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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blythe P. v. State of Alaska, DHSS, OCS (2/10/2023) sp-7641

Blythe P. v. State of Alaska, DHSS, OCS (2/10/2023) sp-7641

          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@akcourts.gov.   

  

  

                      THE SUPREME  COURT OF  THE STATE  OF ALASKA   



  

                                                                       

BLYTHE  P.,                                                         )           

                                                                       

                                                                    )         Supreme Court No. S-18296   

                                                                       

                               Appellant,                           )           

                                                                       

                                                                    )         Superior  Court No.  4FA-21-00016 CN   

                                                                       

          v.                                                        )           

                                                                       

                                                                    )         O  P I    N  I  O  N   

                                                                                           

                                                                       

STATE OF  ALASKA, DEPARTMENT                                        )  

                                                                                

                                                                       

OF HEALTH & SOCIAL  SERVICES,                                       )  

                                                                              No.  7641  -  February 10, 2023   

OFFICE OF CHILDREN'S SERVICES,                                      )  

                                                                       

                                                                    )  

                                                                       

                               Appellee.                            )  

  

                                                                       

                                                                    )  



                     Appeal  from  the   Superior  Court  of  the  State  of  Alaska,   

                     Fourth  Judicial District,  Fairbanks,  Earl A.  Peterson, Judge.   

  

                     Appearances:   Renee  McFarland, Assistant Public  Defender,  

                     and  Samantha  Cherot,  Public   Defender,  Anchorage,  for  

                     Appellant.   David A. Wilkinson, Senior Assistant Attorney   

                     General, Anchorage, and Treg R. Taylor, Attorney General,  

                     Juneau,  for   Appellee.     Margaret   McWilliams,  Assistant   

                     Public       Advocate,          Juneau,        and      James       Stinson,        Public   

                     Advocate,  Anchorage, for Guardian Ad Litem.   

  

                     Before:    Winfree, Chief Justice, Maassen,   Borghesan,   and  

                     Henderson,  Justices.   [Carney, Justice, not participating.]   

                       

                     BORGHESAN, Justice.   

  



  



  


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

          INTRODUCTION   



                    When the  Office of Children's Services (OCS)  decides to transfer a child   



in its custody from one out-of-home placement to another, a party may   seek judicial   



review of  that  decision.   According to statute,  the  superior  court  shall deny the  proposed   



transfer  if the party "prove[s]  by clear and convincing evidence that the transfer would   



                                                                    1  

be contrary to the  best interests  of the child."                                                                                   

                                                                       OCS argues that in some circumstances  



                                                                                                                                     

the party challenging a proposed transfer must also show it is an abuse of discretion,  



                                                                                                                              2  

                                                                                                                                 or  

such as when OCS seeks to transfer the child to a  statutorily preferred placement 



                                                                                    3  

due to licensing concerns with the existing placement.    Because  there is  no basis in   



statutory text or legislative history   to supplant the standard of review chosen by the   



legislature  with a  standard more  deferential to OCS,  we decline  to  do so.  And because  



we mistakenly applied  abuse of discretion   review in  State, Department of Health &   



                                                                                          4  

Social Services,  Office of Children's  Services v. Zander B.,  we overrule that decision   



to the extent it is inconsistent  with  this opinion.    



                                          



                                                                                                                                     



          1  

                    AS 47.10.080(s).   



          2  

                                                                                                           

                    See AS 47.14.100(e) (describing legislative preferences  for out-of-home  

                                                                                                                                     

placement of children in OCS custody, including placement with adult family member  

                                                                                                         

or with family friend who meets foster care licensing requirements).  



          3  

                                                                                                                                     

                    See AS 47.14.100(e)(3) (authorizing OCS to place child with adult family  

                                                                                                                                     

member, family friend "who meets the foster care licensing requirements established  

                                                                                                                                     

by" OCS, and "licensed foster home"); see also AS 47.32.030(a) (giving OCS authority  

                                                                                                   

to develop licensing policy and enforce licensing requirements).  



          4  

                    See  474 P.3d 1153, 1173-74 (Alaska 2020).   



                                                                -2-                                                         7641
  

                                                                                                                                     


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

          FACTS AND PROCEEDINGS   



          A.       Facts   

                   Blythe  and  Danny  are  the  parents  of  three-year-old Gene.5  

                                                                                                        Blythe  has two  



other children,  Gene's half siblings, with a  man named Timothy.  Timothy  has custody   



of those other children; they live  with him and his  parents,  Robert  and Vivian.   



                   In January 2021 OCS filed a non-emergency petition to adjudicate  Gene   



a child in need of aid due to concerns   about  Blythe's   and  Danny's mental health and   



substance  abuse.   Later that  month  OCS  removed Gene  from his parents  and placed him   



with  Robert  and Vivian.  Robert  and Vivian  consider themselves  Gene's  grandparents,  



though they  are  not related to  him  by blood or                marriage.  At the time they agreed to care   



for   Gene   they did not know what being a licensed foster parent entailed.   But they   



expressed willingness  to do what  was  necessary to ensure  Gene's safety.    



                   Because Robert and Vivian were not legally   related to   Gene,   they were   



                                                                  6  

required by law to obtain a foster care license.   They applied for an emergency license,   



listing  Timothy  and his two children as  household members.   Timothy,  who had been   



living with his  two children at  his parents' house,  had a criminal history that included   



barrier crimes.    OCS's licensing division informed Robert and Vivian that   Timothy   



                                                                                        7  

                                                                                                         

could not live in their  home  unless  they received a variance.                           Timothy agreed to live  



                                                                                                                              

in an apartment above his church.  OCS then approved Robert and Vivian 's emergency  



                              

foster care license.  



                                                                                                                              



          5  

                   We use pseudonyms to protect the family 's privacy.   



          6  

                                                                                                                              

                   See AS 47.32.020 (requiring license for all foster homes unless exemption  

                                                                                                                

applies); see also 7 Alaska Administrative Code (AAC) 50.010(a)(6) (2022) (creating  

                                                                                                                             

exemption to foster home licensing requirement for individuals caring for a relative).  



          7  

                   See   AS 47.05.310(a)(3)-(4) (prohibiting someone   who has committed a   

barrier crime from residing at  or  being present  in a  foster  home);  see  also 7 AAC 10.905   

(listing barrier crimes); 7 AAC 10.930 (providing for variances for individuals   who   

have committed barrier crimes).    



                                                                                                                              

                                                            -3-                                                      7641
  


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

                     OCS's initial assessment  caseworker  reviewed the foster care rules and  

                                                                                                                                        



requirements with Robert and Vivian.  The caseworker initially permitted Timothy to  

                                                                                                                                    



transport   Gene   to  and from appointments                        and visitation  to  help  support   Robert   and   



Vivian.  But OCS licensing took the position that Timothy could not be around Gene  

                                                                                                                                        



without supervision due to his barrier crimes.    



                     In   May   OCS   licensing  began   investigating   concerns   that    Timothy   



continued to have unsupervised contact with  Gene.   Later that month  Timothy  brought   



                                                                                                                                        

Gene to a visit, where the new caseworker observed that Gene seemed "more lethargic"  



                                                                                                                                        

and had a mark on his head that concerned her.  Worried that Gene may have suffered  



                                                                                                                                        

a head injury, the caseworker contacted Vivian.  Vivian said she was out of town, but  



                                                                                                                                        

that a babysitter, Robert, and Timothy were caring for Gene and that he had fallen off  



                                                                                                                                        

a  swing.   The  caseworker  then  reminded  Timothy  that he could not transport  Gene  



                                                                                         

alone; in response, Timothy became "extremely upset."  



                                                                                                                                        

                     Beginning to suspect that Robert and Vivian were "not aligned" with OCS  



                                                                                                                                        

and were not being truthful, the caseworker and  an OCS licensing specialist visited  



                                                                                                                                        

Robert and Vivian's home unannounced.  Nobody answered the front door .  The OCS  



                                                                                                                                        

workers heard a door slam, which  sounded like it came from a recreational vehicle in  



                                                                                                                                        

the back  of  the property.   Then  they  saw  Timothy  coming  toward  them.                                           Thinking  



                                                                                                                             

Timothy looked angry, and feeling unsafe, both OCS workers left the property.  



                                                                                                                                        

                     The caseworker and the licensing specialist called Vivian, who was out of  



                                                                                                                       

town at the time.  According to the OCS workers, Vivian stated that Timothy was living  



                                                                                                                                        

in the recreational vehicle and used the home only to cook, use the toilet, and visit the  



                                                                                                                                        

children when someone else was home.  Vivian  said she was not aware that Timothy  



was not allowed to live on the property.  The licensing specialist explained to Vivian  

                                                                                                                                        



                                                                                                                      8  

that Timothy's living on the property was a violation of the foster care rules.    

                                                                                                       



                                                                                                                                        



          8  

                     See  AS 47.05.310(a)(3).   



