 (Alaska 2011) (citing 



Temple v. Denali Princess Lodge, 21 P.3d 813, 815 (Alaska 2001)) (stating statutory 

interpretation questions not involving agency expertise call for an independent judgment 

standard of review). 

                                                  -3-                                               6683 


----------------------- Page 4-----------------------

IV.     DISCUSSION 



        A.      Overview 



                When a parent-child relationship has not been altered by state action, AS 

43.23.005 allows the parent to apply for a dividend on behalf of a child.5                Traditional 



parental rights include "[t]he right to control and manage a minor child's property," 

including a dividend.6      But AS 47.10.084(a) specifically gives OCS or the GAL "the 



right and responsibility to make decisions of financial significance concerning the child" 



after a child has been adjudicated a child in need of aid under AS 47.10.080(c). 



                Once OCS takes custody of a child, AS 43.23.005 - by its inclusion of the 



terms "guardian" and "other authorized representative" - allows OCS to apply for a 

dividend on behalf of a child in OCS custody.7         In addition to AS 43.23.005's permissive 



phrasing, AS 47.10.115 requires OCS to apply for an eligible child's dividend "if the 



        5       AS 43.23.005(c) provides: 



                A parent, guardian, or other authorized representative may 

                claim     a   permanent      fund   dividend     on    behalf   of   an 

                unemancipated       minor    or  on   behalf   of  a  disabled   or  an 

                incompetent individual who is eligible to receive a payment 

                under this section. Notwithstanding (a)(2)-(4) of this section, 

                a minor is eligible for a dividend if, during the two calendar 

                years immediately preceding the current dividend year, the 

                minor was born to or adopted by an individual who is eligible 

                for a dividend for the current dividend year. 



        6       L.A.M. v. State , 547 P.2d 827, 833 n.13 (Alaska 1976); see also Hayes v. 



Hayes ,   922   P.2d   896,   901   (Alaska   1996)   (noting   Alaska   law   is   "silen[t]   as   to   what 

parents must or should do with PFDs received on behalf of unemancipated minors"). 



        7       AS 43.23.005(c) ("A . . . guardian , or other authorized representative may 



claim   a   permanent fund   dividend   on   behalf of an   unemancipated   minor   .   .   .   who   is 

eligible to receive a payment under this section." (emphasis added)). 

                                                  -4-                                              6683 


----------------------- Page 5-----------------------

child is in the custody of [OCS] when the application is due."8            The Department accepts 



applications from January 1 to March 31 of the "dividend year."9 



                The Department's regulations provide that OCS may apply for a dividend 

on a child's behalf if the child is in OCS custody on the last day of the qualifying year,10 



and that OCS also can       request the Department to redirect a dividend: 



                If [OCS] obtains legal custody of an eligible child before the 

                department has paid an application filed by any other sponsor 

                of the child, the department will pay the child's dividend in 

                accordance with (g) of this section if [OCS] furnishes   the 

                department 



                        (1) evidence of the change in legal custody; and 

                        (2) a timely request for a change of address.[11] 



        8       AS    47.10.115(a)     ("[OCS]   shall   annually    apply    for  a  permanent   fund 



dividend   and   retain   in   trust   under   AS   43.23.015(e)   for   the   benefit   of   the   child   the 

dividend and accrued interest on the dividend if the child is in the custody of [OCS] 

when the application is due."). 



        9       AS 43.23.011(a). " '[D]ividend year' means the calendar year in which the 



dividend is declared . . . ." 15 AAC 23.993(a)(7). 



        10      15 AAC 23.113(f) ("A representative of [OCS] may apply for a dividend 



for a child who is in [OCS's] custody on December 31 of the qualifying year.").                        " 

'[Q]ualifying year' means the calendar year immediately preceding the dividend year 

. . . ." 15 AAC 23.993(a)(11); see also AS 43.23.095(6). 



        11      15 AAC 23.223(i). 



                                                  -5-                                               6683 


----------------------- Page 6-----------------------

                OCS can also apply for a dividend beyond the regular deadline on behalf 

of a child in its custody.12      Finally, if multiple applications are filed on behalf of one 



child, the Department will pay the OCS application.13 



                Both title 43 and title 47 require OCS to place a child's dividend in trust 



once the Department pays it.         Under title 43, "[i]f a public agency claims a permanent 



fund dividend on behalf of an individual, the public agency shall hold the dividend in 

trust for the individual."14    Under title 47, OCS is also directed to hold a child's dividend 



in trust under AS 43.23.015(e).15 



        B.	      Redirecting An Existing Dividend Application Under 15 AAC 23.223(i) 

                Does     Not   Incorporate      15   AAC     23.113(f)'s    December      31   Custody 

                Requirement. 



