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State v. Jacob

Supreme Court of Alaska

August 28, 2009

STATE of Alaska; Marcia Kennai, in her official capacity as Deputy Commissioner of the Office of Children's Services of the Alaska Department of Health and Social Services; and the Office of Children's Services of the Alaska Department of Health and Social Services, Appellants,
David and Joyce JACOB, Appellees.

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[Copyrighted Material Omitted]

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Joanne M. Grace, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellants.

Daniel G. Rodgers, Alaska Immigration Justice Project, Anchorage, for the Appellees.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.


CHRISTEN, Justice.


David and Joyce Jacob sued the State of Alaska, Office of Children's Services (OCS) in March 2004 for declaratory and injunctive relief regarding OCS's failure to provide them notice of their grandchildren's CINA and permanency proceedings. The superior court dismissed the suit, but this court reversed and remanded for entry of declaratory judgment on one of the Jacobs' claims. After the declaratory judgment was entered, the Jacobs filed a motion for full attorney's fees under AS 09.60.010(c) for prevailing on a constitutional claim, or, in the alternative, for enhanced fees under Alaska Civil Rule 82. The superior court awarded the Jacobs full fees or, as an alternative, half of their total fees under Rule 82(b)(3). OCS appeals. We affirm the prevailing party determination, reverse the award of full fees, and affirm the alternative award of enhanced Rule 82 fees.


We described the facts underlying this case in Jacob v. State, Department of Health and Social Services, Office of Children's Services ( Jacob I )[1]:

Minors A.K., D.L., and E.H. are the grandchildren of David and Joyce Jacob. The mother of the three children struggled with drug dependency and as a result the Jacobs often assumed care of their grandchildren. In 1997 a Washington state court granted the Jacobs joint custody of the children with their mother. In 1999 the Jacobs agreed that the children could move to Alaska with their mother because she had been sober for quite some time. But in 2000 the mother relapsed, and in October 2000 the children were taken into custody by the Office of Children's Services (OCS).
When the Jacobs learned from the children's mother in December 2000 that OCS had custody of the children, they immediately sent a letter to OCS stating that they were the children's grandparents, had joint custody, and wanted OCS to place the children in their care. OCS did not respond to the letter and the children remained in foster care. Between December 2000 and March 2004 the Jacobs made dozens of attempts to communicate with OCS, including leaving messages for the caseworker and the caseworker's supervisor, Tim Fox. On one occasion, Fox allegedly told the Jacobs that they were too old to care for the children.
Over the next three and one-half years OCS never sent the Jacobs notice of any court hearings regarding their grandchildren's CINA proceedings, including those that occurred after the September 2001 effective date of amendments to the CINA statutes requiring grandparent notice. During that time period the Jacobs never filed a motion to formally intervene in their grandchildren's CINA cases and never filed a petition requesting that the children be placed in their care.[2]

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The Jacobs filed a complaint in the superior court in March 2004, alleging these facts and requesting declaratory and injunctive relief. They sought a declaration that OCS violated their rights by failing to place their grandchildren with them and by failing to give them notice of hearings in their grandchildren's CINA hearings. They also sought an injunction compelling OCS to provide to the Jacobs and " all other grandparents similarly situated" written notice of and the opportunity to be heard at CINA hearings, as well as immediate placement of the Jacobs' grandchildren with the Jacobs " until and unless [OCS] show[s] by clear and convincing evidence that placement of the children with [the Jacobs] will result in physical or mental injury to the children."

OCS filed a motion to dismiss, arguing that the superior court lacked jurisdiction because the court presiding over the CINA proceedings had exclusive jurisdiction over the claims presented. OCS also argued for dismissal for failure to state a claim for which relief may be granted, reasoning that the Washington state custody order on which the Jacobs relied was not entitled to full faith and credit because it had not been registered in Alaska. Finally, OCS argued that the Jacobs' chosen venue was improper.

The Jacobs filed a cross-motion for partial summary judgment. They contested OCS's arguments for dismissal and asked the superior court to enter judgment on the issue of whether OCS violated their rights under AS 47.10.030(d), AS 47.10.080(f), and AS 47.14.100(e).[3] The Jacobs argued that there was no factual dispute regarding OCS's failure to comply with the statutory notice requirements and that those rights " trigger due process concerns." They then described the information they contended OCS needed to include in its written notice to comply with due process.

In response, OCS argued that because AS 47.10.030(d) did not go into effect until September 23, 2001, after the adjudication and disposition orders were entered in the grandchildren's CINA case, prior failures to send notice to the Jacobs did not violate that statute. OCS conceded that AS 47.10.080(f) was in effect when the permanency hearings for the Jacobs' grandchildren occurred but argued that the proper remedy for violation of that provision was intervention in the existing CINA proceeding. Regarding the Jacobs' due process argument, OCS responded that " [a]ny ‘ due process' issues are covered by the [notice] statute," so there was no basis for " expand[ing] the obligation of the Department beyond what is mandated by the statute."

In August 2004 Superior Court Judge John Reese dismissed the Jacobs' case. [4] Judge Reese observed that " the department's failure to give them notice is a serious oversight," but concluded that " the Jacobs' due process rights have not been violated, since ... they may request placement in the CINA case."

The Jacobs intervened in their grandchildren's CINA cases, but they also appealed Judge Reese's ruling to this court.[5] We held in Jacob I that the Jacobs were entitled to declaratory relief.[6] We vacated the order dismissing the Jacobs' complaint and remanded for entry of a declaration of the Jacobs' statutory rights,[7] holding that " [a]

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declaratory judgment from the superior court that acknowledges the failure of OCS to meet its statutory duty to the Jacobs and that specifically recognizes the Jacobs' rights to receive notice of future OCS hearings relating to their grandchildren will materially benefit the Jacobs." [8] We noted that " the Jacobs never sought a declaration specifically regarding their due process rights" and so we " decline[d] to comment on this issue extensively," but we nevertheless observed that " notice of proceedings and a meaningful right to be heard are essential to due process." [9] We held that three of the Jacobs' other requests for injunctive relief on their own behalf were moot.[10] By intervening in their grandchildren's CINA proceedings, the Jacobs " received the first two categories of injunctive relief that they sought: notice of CINA proceedings and an opportunity to be heard at permanency hearings." [11] Regarding the third category, " placement of the children," the Jacobs decided not to continue to pursue full custody of two of the children and they were in a position to be heard regarding placement of the third.[12] We " decline[d] to address the Jacobs' request for injunctive relief on behalf of similarly situated grandparents" because the Jacobs had not filed a class action lawsuit and because at oral argument they " appeared to retreat from this position to some degree." [13]

After our Jacob I opinion was published, Superior Court Judge Jack W. Smith entered declaratory judgment on behalf of the Jacobs. The declaration read, in its entirety:

Plaintiff[s'] right to notice of Child in Need of Aid (CINA) proceedings concerning their grandchildren was violated by the Office of Children's Services (OCS). In September 2001 amendments to AS 47.10.030(d) required notice to grandparents with Plaintiff[s'] status. That notice was not provided to Plaintiffs.
Plaintiffs have a right and are entitled to notice under AS 47.10.030(b) and (d) of any current and future CINA ...

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