                                                                 -4-                                                              7641  

                                                                                                                                        


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

                     OCS removed Gene from Vivian and Robert's home.  It transferred Gene  

                                                                                                                                          



to Kathryn, a cousin by marriage on his father's side of the family.  OCS licensing then  

                                                                                                                                          



closed Robert  and  Vivian 's foster  care license.                         



           B.        Proceedings  

                                           



                     In   early   June  2021   Blythe   sought   judicial   review   of   Gene's   placement   

                                                                                             9   Blythe argued that it was  

transfer under Child In Need Of Aid (CINA) Rule 19.1(b).                                                                                  



not in  Gene's best interests to be separated from his  siblings and familiar caretakers.  

                                                                                                                                          



Blythe also challenged OCS's characterization of Kathryn as an adult family member  

                                                                                                                                          

                                                     10 because Kathryn is not biologically related to Gene.  

and therefore preferred placement                                                                                                          

        



                     Robert,  representing  himself,  then  filed   a  motion  to  challenge  the  

                                                                                                                                          



placement transfer.  A week later Robert, Vivian, and Timothy, represented by counsel,  

                                                                                                                                          



moved to join Blythe's challenge to the placement transfer.  They argued that Gene's  

                                                                                                                                          



removal from their care was not in his best interests because he had a close bond with  

                                                                                                                                  



them.    They  also  argued  that  due  to  Gene's  close  bond  with  his  half-siblings,  

                                                                                                                                          



transferring him violated OCS's policy to keep siblings together.  

                                                                                                         



                     The superior court held a multi-day placement review hearing over five  

                                                                                                                                          



months.   In closing  Blythe argued there was clear and convincing evidence that the  

                                                                                                                                          



transfer was contrary to  Gene's best interests and that OCS had not made reasonable  

                                                                                                                                          



efforts to place the siblings together.   Vivian and Robert  argued that removing Gene  

                                                                                                                                          



from  Robert  and  Vivian's  home  based  on  Timothy's  presence  was  an  abuse  of  

                                                                                                                                          



                                                                                                                                          



           9  

                                                                                                                                          

                     CINA Rule 19.1(b) provides that "[a]t any time in a proceeding, a party  

                                                                                                                                          

who is opposed to the Department transferring a child from one placement to another  

                                                                                                                                          

may move the court for a review hearing at which the requesting party must prove by  

                                                                                                                                          

clear and convincing evidence that the transfer would be contrary to the best interests  

                       

of the child."  



           10  

                                                                                                                                          

                     See AS 47.14.100(m) (granting adult family members and family friends  

                                                                                                                                          

denied  placement  the  right  to  notice  of  basis  for  denial  "and  the  right  to  request  a  

                                                                                                                     

[judicial] hearing to review the decision"); see also  AS 47.14.100(e)(3) (establishing  

                                                                                                             

placement preference for adult family members and family friends).  



                                                                                                                                          

                                                                  -5-                                                           7641
  


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

discretion  because   OCS had represented to them that a  variance  was  unnecessary for   



Timothy  to  live  on their land and transport  Gene.   



                   The superior court affirmed   OCS's decision.     The   court's written   order   



contained two separate conclusions.     



                   First,  the court  determined  that OCS did not   abuse  its   discretion when  it   



removed   Gene   from  Vivian  and  Robert's   home.     Applying  the   statutory  placement   



preferences, the court  determined that  Kathryn  was an adult family member and Robert   



and   Vivian   were family friends.     Based on those classifications   the court   ruled that   



Kathryn  had  legal  priority over Vivian and Robert  and that  Vivian  and  Robert  failed to   



show  clear  and  convincing   evidence  of  good  cause  to  deviate  from  this  placement   



                11  

preference.           



                   Second,   the court ruled that   placement with   Kathryn was   "appropriate"   



and  in  Gene's best interests.   The court found  that  Gene  was "doing well"  in  Kathryn's   



home.  It found that  Kathryn  allowed Gene to spend more time with his father and that   



Gene was having quality time  with his  half-siblings.   The court also found that  it would   



not be good to "bounce  [Gene]  from one  placement to another."    



                                                                                                                 12  

                   Blythe  appeals  the court's  decision to affirm the  placement transfer.                         



         STANDARD  OF  REVIEW   



                   This  appeal   primarily   concerns  the   standard  a  court  must  apply  when   



reviewing  OCS's  proposal  to  transfer  a  child  in  its  custody  from  one  out-of-home   



                                   

placement  to  another.           This  is  an  issue   of  statutory  interpretation  and  therefore  a   



                                                                                                                          



         11  

                   See   AS 47.14.100(e) (requiring OCS to place child, "in the absence of   

clear  and convincing evidence  of  good cause  to the  contrary .   .   .  with,  in the  following   

order   of preference, (A)   an adult family member; (B) a family friend   who meets the   

foster care licensing  requirements").    



         12  

                   Robert and Vivian did not appeal the superior court's decision affirming   

OCS's  decision to deny them placement.    



  



                                                          -6-                                                    7641
  

                                                                                                                          


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

question of   law, which we review   de novo,   "adopt[ing] the   rule of law that is most   

persuasive  in  light  of  precedent,  reason,  and  policy."13  

                                                                                    Whether  a  superior  court's   



factual findings satisfy the   applicable requirements   of the CINA   statutes and rules is   



                          14  

reviewed de novo.             



         DISCUSSION   



         A. 	      Regardless   Whether   This  Case  Is  Moot,  We  Address  The  Merits   

                   Under  The Public Interest Exception  To The  Mootness Doctrine.   



                   OCS  argues  this  appeal  is  moot  because  Gene  was  placed in a  trial  home   



visit with his father  while the appeal was pending.  "A claim is  moot if  it  is no longer a   



present, live controversy, and the party bringing the action would not be entitled to   



                                    15  

relief, even if it prevails."           OCS points out  that even if we reversed the superior court's   



order upholding the placement transfer,   Blythe would not obtain   the relief she seeks   



                                                              16  

because  Gene  would remain with his father.                       



                   We  need not  decide  whether this claim is moot  because, even if it were,   



                                                                 17  

we  would decide  it  on public  interest grounds.                   "[W]e use our  discretion to  determine   



whether  the  public  interest    dictates  that  immediate  review  of  a  moot  issue  is   



                                                                                                                           



          13  

                   See  State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Zander   

B., 474 P.3d 1153, 1162  (Alaska  2020).    



          14  

                   Diego K. v. State, Dep't  of Health & Soc. Servs.,   Off. of Child.'s Servs.,  

411 P.3d 622, 627 (Alaska 2018).    



          15	  

                   Mitchell v. Mitchell, 445  P.3d 660, 663 (Alaska 2019) (citations omitted).    



          16  

                   The record does not indicate the status of the trial home visit, and the   

parties   have  not  provided  further   updates  on  Gene's  placement  status  since   oral   

argument.     



          17  

                   In re Off. of Pub. Advoc. , 514 P.3d 1281, 1285 (Alaska  2022) ("[W]e may   

address certain   issues  if they fall within the  public interest exception to the mootness   

doctrine."  (quoting  Akpik v. State, Off. of Mgmt.  & Budget, 115 P.3d 532, 535 (Alaska   

2005))).   



  



                                                           -7-	                                                   7641
  

                                                                                                                           


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

appropriate."18  

                                                                                                                                       

                          The public interest exception to mootness  requires  that  we consider  



                                                                                                                                       

three factors:  "(1) whether the disputed issues are capable of repetition, (2) whether the  



                                                                                                                                       

mootness  doctrine,  if  applied,  may  cause  review  of  the  issues  to  be  repeatedly  



                                                                                                                                       

circumvented,  and  (3)  whether  the  issues  presented  are  so  important  to  the  public  



                                                                                    19                                             20  

                                                                                                                                         

                                                                                        No one factor is dispositive. 

interest as to justify overriding the mootness doctrine." 



                                                                                                                                       

                     The question presented here meets all three factors of the public interest  



                                                                                            

exception.  First, the proper standard of review for OCS's decision to transfer a child  



                                                                                                           

from one placement to another is an issue that will arise frequently.  



                                                                                                                                       

                     Second, this issue is likely to routinely evade review because foster care  



                                                                                                                                       

placements are inherently temporary and typically brief.  A placement dispute is mooted  



                                                                                                                                       

when the child is reunified with a parent or transferred to yet another placement. And  



                                                                                                                                       

if parental rights are terminated, then a parent challenging a placement transfer will lose  



                                                    21  

                                                                                                                                       

standing to pursue the challenge.                       Therefore most challenges to placement transfers  



                                                                                                                                       

will become moot before they can be resolved on appeal.  If we strictly applied the  



                                                                                                                                       

mootness doctrine, the question of the proper standards for placement transfers would  



                                        

routinely evade review.  



                                                                                                                                       



          18  

                    Fairbanks Fire  Fighters Ass 'n, Loc.   1324 v. City of Fairbanks,   48   P.3d  

1165, 1168  (Alaska 2002).   



          19  

                    In re  Off. of Pub. Advoc., 514 P.3d at   1285.   



          20  

                    Fairbanks Fire Fighters Ass 'n,  Loc. 1324 , 48 P.3d at   1168.   