                The parties offer competing interpretations of 15 AAC  23.223(i).   The 



mother argues the regulation "requires OCS to inform the Department . . . that OCS has 



custody  of the child and that the child was in OCS custody on December 31 of the 



        12	     15 AAC 23.133(f) provides: 



                If a representative of [OCS] failed to apply for a dividend for 

                a child who was in its custody on December 31 of the prior 

                qualifying year, and the department does not have a timely 

                filed   application   on   file   for   the   child,   a   representative   of 

                [OCS] may submit an application on the child's behalf for the 

                prior year's dividend. 



        13      See   15   AAC   23.223(h)   ("If   competing   applications   are   timely   filed   on 



behalf of an eligible child, the department will not pay any dividend for the child unless 

.   .   .   one   of   the   timely   filed   competing   applications   was   filed   by   [OCS]   under   the 

provisions of 15 AAC 23.113(f) . . . ."); 15 AAC 23.223(i) ("An application timely filed 

by [OCS] for an eligible child under the provisions of 15 AAC 23.113(f) will be paid 

over all timely filed competing applications in accordance with (g) of this section."). 



        14	     AS    43.23.015(e). 



        15      AS 47.10.115(a). 



                                                   -6-                                               6683 


----------------------- Page 7-----------------------

qualifying     year."16   OCS     and   the  GAL     counter    that  the  regulation   provides    two 



alternative     methods     for  OCS    to  receive    a  dividend    in  trust  for  a  child,  either: 



(1) applying under 15 AAC 23.113(f); or (2) submitting evidence of change in custody 



and address.  OCS admits it did not submit an application, only change of address forms. 



                The mother bases her reading of 15 AAC 23.223(i) on the requirement of 



15 AAC 23.133(f) that a child be in OCS custody on December 31 before OCS can apply 



for the child's dividend and the reference to 15 AAC 23.133(f) in the first sentence of 



15 AAC 23.223(i) - "[a]n application timely filed by [OCS] for an eligible child under 



the   provisions   of   15   AAC   23.113(f)   will   be   paid   over   all   timely   filed   competing 



applications."     OCS bases its reading of 15 AAC 23.223(i) on the regulation's plain 



language. 



                OCS offers a more natural reading of the regulation.  When a regulation's 



interpretation is challenged, we apply the same standards that we apply to statutory 

interpretation.17   "When construing statutes, we consider three factors:   'the language of 



the statute, the legislative history, and the legislative purpose behind the statute.' "18 



"We have held that 'the plainer the language of the statute, the more convincing any 



        16      The mother also argues that the December 31 custody requirement has been 



adopted as official OCS policy.         But OCS's policy merely parallels 15 AAC 23.113(f) 

and 15 AAC 23.223(i); its adoption as OCS policy does nothing to further this argument. 



        17      See Romann v. State, Dep't of Transp. & Pub. Facilities, 991 P.2d 186, 191 



(Alaska 1999) (applying sliding scale analysis including plain meaning and legislative 

history to regulation interpretation). 



        18      Oels v. Anchorage Police Dep't Emps. Ass'n, ___ P.3d ___, Op. No. 6639 



at 12, 2012 WL 163913 at *7 (Alaska, Jan. 20, 2012) (quoting Shehata v. Salvation 

Army , 225 P.3d 1106, 1114 (Alaska 2010)). 

                                                  -7-                                               6683 


----------------------- Page 8-----------------------

contrary legislative history must be . . . to overcome the statute's plain meaning.' "19 



                Although not separated into subparts, 15 AAC 23.223(i) speaks to two 

distinct factual scenarios.20    The first sentence applies if OCS files an application under 



15 AAC 23.113(f) and mandates that OCS's application "will be paid over all timely 



filed competing applications."  The second sentence applies if "any other sponsor of the 



child" files an application, and OCS "obtains legal custody" of the child prior to that 

application being paid.21 



                As OCS points out, reading the second sentence of 15 AAC 23.223(i) as 



requiring that OCS have custody of the child on December 31 of the qualifying year 



        19      Id. (quoting Peninsula Mktg. Ass'n v. State , 817 P.2d 917, 922 n.6 (Alaska 



1991)).    The parties do not offer, and we are unable to find, any relevant history or 

evidence of the agency's intent in promulgating 15 AAC 23.223(i), let alone any intent 

contrary to the regulation's plain meaning.          Accordingly, we base our analysis on the 

regulation's plain meaning. 



        20      Disabled adults have parallel provisions. See 15 AAC 23.123 ("Application 



on behalf of a disabled, incompetent, or other adult."); 15 AAC 23.223(j) (competing 

applications   on   behalf   of   an   adult);   15   AAC   23.223(k)   (providing   Office   of   Public 

Advocacy (OPA) application has priority and prior application can transfer to OPA). 



