Standard of Proof for Residential Placement of Minor in State’s Custody

Facts of the Case

In 2021, OCS filed an emergency petition for temporary custody of Hanson N. (a pseudonym adopted by the court), a 15-year-old boy from Tuluksak, Alaska, and member of the Tuluksak Native Community (also referred to as the Tribe). He was subsequently removed from his mother’s care and placed in the care of an extended relative. Several months later, Hanson presented voluntarily to an emergency room and was admitted to North Star Behavioral Hospital without involvement of OCS or the court. The reason for admission was that Hanson “had some sort of incident…took a rope and tied it around his neck” (Tuluksak, p 363). OCS then requested an Alaska Stat. § 47.10.087 review hearing. A statewide injunction required this judicial hearing within 30 days. Alaska Stat. § 47.10.087 allows a court to authorize OCS to place a child in its custody into a secure residential psychiatric treatment center if certain statutory conditions are met. It requires showing that the child is “gravely disabled or is suffering from mental illness and, as a result, is likely to cause serious harm to the child or to another person” and that “there is no reasonably available, appropriate, and less restrictive alternative for the child's treatment” (Alaska Stat. § 47.10.087).

Neither Hanson nor his attorney were present at the initial hearing. Tuluksak Native Community filed a response to OCS’s hearing request questioning whether the statute applied because Hanson had been voluntarily admitted to North Star. The Tribe also raised arguments regarding discovery and requested a continuance.

Over the objection of the Tribe, the court proceeded with the hearing. OCS called Mr. Sabo, one of Hanson’s treatment providers at North Star who testified about Hanson’s condition. OCS argued that there was clear and convincing evidence that Hanson experienced a “mental illness,” was dangerous to himself and needed placement exceeding 30 days. The court found that Hanson met criteria for placement under Alaska Stat. § 47.10.087. Three further hearings were held. During the second hearing, neither Hanson nor his attorney were present, so the court did not proceed. At the third hearing, Hanson’s attorney appeared but stated they were not ready to proceed and reported that Hanson did not want to be moved out of state. At the final hearing, Hanson and his attorney were present. OCS notified the court that they were seeking Hanson’s placement at an out-of-state residential facility. Mr. Sabo testified again, describing Hanson’s mental illness, threats to others, and suicidal statements. He stated that Hanson needed long-term psychiatric care. OCS called a nurse consultant, John Luchansky, to testify about the proposed placement for Hanson. Mr. Luchansky testified that Hanson was accepted at two of nine facilities North Star had applied to, in Texas and Utah. Mr. Luchansky testified that OCS looked for treatment facilities which accepted Alaska Medicaid. Mr. Luchansky was not aware if Indian Health Services maintained a list of “tribally affiliated” facilities. At the conclusion of the hearing, the court found that OCS had “barely met its burden” regarding statutory placement criteria (Tuluksak, p 367) but that Hanson could be placed out of state with review hearings held every 30 days.

The Tribe appealed the placement decision, raising several points: the application of Alaska Stat. § 47.10.087 to this case was unconstitutional; the court erred by applying the incorrect standard of proof; and the court erred by placing Hanson at a secure residential treatment facility without making appropriate findings under the ICWA or Alaska law. The Tribe raised other constitutional arguments, but the court did not consider them.

Ruling and Reasoning

First, the Alaska Supreme Court held that OCS was correct to proceed under Alaska Stat. § 47.10.087 to seek placement for a minor in its care. The court cited its recent decision in In re Hospitalization of April S., 499 P.3d 1011 (Alaska 2021). In this case, a minor in OCS custody was hospitalized for a mental health evaluation. At the 30-day commitment hearing, the superior court held that the first 30 days of the minor’s hospitalization were voluntary under Alaska Stat. § 47.30.690 (2022), a statute that allows a child to be admitted to a treatment facility if the parent or guardian signs admission paperwork. But, the Alaska Supreme Court reversed, holding that OCS did not qualify as a parent or guardian, and that OCS cannot voluntarily commit minors in its care. Rather, OCS has the option to pursue an involuntary commitment or seek placement in a secure residential treatment facility under Alaska Stat. § 47.10.087. Therefore, in Hanson’s case, proceeding under Alaska Stat. § 47.10.087 was appropriate.

Second, the Alaska Supreme Court held that the lower court did apply the correct standard of proof at the .087 hearing. Notably, Alaska Stat. § 47.10.087 does not explicitly identify the applicable standard of proof. The Tribe argued that because the court described the evidence presented as “barely” meeting the standards in Alaska Stat. § 47.10.087, the court must have assumed the appropriate standard of proof was preponderance of the evidence. The Alaska Supreme Court did not agree and stated that a clear and convincing standard was appropriate for the involuntary commitment of a minor. The trial court met this standard by considering Mr. Sabo’s testimony and concluding that a residential facility was the best placement for Hanson. The court noted that placing a minor in a psychiatric facility “implicates protected liberty interests to such a degree that a lesser standard would not be appropriate” (Tuluksak, p 373).

Third, the state supreme court held that the lower court’s failure to explicitly apply ICWA placement preferences was not plain error but that the court should always consider these preferences when placing Native children in foster care in residential facilities. Section 1915(b) of the ICWA emphasizes that Native children should be placed in “reasonable proximity” to their home, with preference for placement at Native-approved institutions. Placing a Native American child at a secure residential psychiatric facility is considered a foster care placement, and the court stated that an .087 hearing involves the placement preferences outlined by the ICWA. Importantly, no party directly raised an ICWA argument before the trial court or objected to the placement of Hanson on ICWA grounds. The court noted that limited treatment facilities were available, tribally affiliated or not, that were able to meet Hanson’s treatment needs. The court observed that although the trial court record did not identify tribally run facilities that may have been appropriate for Hanson, it was not obvious that the failure to do so was prejudicial or would have changed the outcome of Hanson’s placement.