          21  

                     See  AS 47.10.080(s);  CINA Rule 19.1(b) (permitting a party opposed to   

the transfer  of the child to move for review); CINA Rule 2(k)-(l) (defining "party" to   

include parents only if their parental rights have not  been terminated).    



  



                                                                                                                                       

                                                                 -8-                                                          7641
  


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

                     Third,  we have previously held  that clarifying  the standards governing  

                                                                                                                                           

child placement is important to the public interest.22  

                                                                                                                                           

                                                                                    The issue presented in this case is  



                                                                                                               

of similar importance. Therefore we address the merits of this issue.  



                                                                                                                                           

           B.	       The Failure To Consider Whether The Transfer Was Contrary To  

                                                                                        

                     The Child's Best Interests Was Error.  



                     OCS's decision to move Gene from Robert and Vivian's care to Kathryn 's  

                                                                                                                                           



care spawned two distinct legal challenges.  Blythe, a party to the CINA proceeding,  

                                                                                                  



moved to challenge the placement transfer as authorized by AS 47.10.080(s) and CINA  

                                                                                                                                           



                      23  

                                                                                                                                           

Rule  19.1(b).             Robert and Vivian  are not parties  to  this  CINA proceeding, but as  

         



                                                                                                                                           

"family friends" they were authorized to challenge OCS's placement denial with them  



                                                                                   24  

                                                                                                                                 

under  AS 47.14.100(m)  and  CINA  Rule  19.1(e).                                         Although  in  this  case  these  



                                                                                                                                           

challenges  arise  out  of  the  same  decision,  they  are governed  by  different  rules  and  



                    

standards.  



                                                                                                                                           

                     Blythe, appealing the order that rejected her challenge to the placement  



                                                                                                                                           

transfer, argues that the superior court erred by failing to apply the standard described  



                                                                                                                                           

in  AS 47.10.080(s)  and  CINA  Rule  19.1(b):  whether  she  showed  by  "clear  and  



                                                                                                                                           

convincing  evidence  that  the  transfer  would  be  contrary  to  the  best  interests  of  the  



                                                                                                                                           



           22  

                                                                                                                                           

                     See e.g., Jennifer L. v. State, Dep 't of Health & Soc. Servs., 357 P.3d 110,  

                                                                                                                         

114 (Alaska 2015); Peter A. v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s  

                                                                               

Servs., 146 P.3d 991, 996 & n.30 (Alaska 2006).  



           23  

                                                                                                                                           

                     CINA Rule 19.1(b) gives effect to AS 47.10.080(s) by permitting "a party  

                                                                                                                                           

who is opposed to the Department transferring a child from one placement to another  

                                                                                                                                           

[to] move the court for a review hearing at which the requesting party must prove by  

                                                                                                                                           

clear and convincing evidence that the transfer would be contrary to the best interests  

                       

of the child."  



           24  

                                                                                                                                           

                     CINA Rule 19.1(e) gives effect to AS 47.14.100(m) by allowing "a child's  

                                                                                                                                           

adult family member or family friend" denied placement to request a hearing to review  

                                                                                                                                           

OCS's decision to deny placement.  See CINA Rule 19.1(e).   "The adult family member  

                                                                                                                                           

or family friend's participation in the case is limited to being a participant in th[at]  

                               

hearing . . . ."  Id.  



                                                                  -9-	                                                           7641
  

                                                                                                                                           


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

child."        She  maintains  that  the  court  reviewed  OCS's  decision  only  for  abuse  of  

                                                                                                                                           



discretion, which is the correct standard of review for a placement denial but not for a  

                                                                                                                                           



placement transfer.    



                     In response  OCS  makes  two  main  arguments.    First,  it  argues  that  the  

                                                                                                                                           



superior court  did apply  the  clear and convincing evidence  standard.  Second,  it argues   



that  the standard is not controlling in all situations                          .   OCS argues that w            hen  it   seeks to   



transfer a   child to a  placement with higher priority under AS                                   47.14.100(e)  or because  



                                                                                                                                           

the existing placement's conduct violates foster care licensing requirements, the party  



                                                                                                                                           

challenging the transfer must make an additional showing:  that the proposed transfer  



                                                                                  

is an abuse of OCS's discretion.  For support OCS points to our decision in Zander B.,  



                                                                                                                                           

which applied abuse of discretion review when  intervening foster parents challenged  



                                                                                                                                      25  

                                                                                                                                            

                                                                                                                 

OCS's  decision  to  transfer  the  child  from  their  care  to  the  child's  grandmother. 



                                                                                                                                           

According  to  OCS,  Blythe  needed  to  show  that  Gene's  transfer  was  an  abuse  of  



                                                                                                                                       

discretion.  Because the court ruled it was not an abuse of discretion, any failure to  



                                                                                                        

apply the separate clear and convincing standard was harmless.  



                                                                                                                                           

                     We begin by examining the superior court's decision and conclude that it  



                                                                                                                                            

did not apply the clear and convincing evidence standard described in AS 47.10.080(s).  



                                                                                                                                           

We then proceed to consider whether it was correct to apply abuse of discretion review  



                                                                                                                                           

in these  circumstances, as OCS maintains.  Because the Zander B.  decision did not  



                                                                                                                                           

explain why it applied abuse of discretion review to the placement transfer at issue, we  



                                                                                                                                           

begin our analysis by examining the text and legislative history of relevant statutes.  We  



                                                                                                                                           

ultimately  conclude  that  the  legislature  intended  the  clear  and  convincing  evidence  



                                                                                                                                           

standard  to  apply  to  all  placement  transfers  and  did  not  intend  this  standard  be  



                                                                                                                                           

supplanted by the more-deferential  abuse of discretion  standard in the circumstances  



                                                                                                                                           

OCS suggests.  Then, having concluded that Zander B. 's use of abuse of discretion  



                                                                                                                                           



           25  

                                                                                       

                     474 P.3d 1153,  1173-74 (Alaska 2020).  



                                                                                                                                           

                                                                 -10-                                                                7641  


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

review  was  originally  erroneous,  we  overrule  it  to  the  extent  inconsistent  with  this  

                                                                                                                                          



opinion.  

                  



                     1. 	      The       superior         court       did     not      expressly         consider         whether   

                               placement transfer would be contrary to Gene's best interests.  

                                                                                                                                           



                                                                                                                                          

                     OCS  argues  that  the  superior  court  applied  the  clear  and  convincing  



evidence  standard.  It points out that  the court had to consider both Robert and Vivian's                                               



challenge to placement denial (governed by AS                               47.14.100(m)) and Blythe's challenge   



                                                                                                                                          

to  placement  transfer  (governed  by  AS 47.10.080(s))  and  that  the  court's  order  



                                                                                                                                          

discussed each challenge separately.  Regarding the transfer challenge, OCS argues the  



                                                                                                                                          

court found that it was in Gene's best interests to stay in Kathryn 's custody.  OCS argues  



                                                                                                                                          

that  by  analyzing  Gene's  best  interests,  the  court  satisfied  the  requirements  of  



                              

AS 47.10.080(s).  



                                                                                                                                          

                     But the superior court did not consider Gene's best interests in the way  



                                                                                                                                          

required by  AS 47.10.080(s).                     It  focused  on whether  staying  with Kathryn after  the  



                                  

transfer had  already been made was in Gene's best interests.  The court considered  



                                                                                                        

whether Kathryn was the better placement and whether moving Gene a second time,  



                                                                                                                                          

back to Robert and Vivian, would be best for Gene.  Yet nowhere did the court discuss  



                                                                                                                                          

the effect of moving Gene from Robert and Vivian to Kathryn.  It did not mention how  



                                                                                                                                    

changing caregivers would impact Gene.  And its two-part analysis  did not apply the  



                                                                                                                                          

correct standard of review:  clear and convincing evidence.  We therefore disagree with  



                                                                                                        

OCS's assertion that the court's findings satisfy AS 47.10.080(s).  



                                                                                                                                          

                     Although OCS is correct that we will "normally assume that the superior  



                                                               26  

                                                                                                                                          

                                                                   we cannot do so here.  The court expressly  

court has applied the correct standard," 



                                                                                                                                          

applied the wrong standard when discussing the decision to move Gene and failed to  



                                                                                                                                          



          26  

                                                                                                                                          

                     Wasser  &  Winters  Co.  v.  Ritchie  Bros.  Auctioneers,  185  P.3d  73,  83  

                         

(Alaska 2008).  



  



                                                                 -11-	                                                              7641  

                                                                                                                                          


----------------------- Page 12-----------------------

focus on the move's effect on Gene when it did consider Gene's best interests.  Because  

                                                                                                                                             



the court did not correctly apply AS 47.10.080(s), we must decide whether  doing so  

                                                                                                                              



                                           27  

was necessary in this case.                      



                     2.	        When  OCS  decides  to  transfer  a  child  to  a  higher-priority  

                                                                                                                                             

                                placement, the challenger need not show abuse of discretion.  