        21      15 AAC 23.223(i) states the Department "will pay the child's dividend in 



accordance with (g) of this section" if the requirements of (i) are met. 15 AAC 23.223(g) 

provides: 



                The department will pay a dividend to a public agency trust 

                account established in accordance with AS 43.23.015(e) if 

                the 



                        (1) public agency claims a dividend on behalf of an 

                individual; 



                        (2) public agency timely provides the department with 

                a   court   order    showing     the   agency    has   been    granted 

                guardianship or conservatorship of the individual; and 



                        (3) individual is otherwise eligible for the dividend. 

                                                  -8-                                              6683 


----------------------- Page 9-----------------------

would render the sentence superfluous.          Because dividends are not paid until after the 



qualifying year, under a December 31 requirement OCS would always have custody of 



the child   prior to payment and thereby render the pre-payment custody requirement 



meaningless. 



                The two sentences of 15 AAC 23.223(i) also reference different triggering 



events.   The first sentence references "an application"; the second sentence references 



evidence of a change in custody and a request for a change of address.                  A dividend 

application must be on a Department form22  and requires an applicant to provide more 



information   than   evidence   of changed   custody   and   a   new   address.23     No   regulation 



specifies a required form or details the evidentiary requirement of 15 AAC 23.223(i). 



These distinct triggering events also support reading 15 AAC 23.223(i) as creating two 



paths for OCS to obtain a dividend for a child in its custody. 



                We therefore hold that, based   on its plain meaning, 15 AAC 23.223(i) 



creates two independent methods for OCS to claim a child's dividend, either:  (1) filing 



an original application; or (2) redirecting an existing application. 



        C.	     It Was Error For The Superior Court To Find OCS Did Not Comply 

                With 15 AAC 23.223(i). 



                OCS argues that it complied with the provisions of 15 AAC 23.223(i), 



because the change of address forms served as both a notice of the new address under 15 



AAC 23.223(i)(2) and as evidence of a change in custody under 15 AAC 23.223(i)(1) 



by the inclusion of "Office of Children's Services" as the children's new address.  The 



mother responds that because the regulation requires evidence of the change of address 



and evidence of the change in custody, "something more than an address change alone 



        22      15   AAC   23.103(a)   ("An   individual   must   use   a   form   prescribed   by   the 



department to apply for a dividend."). 



        23      See 15 AAC 23.173 ("Proof of eligibility"). 



                                                 -9-                                              6683 


----------------------- Page 10-----------------------

is required." 



                OCS and the GAL argue that the fact the Department paid the dividends to 



OCS suggests the Department itself thought the change of address forms were sufficient 



to comply with 15 AAC 23.223(i) and the superior court should have deferred to the 



Department's determination. The mother counters that no deference is due as the change 



of address forms contained no evidence of the December 31 custody she maintains is 



required under 15 AAC 23.113(f) - a construction we reject.   Although the mother has 



labeled the underlying action as an "unauthorized seizure" of the dividends, what really 



underlies the dispute is the Department's decision to pay the dividends to OCS rather 



than the mother.  OCS submitted the change of address forms, but paying the dividends 



to OCS was the Department's determination. 



                The Department's implicit determination that OCS complied with 15 AAC 

23 223(i) is arguably supported by substantial evidence.24               As noted above, 15 AAC 



23.223(i) does not contain the requirements of 15 AAC 23.113(f).  A change of address 



form listing OCS as a child's new address certainly implies the child is in OCS custody. 



More importantly, though, the superior court (and all of the parties in the superior court 



proceeding) knew of OCS's custody of the children because the superior court itself 



signed the custody order.        There was and could be no dispute that OCS actually was 



entitled   to   redirect   and   hold   the   children's   dividends,   regardless   of   the   information 



provided to the Department.         If the superior court had concerns about the information 



OCS provided to the Department, it could have directed OCS to supplement its filing; 



the superior court elevated form over substance by ordering release of the children's 



        24      See Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 



630 (Alaska 2011) (noting agency factual findings are reviewed for substantial evidence 

"which   is   defined   as   'such   relevant   evidence   as   a   reasonable   mind   might   accept   as 

adequate to support the [agency's] conclusion' " (quoting Lopez v. Adm'r, Pub. Emps.' 

Ret. Sys. , 20 P.3d 568, 570 (Alaska 2001))). 

                                                  -10-                                              6683 


----------------------- Page 11-----------------------

dividends to the mother on the ground that OCS failed to provide the custody order to 



the Department. 



V.     CONCLUSION 

              We REVERSE the superior court's decision.25 



       25     Because we hold OCS complied with 15 AAC 23.223(i) we do not reach 



the GAL's argument that 15 AAC 23.113(f) conflicts with AS 47.10.115(a) or OCS's 

argument that AS 47.10.115(b) required the superior court to consider the best interests 

of the children before ordering the release of their dividends. 

                                          -11-                                       6683 

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