                                                                                                                                           



                      OCS   argues   that   AS 47.10.080(s)'s   clear   and   convincing   evidence  

                                                                                                                                             



standard is not dispositive in all challenges to placement transfer.  OCS points out that  

                                                                                                                                             



AS 47.14.100(e) directs it to prioritize placement first with family members and then  

                                                                                                                                             



with family friends unless it has clear and convincing evidence of good cause to deviate  

                                                                                                                                             



from   these   placement   priorities.                       When   OCS   follows   the   statutory   placement  

                                                                                                                                             



preferences,  we  have  held  that  the  superior  court  should  review  OCS's  placement  

                                                                                                                                             



                                                    28  

                                                                                                                                             

decision for abuse of discretion.                        Therefore, OCS argues, when it transfers a child to  

                                    



                                                                                                                                             

a higher priority placement, a party challenging the transfer must show both clear and  



                                                                                                                                             

convincing evidence that the transfer is contrary to the child's best interests  and  an  



                                                                                                                                             

abuse of discretion.  Allowing the court to deny a transfer based solely on the child's  



                                                                                                                                             

best  interests  would,  according  to  OCS,  frustrate  OCS's  ability  to  carry  out  the  



                                                                                                     

legislative policy of placing children with family and friends.  



                                                                                                                                             

                      This       argument           requires          us     to      construe          AS 47.10.080(s)               and  



                                                                                                                                     

AS 47.14.100(e) together and harmonize their requirements to the extent possible.  "The  



                                                                                                                                             

goal of statutory construction is to give effect to the legislature's intent, with due regard  



                                                                                                                                             



           27  

                                                                                                                                             

                      OCS argues that even if the court did not apply the clear and convincing  

                                                                                                                                             

evidence standard we can still affirm its order because its unchallenged factual findings  

                                                                                                                                             

do not establish, as a matter of law, clear and convincing evidence that the transfer was  

                                                                                                                                             

contrary to Gene's best interests.  Because the court made no finding about and did not  

                                                                                                                                             

even appear to consider the effect on Gene of changing caregivers, we cannot affirm  

                                                                           

the court's ruling under the correct standard.  



           28	  

                                                                                                       

                     In re B.L.J., 717 P.2d 376, 380-81 (Alaska 1986).  



  



                                                                                                                                             

                                                                  -12-	                                                            7641
  


----------------------- Page 13-----------------------

for the meaning the statutory language conveys to others."29  

                                                                                                                                       

                                                                                             "Interpretation of a statute  



                                  30  

                                                                                                                                       

begins with  its  text."               We  give  unambiguous  statutory  language  its  "ordinary  and  

                              31   We will also "look to legislative history as a guide to construing  

common meaning."                                                                                                                       

a statute's words."32            "Under our sliding scale approach to statutory interpretation, 'the  

                                                                                                                                       



plainer  the  statutory  language  is,  the  more  convincing  the  evidence  of  contrary  

                                                                                                                                       

legislative purpose or intent must be' to guide our understanding of the statute."33                                            We  

                                                                                                                                 



interpret statutes "in context with other pertinent provisions rather than in isolation, and  

                                                                                                                                       

with a view toward reconciling conflict and producing a harmonious whole."34  

                                                                                                                            



                     In In re  B.L.J.  we recognized that OCS has both the  statutory authority  

                                                                                                         

and the expertise to make placement decisions for children in its custody.35                                            Because  

                                                                                                                                       



the legislature committed placement decisions to OCS's discretion, we concluded that  

                                                                                                                                       



the proper standard of judicial review for OCS's placement decisions was the abuse of  

                                                                                                                                       

discretion standard.36  

                                    

                 



                     The   legislature   then   enacted   what   would   become  AS 47.10.080(s),  

                                                                                                                  



providing that "a party opposed to the proposed transfer may request a hearing and must  

                                                                                                                                       



                                                                                                                                       



          29  

                    Ray  v.  State,  513  P.3d 1026,   1033  (Alaska  2022)  (quoting   City  of   Valdez   

v. State,  372 P.3d 240,  254 (Alaska 2016)).   



          30  

                    Pruitt v. Off. of Lieutenant  Governor, 498 P.3d 591,  600 (Alaska  2021).   



          31  

                    Roberge v. ASRC Constr. Holding Co., 503  P.3d 102, 104 (Alaska 2022).   



          32  

                    Id.   (quoting   Cora  G.  v.  State,  Dep't  of   Health  &  Soc.  Servs.,   Off.  of   

Child.'s Servs., 461 P.3d 1265,   1277 (Alaska 2020)).   



          33  

                    Id. at 109 (quoting  Adamson v. Mun .  of Anchorage, 333 P.3d 5, 11 (Alaska   

2014)).   



          34  

                     Good v. Mun.   of  Anchorage ,   450 P.3d 69                     3, 698 (Alaska   2019) (citation  

omitted).    

          35         717 P.2d 376, 380 (Alaska 1986).  

                                                                           

          36        Id. at 380-81.  

                                           



  



                                                                -13-                                                             7641  

                                                                                                                                     
  


----------------------- Page 14-----------------------

prove by clear and convincing evidence that the transfer would be contrary to the best  

                                                                                                                                    

interests  of  the  child  for  the  court  to  deny  the  transfer."37  

                                                                                                                                    

                                                                                            The  proposed  legislation  



                                                                                                                                38  

                                                                                                                                     

initially required that OCS obtain a court order to transfer a child in most instances. 



At a hearing of the House Judiciary Committee, the State, through an assistant attorney  

                                                                                                                                    

general (AAG),39 proposed an amendment with broader language:  "Any party opposed  

                                                                                                                                    



to the proposed transfer may request a hearing and must prove an abuse of discretion  

                                                                                                                                    

by the department for the court to deny the transfer."40                              The AAG explained that this  

                                                                                                                                    



amendment "generally represents the current state of the law":   "the department has  

                                                                                                                                    



discretion to place," and when a party objects there is "a hearing to see if the department  

                                                                                                                                    



                                 41  

abused its discretion."               



                    Legislators         took      issue      with       the     abuse       of    discretion         standard.  

                                                                                                                                     



Representative Ethan Berkowitz proposed  replacing  the  abuse of discretion  standard  

                                                                                                                                    



with a standard requiring "the party opposed [to] prove that it is not in the best interests  

                                                                                                                                    



of the child to approve the transfer," by either a preponderance of the evidence or clear  

                                                                                                                                    

                                       42   The AAG responded that the State's amendment, which  

and convincing evidence.                                                                                                            



                                                                                                                                    



          37  

                    See  ch. 99,  30(s), SLA 1998.   



          38  

                    Committee  Substitute for House  Bill  375  (HES), 20th Leg.,  2d Sess.,   43   

(1998).   



          39  

                    Testimony of  Susan Wibker, Assistant Att'y Gen.  at 44:00-44:30, Hearing  

on  H.B.   375,   before  the  H.   Judiciary   Comm.,   20th  Leg.,  2d   Sess.   (Apr.  23,  1998)   

[hearing on H.B. 375]  (Wibker Testimony).   



          40  

                    Minutes,  House   Judiciary   Comm.  Hearing  on  H.B.  375,  20th  Leg.,  2d   

Sess., at  2096  (Apr. 23, 1998) (emphasis added).   



          41  

                    Wibker Testimony at  44:28-44:45.   



          42  

                    Statement  of Rep.  Ethan Berkowitz,  Hearing on H.B. 375, supra note 39,   

at 46:10-46:22, (Berkowitz  Statement).   



  



                                                              -14-                                                         7641
  

                                                                                                                                    


----------------------- Page 15-----------------------

                                                                                                                            43  

reflected existing law, already required any move to be in the child's best interests.                                           



Representative Berkowitz countered:   



                   But  that's  the  interest  as  determined  by  the  department's   

                    discretion,   not  the  interest  as  validated   by   the   objective  

                    court.     And  .  .  .  that's  an  important   distinction.     For  an   

                    outside party to challenge the department based on they've   

                    abused  their   discretion,  that's   nearly  impossible  to   prove.    

                   But for them to assert  that it's not in the  best interests of the   

                    child  -  which is  what  the  litigation should be  about  -  is a  

                   threshold  we can reach either  with clear and convincing, or   

                   beyond a reasonable doubt, with preponderance.  And that's   

                   where the focus ought to be.[44]   



                    Several   other  participants  at  the   hearing   were  skeptical  of  applying  an   



abuse of  discretion  standard to  placement transfer  decisions and expressed a  preference   



for a   less deferential   standard.  For example, Chairman Joe Green observed that the   



abuse of discretion   standard "seem[ed] a little one-sided" and preferred an "approach   



that would not [set such] an extremely high standard" because  he did not  know how a   



                                                                                          45  

court could possibly deem a transfer an abuse   of discretion.                                  Representative Brian   



Porter stated  that "instead of [having to] prove that there  was an  abuse of discretion by  



the department," a party challenging a transfer should have to "prov[e] the move was   



                                                    46  

not in the  best interests of the child."                                                                                       

                                                        And the deputy commissioner of the Department  



                                                                                                                                

of Health and Social Services agreed, saying that the standard "ought to be the child's  



                                                                                                                                

best  interests. . . .   [T]hat's  a  much  better  construction,  it  seems,  from  a  practical  



                                                                                                                                



          43  

                   Wibker Testimony at  47:55-48:10.   



          44  

  

                                                                           

                   Berkowitz Statement at 48:10-48:57.  



          45  

                                                                                                                                

                    Statement  of  Rep.  Joe  Green,  Hearing  on  H.B.  375,  supra  note  39,  at  

                                                                          

50:52-51:12, 1:02:35-1:02:49 (Green Statement).  



          46  

                    Statement   of Rep.   Brian Porter,   Hearing on H.B. 375, supra note 39,   at   

59:09-59:16 (Porter  Statement).   



  



                                                            -15-                                                       7641
  

                                                                                                                                


----------------------- Page 16-----------------------

standpoint.  It focuses on the purpose, which is to focus on the interests of the child."47  

                                                                                                                                           



                                                                                                                                          

The  hearing  concluded  with  the  committee  adopting  the  standard  now  contained  in  



                                                                                                                                          

AS 47.10.080(s):  the court can deny a transfer if there is clear and convincing evidence  



                                                                                   48  

that it would be contrary to the child's best interests.                               



                                                                                                                            

                     OCS maintains that both this standard and the abuse of discretion standard  



                                                                                                                                          

should apply when a party challenges transfer to a higher priority placement.  In effect  



                                                                                                                             

OCS's argument would render the clear and convincing evidence standard - adopted  



                                                                                                                                          

precisely because it is more objective and less deferential to OCS - ineffective in those  



                                                                                                                                          

cases.       Abuse  of  discretion  review,  as  described  in  In  re  B.L.J.,  examines  OCS's  



                                                                                                                     49  

                                                                                                                         Clear and  

placement decision "to determine if it is in the best interests of the minor." 



                                                                                                                                          

convincing evidence review under AS 47.10.080(s) also focuses on the best interests of  



                                                                                                                                          

the minor.  The difference between the standards of review is the level of deference to  



                                                                                                                                          

OCS's  decision.    Requiring  a  party  challenging  a  placement  transfer  to  make  both  



                                                                                              

showings makes the less-deferential standard superfluous.  



                                                                                                                                          

                     The text of AS 47.10.080(s) does not suggest that the legislature intended  



                                                                                                                                          

its  standard  to  control  only  a  subset  of  placement  transfers.  The  statute  is  broadly  



                                                                                                                                          

written;  it  applies  to  a  "transfer  [of]  a  child,  in  the  child's  best  interests,  from  one  



                                                 50  

                                                                                                                                          

                                                       This  text  does  not  differentiate  between  particular  

placement  setting  to  another." 



                                                                                                                                          

kinds of placement settings, nor does the judicial review provision otherwise limit the  



                                                                                                                                          

kinds of transfers to which the clear and convincing evidence standard applies.  Based  



                                                                                                                                          



           47  

                                                                                                                                          

                     Testimony of Russell Webb, Deputy Comm'r, Dep't of Health & Soc.  

                                                                                                                              

Servs., Hearing on H.B. 375, supra note 39, at 57:15-57:50 (Webb Testimony).  

           48        Minutes, House  Judiciary  Comm.  Hearing  on  H.B.  375,  20th  Leg.,  2d  

                                                                                                                                          

Sess., at 0807 (April 23, 1998).  

                                                    

           49        In re B.L.J., 717 P.2d 376, 380-81 (Alaska 1986).  

                                                                                                     

           50        See AS 47.10.080(s).  

                                                         



                                                                 -16-                                                           7641
  

                                                                                                                                          


----------------------- Page 17-----------------------

on the statutory text, it would seem that the legislature intended this standard to govern  

                                                                                                                                          



all placement transfers.  

                                        



                     The text of A        S  47.14.100(e)  and  (m)  does not require  a judge  to  review a   



proposed placement transfer for abuse of discretion, even if the transfer is to a higher  

                                                                                                                                          



priority placement.   Rather,  our ruling in In re B.L.J.   adopted that standard of review   



for  placement decisions generally.   The legislature then changed the standard of review   



for   the   subset  of  placement  decisions  that  entail   placement   transfers   by  adopting  



                                                                                                                                          

AS 47.10.080(s).     Nothing   in   the   text   of   AS 47.14.100   supplants   or   negates  



                               

AS 47.10.080(s).  



                                                                                                                                          

                     Where   AS 47.14.100   prescribes   a   standard   of   judicial   review,   it  



                                                                                                                                          

reinforces,  rather  than  supplants,  AS 47.10.080(s)'s  clear  and  convincing  evidence  



                                                                                                                                          

standard.  OCS must  show "clear and convincing evidence of good cause" to deviate  

                                                                  51  This standard reflects legislative policy to  

                                                                                                                                          

               

from the statutory placement preferences. 



allow exceptions to the general preference for placement with family and friends.  For  

                                                                                                                                          



example, some children suffer from attachment disorders.  The need to protect a child's  

                                                                                                                                          



hard-won  attachment to a long-term foster parent may be good cause not to place the  

                                                                                                                                          



                                                                                                      52  

child with a family member who has recently sought placement.                                             The standard under              

                                              



                                                                                                                                          



           51  

                     AS 47.14.100(e).   



           52  

                                                                                                                                          

                     Additional placement rules  govern cases arising under the Indian Child  

                                                                                                                                          

Welfare Act (ICWA).  See 25 U.S.C.  1915(b) (establishing placement preferences for  

                                                                                                                                          

Indian child in foster care); see also 25 C.F.R.  23.131 (2023) (same).  An Indian child  

                                                                                                                                          

must be placed according to statutory placement preferences unless good cause exists  

                                                                                                                                     

to  deviate.   25 C.F.R.  23. 129.  What may be considered good cause is limited.   25  

                                                                                                                

C.F.R.  23.132.  For example, a determination of good cause may not be based "solely  

                                                                                                                                          

on  ordinary  bonding  or  attachment  that  flowed  from  time  spent  in  a  non-preferred  

                                                                                                                                          

placement that was made in violation of ICWA."  25 C.F.R.  23. 132(e).  Nor may a  

                                                                                                                                          

placement  "depart  from  the  preferences  based  on  the  socioeconomic  status  of  any  

                                                                                                           

placement relative to another placement."  25 C.F.R.  23. 132(d).  



  



                                                                 -17-                                                               7641  

                                                                                                                                        
  


----------------------- Page 18-----------------------

AS 47.14.100(e)  for  justifying  an  exception  to  the  placement  preferences  is  easily  

                                                                                                                                           



reconciled with  AS 47.10.080(s) when a placement transfer  is involved.  If the party  

                                                                                                                                           



challenging   transfer   to  a  higher-priority  placement    shows   clear  and  convincing   



evidence that the transfer would be contrary to the child's best interests, that is clear  

                                                                                                                                           



and  convincing  evidence   of   good  cause   to  deviate   from   the   statutory   placement   



priorities.     



                     The legislative policy behind AS                      47.10.080(s) was  to   "limit the number                        



                                                                             53  

                                                                                                                                           

of placements that children have to go through"                                  by providing for judicial review of  



                                                                                                                          

proposed transfers that is objective rather than deferential to OCS's position.  Requiring  



                                                                   

abuse of discretion review for a proposed transfer to a higher-priority placement would  



                                                                                                                                     

completely  subordinate  AS 47.10.080(s)'s  policy  to  AS 47.14.100(e)'s  policy   of  



                                                                                                                                           

placement with family and friends.   By contrast, requiring only clear and convincing  



                                                                                                                                           

evidence review in these cases gives effect to both  legislative policies.  A  challenger  



                                                                                                                                           

who shows clear and convincing evidence that transfer is contrary to the child's interests  



                                                                                                                               

has also met the elevated burden of proof to justify  placing the child with a  lower- 



                                                                                                                                           

priority placement.  The clear and convincing evidence standard accomplishes the goal  



                                                                                                                                           

of objective judicial review and the goal of giving weight to the benefit of placement  



                                                                                                                                           

with  friends  and  family.                  It  better  reconciles  the  statutory  policies  than  abuse  of  



                               

discretion review.  



                                                                                                                                           

                     OCS argues that the legislative history shows the legislature intended the  



                                                                                                                                           

clear and convincing evidence standard of AS 47.10.080(s) to apply only when a child  



                                                                                                                                           

is transferred from one nonrelative foster family to another.   It points to legislators'  



                                                                                                                    

statements  suggesting  the  standard  would  apply  only  to  transfers  to  a  "department- 



                                                                                                                                           

approved setting" - i.e. not a family member or friend.  But that does not seem to be  



                                                                                                                                           

what the legislators meant.  These statements were made when the AAG voiced concern  



                                                                                                                                           



           53  

                     See, e.g., Webb Testimony  at  56:19-58:02.   

  



                                                                 -18-                                                                7641  

                                                                                                                                           


----------------------- Page 19-----------------------

that the committee's proposal would allow a party objecting to a transfer to argue that  

                                                                                                                                           

the child should be transferred elsewhere.54  

                                                                                                                                           

                                                                       Representative Dyson rejected the AAG's  



                                                                                                                               

interpretation.  He explained that the committee's proposal would allow a party only to  



                                                                                             

argue  against  the  transfer  that  OCS  had  proposed  -  necessarily  a  "department- 



                                                                                                                        55  

                                                                                                                                           

                                                                                                                                Other  

approved   situation"   -   not   to   propose   an   entirely   new   placement. 



                                                                                       56  

                                                                                                                                           

representatives   agreed   with   Representative   Dyson.                                      Representative   Berkowitz  



                                                                                                                                           

clarified that "[i]t's not as if the other interested party can come in and say, 'Wait a  



                                                                                                                                           

second, I don't want it to go between department-approved, I want it to come to me' or  



                                                                                                                                           

'I want it to go to my aunt,' " because the proposed standard would apply only when  



                                               

the "department already has established that the child is in . . . a department-approved  



                                                                                                                           57  

                                                                                                                                           

                                                                                                                               In this  

setting, and now the department is getting ready to move it to another setting." 



                                                                                                                                           

discussion there is no indication that the legislature intended to limit AS 47.10.080(s)'s  



                                                                                               

application to transfers between nonrelative foster homes.  



                                                                                                                                           

                     Having  considered  statutory  text,  legislative  history,  and  purpose,  we  



                                                                                                                                           

conclude that a party challenging a proposed transfer to a higher priority placement  



                                                                                                                                           



           54  

                                                                                                                                           

                     Wibker  Testimony  at  51:12-51:35;  Statement  of  Rep.  Fred  Dyson,  

                                                                                                                     

Hearing on H.B. 375, supra note 39, at 51:36-51:46, (Dyson Statement).  



           55  

                                                                           

                     Dyson Statement at 51:36-51:46.  



           56  

                                                                                                                                           

                     See Statement of Rep. Jeannette James, Hearing on H.B. 375, supra note  

                                                                                                                                           

39, at 51:46-52:05 ("[If] the department has made a decision to change [the placement],  

                                                                                                                                           

then . . . the argument is whether they should have changed or not. . . . That is not the  

                                                                                                                                           

situation  that  [Wibker  described].");  Berkowitz  Statement  at  52:53-53:09  ("[T]his  

                                                                                                                                           

section just says the department may transfer  a child from one placement setting to  

                                                                                                                                           

another.  So the department has already established that the child is in a placement  

                                                                                                                                           

setting.  So [the child is] in a department-approved setting, and now the department is  

                                                                           

getting ready to move it to another setting.").   

           57        Berkowitz Statement at 52:53-53:20.  

                                                                                 

  



  



                                                                                                                                           

                                                                 -19-                                                            7641
  


----------------------- Page 20-----------------------

must show only clear and convincing evidence that the proposed transfer is contrary to  

                                                                                                                                        



the child's best interests.  The challenger need not also show an abuse of discretion.  

                                                                                                                                    



                     3. 	      When OCS proposes to transfer a child due to disapproval of                                              

                               the existing placement, the challenger need not show abuse of  

                                                                                                                                        

                               discretion.    



                     OCS makes a similar argument with regard to placement transfers based  

                                                                                                                                        



on  foster  care  licensing  issues.     Citing   its  statutory  authority  to  license  foster  care   

           58  OCS argues that AS 47.10.080(s) was not intended to permit a court to force  

homes,                                                                                                                     



continued placement in a home that OCS is no longer willing to  license.  Therefore,  

                                                                                                                                        



OCS argues, a party challenging a transfer based on OCS's decision to deny or revoke  

                                                                                                                                        



the current placement's foster care license must show that OCS abused its discretion in  

                                                                                                                                        



addition to showing clear and convincing evidence that transfer is contrary to the child's  

                                                                                                                                        



best interests.  This argument, like OCS's argument concerning preferred placements,  

                                                                                                                                        



supplants AS 47.10.080(s)'s clear and convincing evidence standard with an abuse of  

                                                                                                                                        



discretion standard.  

                                



                     Revisiting the statutory text, AS 47.10.080(s) is not limited to particular  

                                                                                                                                        



categories of placement transfer.  The statute applies to all transfers, for all reasons.  

                                                                                                                                         



OCS argues that references in legislative history to "department-approved" placements  

                                                                                                                                        



suggest the legislators intended the clear and convincing evidence standard apply only  

                                                                                                                                        



if the department continued to approve the existing placement.  But this interpretation  

                                                                                                                                        



is not convincing because those comments were made in response to the suggestion that  

                                                                                                                                        



the  legislation  would  allow  challengers  to  suggest  some  third,  yet-to-be-designated  

                                                                      

                 59   Legislators did not discuss a scenario in which OCS no longer approved  

placement.                                                                                                                              



                                                                                                                                        



          58  

                     AS 47.32.020(b).    



          59  

                                                                                                                                        

                     See, e.g., Wibker Testimony at 51:12-51:35 (explaining State's concerns  

                                                                                                                                        

that this statute would permit parties to move for child to be moved to home that was  

  



                                                                -20-	                                                         7 

                                                                                                                                        

                                                                                                                                641
  


----------------------- Page 21-----------------------

the existing placement.60  

                                                                                                                   

                                          Therefore this snippet of legislative history is not enough to  



                                                                                                                                          

convince us that AS 47.10.080(s) was intended to govern a narrower range of cases than  



                             

its text suggests.  



                                                                                                                                          

                     That said, we doubt the legislature intended AS 47.10.080(s) to authorize  



                                                                                                                                          

a court to force OCS to keep a child in a placement that is prohibited by state or federal  



                                                                                                                                          

law.  For example, if a potential foster parent has been convicted of a felony involving  



                                                                                                                                          

violence against a child, both federal and state law prohibit OCS granting a variance so  



                                                                           61  

                                                                                                                                          

                                                                                A court may not force OCS to keep  

that the person may obtain a foster care license. 



                                                                                                                                          

a  child  with  that  placement  -  potentially  jeopardizing  OCS's  federal  foster  care  

            62  -  even if firmly convinced that moving the child would be contrary to the  

funding                                                                                                                                   



child's best interests.  

                                   



                     Yet  in  many  instances  the  conduct  or  conditions  that  prompt  OCS's  

                                                                                                                                          



concerns  about  continued  placement  with  a  foster  family  do  not  automatically  

                                                                                                                                          



disqualify  continued  placement.                      Although  such  conduct  is  grounds  for  denying  or  

                                                                                                                                          



revoking  a  foster  care  license,  OCS  has  authority  to  allow  continued  placement  by  

                                                                                                                                          



                                                                                                                                          



                                                                                                                                          

not  department-approved);  Dyson  Statement  at  51:35-51:53  (explaining  that  in  a  

                                                                                                                                

transfer situation child would "already be in a department-approved situation").  



           60  

                                                                                                                                          

                     See  generally  Minutes,  House  Judiciary  Comm.  Hearing  on  H.B.  375,  

                                                                        

20th Leg., 2d Sess., at 2096 (Apr. 23, 1998).  

           61        See  42  U.S.C.    671(a)(20)(A)(i)  (prohibiting  placement  approval  for  

                                                                                                                                          

prospective foster parents convicted of felony involving spousal abuse, child abuse or  

                                                                                                                                          

neglect,  other  crimes  of  violence,  other  crimes  against  children);  7  AAC  10.930(g)  

                                                                                                                                          

(stating the department will not grant variance for crimes for which federal law prohibits  

                                                                                                                                          

approval).  

                  

           62        See  42  U.S.C.    671(a)(20)(A)(i)  (making  state  ineligible  for  federal  

                                                                                                                                          

funding if state permits prospective foster or adoptive parent convicted of enumerated  

                                                                                                                                          

felony).  

              



  



                                                                                                                                          

                                                                 -21-                                                           7641
  


----------------------- Page 22-----------------------

granting a variance.63  

                                                                                                                                          

                                     This brings us back to the question at hand.  If OCS decides to  



                                                                                            

transfer a child due to this kind of excusable  deficiency by the foster family, must a  



                                                                                                                                          

party challenging the transfer show that OCS's decision is both an abuse of discretion  



                                                                               

and clearly contrary to the child's best interests?  



                                                                                                                                          

                     OCS does not point to any statutory text that mandates abuse of discretion  



                                                                                                                                          

review in this scenario.  There is no direct judicial review of OCS's foster care licensing  



                64  

                                                                                                                                          

decisions.           Licensing decisions are reviewable only indirectly, when a court reviews  



                                                                                                                                          

a     placement          denial       under       AS 47.14.100(m)                or    a    placement           transfer       under  



                                                                                                                                          

AS 47.10.080(s).              As  noted  above,  we  adopted  the  abuse  of  discretion  standard  to  



                                                                                                                                          

review  those  decisions  in  In  re  B.L.J.,  and  the  legislature  then  adopted  a  different  



                                                                                                           

standard for transfers in AS 47.10.080(s).   The statutes OCS cites for its authority to  



                                                                                                                                          

make licensing decisions do not contain standards for judicial review that supplement  



                                                                                                                               65  

                                                                                                                                     

                          

or supplant AS 47.10.080(s)'s standard for judicial review of proposed transfers. 



                     OCS  argues that  abuse of discretion review is needed to prevent  courts  

                                                                                                                                          



forcing continued placement  of a child with a foster  family that OCS disapproves of.   

                                                                                                                                    



The argument is unpersuasive because abuse of discretion review does not preclude that  

                                                                                                                                          



                                                                                                                                          



           63  

                                                                                                                                          

                     See AS 47.32.030(a)(3)(D) (conferring authority on OCS's parent agency  

                                                                                                                                          

to pass regulations providing for variances and exceptions to licensing requirements);  

                                                                                                                                          

7 AAC 10.9505 (providing for general variances for foster care licensing requirements);  

                                                                                                                                          

7 AAC 10.930 (providing for variances for barrier crimes).  According to OCS policy  

                                                                                                                                          

the  agency  will  grant  a  variance  only  if  there  is  an  alternative  to  the  condition  or  

                                                                                                                                          

requirement in question that "adequately protects the health and safety of children in  

                    LASKA OFF. O          F CHILD.'S SERVS.,  COMMUNITY CARE  LICENSING  MANUAL   

care."  See A 

  225  (2016).    

           64        See AS 47.32.070 (providing for administrative review of OCS's licensing  

                                                                                                                                          

decisions with Department of Family and Community Services, but not providing for  

                                                                                                                                          

judici al review of these decisions).  

                                                          

           65        See       AS      47.32.020(a)             (not      providing          a     standard         of     review);  

                                                                                                                                          

AS 47.32.010(b)(3) (same).  

                                              



  



                                                                 -22-                                                           7641
  

                                                                                                                                          


----------------------- Page 23-----------------------

possibility.  Any standard of judicial review entails the possibility of OCS being forced  

                                                                                                                                           

to  place a child  with  a person of whom it does not approve.66  

                                                                                                                                           

                                                                                                        The  contrary  to  best  



                                                                                                                                           

interests review may be  less deferential to OCS, but that does not make it  inherently  



                                                                                                      

incompatible with OCS's authority over foster-care licensing.  



                                                                                                                                           

                     The difference between the standards, though  significant, is unlikely to  



                                                                                                                                           

result in many proposed placement transfers being denied.  Foster care licensing is not  



                                                                                                                                           

a mere technical requirement.  It is "closely tied to OCS's statutory responsibilities as  



                                                                                           67  

                                                                                                                                           

well as the safety and security of the children in its care."                                   Evidence that the existing  



                                                                                                                                           

placement  cannot  meet  licensing  requirements  will  often  reflect  on  the  placement's  



                                                                                                                                           

ability to provide a safe and healthy home for the foster child.  Licensing failures by the  



                                                                                                                                           

current placement will therefore be highly relevant to determining whether the transfer  



                                                                                                                                           

is  clearly  contrary  to  the  child's  best  interests.                             Yet  the  clear  purpose  behind  



                                                                                                                                           

AS 47.10.080(s)  was  to balance  the suitability of the existing placement against the  



                                                                                                                                           

potential harm from disrupting the child's attachments and stability -  and to have a  



                                                                                                                                           

court  objectively  review  that  balance  rather  than  deferentially  review  OCS's  own  



                                                                                                                                           

determination.  We decline to undermine these legislative purposes by supplanting the  



                                                                                                                                           

clear and convincing evidence standard of review expressly adopted by the legislature  



                                                                                                                                           

with a judicially derived abuse of discretion standard.  A party challenging a placement  



                                                                                         

transfer need not show that OCS abused its discretion.  



                                                                                                                                           

                     4.	        We overrule the portion of Zander B. that applied an abuse of  

                                                                                                           

                                discretion standard to placement transfers.  



                                                                                                                                           

                     OCS  relies  on  our  decision  in  Zander  B.,  which  applied  an  abuse  of  



                                                                                                                                           

discretion standard to a transfer challenge.  In that case the child's foster parents sought  



                                                                                                                                           



           66  

                                                                                                                                           

                     See AS 47.14.100(m) (authorizing certain people to seek judicial review  

                                                                                                                                           

of   placement   denial   and   therefore   contemplating   courts   could   overturn   OCS's  

                                                                                                                         

placement decisions, even if based on considerations related to licensing).  



           67	  

                                                                                                                         

                     In re Adoption of Missy M., 133 P.3d 645, 652 (Alaska 2006).  



  



                                                                                                                                           

                                                                 -23-	                                                           7641
  


----------------------- Page 24-----------------------

to challenge OCS's decision to remove the child from their care and transfer him to his  

                                                                                                                                          

maternal grandmother.68  

                                                                                                                                          

                                         The CINA statutes do not expressly authorize foster parents  



                                                                                                                                          

to challenge placement  denials  or placement transfers.  The foster parents sought to  



                                                                                                                                          

intervene  so they could invoke AS 47.10.080(s)  to challenge OCS's decision.  After  



                                                                                                                                          

holding that the superior court did not err or abuse its discretion in allowing the foster  



                                                                                                                                          

parents to intervene, we affirmed the superior court's determination that the proposed  



                                                           69  

                                                                                                                                          

                                                                 The  opinion  did  not  explain  why  abuse  of  

transfer  was  an  abuse  of  discretion. 



                                                                                                                                          

discretion review was proper or cite authority holding that abuse of discretion review  



                                                70  

applies to placement transfers.                        



                     For the reasons described above, applying abuse of discretion review to a  

                                                                                                                                          



placement transfer challenge was wrong.  We therefore must decide whether to overrule  

                                                                                                                                          



this aspect of Zander B.  We will overrule a prior decision only when clearly convinced  

                                                                                                                                          



that (1) "the rule was originally erroneous or is no longer sound because of changed  

                                                                                                                                          



conditions"  and  (2)  "more  good  than  harm  would  result  from  a  departure  from  

                                                                                                                                          



                  71  

precedent."             



                     A  decision  is  originally  erroneous  if  the  rule  announced  proves  to  be  

                                                                                                                                          



"unworkable in practice" or if the other party "would clearly have prevailed" if the issue  

                                                                                                                                          



                                                                                                                                          



           68  

                                                                                                                        

                     State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs. v. Zander B.,  

                                                           

474 P.3d 1153, 1157 (Alaska 2020).  

           69        Id. at 1171-72.  

                                               



           70  

                                                       

                     Id.  at  1173-74.  The  opinion  addressed  the  standard  of  review  only  to  

                                                                                                                                          

disavow previous assertions that the superior court's finding of an abuse of discretion  

                                                                                                                                          

is reviewed for clear error, as was stated in A.H. v. State , 779 P.2d 1229, 1234 (Alaska  

                                                                                                                                          

1989).  The opinion clarified that abuse of discretion review is a mixed question of fact  

                                                                   

and law.  Zander B, 474 P.3d at 1173-74.  



           71  

                                                                                                                                          

                     Buntin v. Schlumberger Tech. Corp., 487 P.3d 595, 603 (Alaska 2021)  

                                                                                                   

(quoting  Wassillie v. State, 411 P.3d 595, 611 (Alaska 2018)).  



  



                                                                 -24-                                                           7641
  

                                                                                                                                          


----------------------- Page 25-----------------------

in question had been "fully considered."72  

                                                                                                                                      

                                                                     In Zander B.  the parties' briefing on the  



                                                                                                    

applicable  standards of  review was not entirely  clear.                               OCS's  brief  mentioned both  



                                                                                                                    

abuse of discretion and clear and convincing evidence review but did not explain the  



                                                                                                                                      

relationship between the two standards.   The foster family's brief appeared to accept  



                                                                                                                                      

the  abuse of discretion  standard.  Our decision expressly applied abuse of discretion  



                                                                       73  

                                                                                                                                      

                                                                              Had  the  foster  parents  made  the  

review  without  discussing  AS 47.10.080(s). 



                                                                                                                                       

arguments that Blythe made in this case, they clearly would have prevailed on this issue.  



                                                                                               

Therefore Zander B. was originally erroneous on this point.  



                                                                                                                                

                    Deciding whether more good than harm would result from overruling our  



                                                                                                                                      

precedent requires balancing "the benefits of adopting a new rule against the benefits  



                         74  

                                                                                                                                      

                             The scale tips clearly in favor of correcting our mistake.  First, doing  

of stare decisis." 



                                                                                                                                      

so  respects  the  separation  of  powers  by  giving  effect  to  legislative  intent.                                 Second,  



                                                                                                     75  

                                                                                                                                      

                                                                                                          It seems unlikely  

Zander B. is only two years old and has been relied on very little. 



                                                                                                                                      

that OCS or particular individuals have made decisions or structured their affairs in  



                                                                                                                                      

reliance on the particular standard used to review placement transfers.  Correcting this  



                                                                                                                                      

error  will  cause  little  disruption.    Therefore  we  overrule  Zander  B.  to  the  extent  



                                                 

inconsistent with this opinion.  



                                                                                                                                      



          72  

                    Id.  (emphasis  in original).   



          73  

                    Zander B., 474 P.3d at 1173-74.    



          74  

                    Buntin,   487 P.3d  at   605 (quoting State   v. Carlin, 249 P.3d 752,   761-62   

(Alaska 2011)).   



          75  

                    See  Laura M.-J. v. State,  Dep 't of Health  &  Soc. Servs., Off. of Children 's  

Servs., No. S-18094, 2022 WL 2825676,  at   *5 (Alaska July 20, 2022);  see also   Celia   

W. v.  State,  Dep 't of Health & Soc. Servs., Off. of Child. 's Servs., No. S-17954, 2021   

WL 4191436,  at *3  (Alaska Sept. 15,  2021)  (distinguishing  Zander B.  as "not exactly   

on point").   No other  cases  from  our  court  have  relied on Zander B.  when applying an   

abuse of  discretion standard to a transfer challenge.     



  



                                                                                                                                      

                                                               -25-                                                          7641
  


----------------------- Page 26-----------------------

           C.	        The  Error  In  Applying  The  Placement  Preference  Statute  Was  

                                                                                                                                             

                     Harmless.   



                      "Alaska law has long demonstrated a preference that children who are in                                                

                                                                                76   When a child is taken into OCS's  

OCS's custody be placed with family members."                                                                                                



custody, OCS must place the child, "in the absence of clear and convincing evidence of  

                                                                                                                                             



good cause to the contrary, . . . with, in the following order of preference, (A) an adult  

                                                                                                                                             



family member; (B) a family friend who meets the foster care licensing requirements  

                                                                                                                                             



established by the department; (C) a licensed foster home . . . ; [or] (D) an institution  

                                                                                                                                             

                       77    The  superior  court  determined  that  Kathryn  was  an  adult  family  

for  children."                                                                                                                              



member and that Vivian and Robert were family friends.  The superior court then ruled  

                                                                                                                                             



that  Kathryn had priority  over Robert and Vivian by law  and that there had been no  

                                                                                                              



showing of good cause to deviate from the statutory placement preferences.  

                                                                                                                            



                     Blythe  argues that the superior court erred by classifying Kathryn  as an  

                                                                                                                                             



                                                                                                                                        78  

adult  family  member  because  Kathryn  does  not  meet  the  statutory  definition.                                                         

                                                                                                                       



Describing Kathryn  as  Gene's step-cousin, Blythe  argues that Kathryn was merely a  

                                                                                                                      



family friend and therefore was not preferred over Robert and Vivian, who were also  

                                                                                                                                             



family friends.   



                     Kathryn  is  not  Gene's  adult  family  member  for  purposes  of  statutory  

                                                                                                                                             



placement preference.  The CINA statutes define  an "adult family member" in cases  

                                                                                                                                             



not involving an Indian child as "a person who is 18 years of age or older and who is  

                                                                                                                                             



(A) related to the child as the child's grandparent, aunt, uncle or sibling; [or] (B) the  

                                                                                                                                             



                                                                                                                                             



           76  

                                                                                                                                             

                     Irma E. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 312  

                                                 

P.3d 850, 853 (Alaska 2013).  



           77	  

                                                   

                     AS 47.14.100(e).  



           78  

                                                                                                                                             

                     See  Diego  K.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Off.  of  Child.'s  

                                                                                                                                             

Servs., 411 P.3d 622, 627 (Alaska 2018) (reviewing de novo whether superior court's  

                                                                               

findings satisfy requirements of CINA statutes).  



  



                                                                                                                                             

                                                                  -26-	                                                            7641
  


----------------------- Page 27-----------------------

                                                             79  

child's sibling's legal guardian or parent."                     Kathryn is a cousin by marriage and does   



not meet the  definition  of adult family member.    



                   Kathryn  nevertheless qualifies  for some placement preference as  a family   



friend.  She testified that she had known Danny  his entire life,  that  Danny  and  Blythe   



had introduced  Gene  to her when he was an infant, and that she  had "intermittently"   



seen  him at family functions.   Although her relationship to Gene  did not  grant her adult   



family member status, it did render her exempt from foster care licensing requirements   



                      80  

as his relative.           Kathryn   was therefore "a family friend who  meets the foster care   



                                                                               81  

licensing requirements established by the department."                             



                   Robert  and  Vivian, on t  he other hand,  are  no  longer  entitled to placement   



preference   as family friends   because they failed to comply with   the requirements   of   



                                                   82  

their emergency foster  care  license.                 OCS  granted them a license  on the condition that   



Timothy, who had committed multiple  barrier  crimes, would not  live on t  heir property.    



The superior court found that  Robert and Vivian  violated this condition.    



                   The superior court's classification  errors  are harmless because  they  offset   



each other.   Kathryn,  a family friend who meets foster care licensing requirements by   



virtue of   being exempt from them, is preferred to Robert and Vivian, family friends   



who   do  not  meet  foster  care  licensing  requirements.    The  superior  court's  ultimate   



                                                                                                                              



          79  

                   AS 47.10.990(1).   



          80  

                   See   7 AAC 50.010(a)(6) (exempting individuals operating foster homes   

"only  for   one   or  more  relatives");  7  AAC  50.990(42)  (defining  "relative"  as  "an   

individual who is related to another by blood, adoption, marriage, or tribal custom").    

7  AAC  50.010(a)(6)  was repealed in July 2022 but  was in force at the time the decision   

was made to render  Kathryn exempt.    



          81  

                                                             

                   See AS 47.14.100(e)(3)(B).  



          82  

                                                                                                                              

                   The  plain  language  of  AS  47.14.100(e)  limits  priority  placement  for  

                                                                                                          

"family  friend[s]"  only  to  those  "who  meet[]  the  foster  care  licensing  requirements  

                                                

established by the department."  



  



                                                                                                                              

                                                           -27-                                                      7641
  


----------------------- Page 28-----------------------

conclusion was correct:  OCS did not have to show clear and convincing evidence of  

                                                                                                                                       



good cause to justify placing Gene with Kathryn instead of Robert and Vivian.  

                                                                                                                            



          D. 	       The      Superior          Court       Did      Not      Fail      To     Apply        The       Statutory   

                     Presumption That Maintaining A Child's Relationship With Siblings  

                                                                                                                                       

                     Is In the Child's Best Interests.   



                     The  legislature  has  directed  courts  to  "recognize  a  presumption  that  

                                                                                                                                       

                                                                                                                        83    This  

maintenance   of   a   sibling   relationship   .  .  .   is   in   a   child's   best   interest[s]."                         



presumption focuses on the  sibling relationships; it is not a presumption that siblings  

                                                                                                                                       

be placed in the same household.84   Blythe argues that the superior court's order failed  

                                                                                                                                       



to   acknowledge   Gene's   strong   relationship   with   his   siblings   or   the   statutory  

                                                                                                                                       



presumption that maintaining a child's relationship with siblings is in the child's best  

                                                                                                                                       



interests.  

                 



                     The superior court adequately considered the relationship and applied the  

                                                                                                                                       



presumption.   The court found credible testimony that Gene was "very close with his  

                                                                                                                                       



half-siblings,"  that his  bond with  them "was  probably stronger" than his bond with  

                                                                                                                                       



Kathryn, and that Kathryn was aware that Gene "misses his half-siblings."  The court  

                                                                                                                                       



also found that although "there was some trouble setting up visits" because Kathryn and  

                                                                                                                                       



Vivian had a "text altercation," Kathryn "is very supportive of the sibling relationships"  

                                                                                                                                       



and facilitates weekly in-person visits and additional phone visits with them.  When the  

                                                                                                                                       



court analyzed Gene's placement with Kathryn, the court further noted that Gene was  

                                                                                                                                



"having quality time" with his half-siblings. Placement with Kathryn therefore supports  

                                                                                                                                       



the maintenance of Gene's sibling relationships, and we see no error in the superior  

                                                                                                                                       



court's treatment of this issue.  

                                                  



                                                                                                                                       



          83  

                     AS 47.10.080(w).   



          84  

                                                                                                                                       

                     A  separate  statute  requires  OCS  to  "make  reasonable  efforts  to  place  

                                                                                                                                       

siblings in the same placement if the siblings are residing in the same home when taken  

                                                                                                                                       

into the custody of the department."  AS 47.14.100(r).  This statute does not apply to  

                                                                                                                                       

Gene,  who  lived  in  a  different  household  than  his  half-siblings  at  the  time  he  was  

                                                    

removed from his parents' care.  



                                                                                                                               641
  

                                                                                                                                       

                                                                -28-	                                                         7 


----------------------- Page 29-----------------------

  CONCLUSION   



         We REVERSE the superior court's decision.    



  



                                                                                                                

                                                  -29-                                                 7641
  

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