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F.T. v. State of Alaska (11/5/93), 862 P 2d 857
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-4626
) Trial Court No.
v. ) 3AN-90-303/304 CP
STATE OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4021 - November 5, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, John Reese and Peter Michalski,
Appearances: Kenneth C. Kirk, Kirk &
Robinson, Anchorage, for Appellant. J.
Stefan Otterson, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Appellee. Roger E. Holl,
Anchorage, Guardian Ad Litem.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
The superior court adjudicated G.T. a child in need of
aid (CINA). F.T., G.T.'s father, timely appealed the adjudic
ation.1 We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Gordon, born August 12, 1983, is seriously emotionally
disturbed and given to outbursts of rage and verbal and physical
The Department of Health and Social Services, Division
of Family and Youth Services (DFYS) first became involved with
Gordon's family in 1985. No child protection issues were
substantiated, so the case was closed and no court action was
filed. The next DFYS involvement was in February 1989. This
involvement was also resolved without court action. By this
time, Frank was separated from his wife and Gordon was in the
wife's custody. The basis for DFYS involvement was
"substantiated child abuse"on Frank's part. The record contains
no details about this abuse. The transcript of the adjudication
proceedings describes only one event, in which Frank "pushed
Gordon into a chair or a bench, something that made him hit his
DFYS's next involvement was on the basis of a referral
in December 1989, for neglect on the mother's part.
Between 1985 and 1989 Frank's wife obtained five
domestic violence restraining orders against him.2 All began as
ex parte petitions. Three were never pursued. The other two
were extended to 90 and 135 days respectively.
The present case began in May 1990. While Gordon was
in his mother's custody, he had been hospitalized in a unit for
emotionally disturbed children at Charter North Hospital three
times. During the third hospitalization the hospital staff
concluded that it had exhausted its resources and that the
situation at the mother's home was continuing to deteriorate.
DFYS then filed a petition for emergency custody of Gordon.
Following DFYS's intervention, Gordon was released from
the hospital into the care of family friends. Gordon did not do
well in his foster home. Growing conflicts led his foster
parents to conclude that they could no longer take care of him.
Apparently DFYS, the foster parents, and the family's pastor then
agreed that "Frank should be given a chance to take Gordon home."
In preparation for this transfer, Frank was instructed
to undertake "psychological evaluation, a parenting skills class,
and Male Awareness Program, as well as to get a day time job, an
apartment large enough for Gordon to have his own bed and space,
and a telephone." DFYS acknowledges that Frank was "very
cooperative" and made "definite progress"complying with these
directives. Among other things, Frank submitted to a
psychological evaluation, quit his job and found day-time
employment, moved to a larger apartment with room for Gordon, and
enrolled in parenting classes.
Pending the transfer to Frank's care, Gordon was moved
from his first foster home to a second foster home. Within days
Gordon's condition deteriorated to the point that on February 11,
1991, he was hospitalized in Charter North for a fourth time.
DFYS then abandoned its plans to place him in Frank's care.
An adjudication hearing was held February 27, 1991.
Frank contested the adjudication. DFYS argued against returning
Gordon to his father's custody, urging that Gordon was improving
in the hospital and needed a stable environment.
Judge Reese adjudicated Gordon to be a child in need of
aid under AS 47.10.010(a)(2)(A) and (C).3 Judge Reese based his
decision in part on the domestic violence orders, of which he
took judicial notice. Three months later a disposition hearing
was held before Master Brown. The State's earlier, optimistic
forecasts notwithstanding, Gordon was still hospitalized in
Charter North. Frank asked that Gordon be placed in his custody.
DFYS argued for continued hospitalization followed by
institutionalization in a "consistent, very structured type of
environment." Master Brown adopted DFYS' recommendation. Frank
objected to the master's report. Judge Michalski then entered a
disposition order placing custody of Gordon in DFYS. This appeal
Frank challenges the superior court's CINA adjudication
on several grounds. As a threshold matter, we note Frank's claim
that the superior court actually based its adjudication on a best-
interest analysis instead of the statutorily prescribed bases for
assuming jurisdiction. The transcript of the adjudication
hearing lends some support to this argument. Both the State and
the superior court focused on whether a CINA adjudication would
be in Gordon's best interest. The State's witnesses testified to
this effect, and the State, the guardian ad litem, and the
mother's attorney all presented the case in this light in their
Basing a CINA adjudication entirely on a best-interest
analysis is reversible error. Cf. Cooper v. State, 638 P.2d 174,
180 n.9 (Alaska 1981). The statutory ground for a CINA adjudic
ation must first be established. In this case, Judge Reese's
oral decision on the record made express use of the statutory
language in AS 47.10.010(a)(2)(C). In his written Adjudication
of Child in Need of Aid and Interim Order of Disposition, Judge
Reese expressly based his CINA adjudication on AS
47.10.010(a)(2)(A) and (C). On review we must therefore
determine whether the evidence presented at the adjudication
hearing could have supported a CINA adjudication under either of
A. Did the trial court err in concluding that a
preponderance of the evidence supported a CINA
adjudication under AS 47.10.010(a)(2)(A)?
Applied to the specific facts of this case, AS
47.10.010(a)(2)(A) would support a CINA adjudication only if
Gordon had no parent, guardian, custodian, or relative caring or
willing to provide care. Specifically, the parties' dispute
whether Frank was willing to provide care.
The State advances two arguments in support of its
contention that Frank was not willing to provide care. It argues
that Frank did not "manifest a willingness to assume immediate
care of Gordon." It also argues that Frank could not have been
willing to provide care because he was unable to meet Gordon's
The State's first argument is without merit. Frank
unequivocally expressed his desire to care for Gordon. He also
indicated his willingness to leave Gordon in foster care during a
transition period in order to minimize disruption in Gordon's
routine. The State concludes that Frank was not willing to
assume immediate care of Gordon. The statute imposes no such
requirement, and the State's inference is in any case
The State's second argument has no more substance. As
the State points out, we have held that abandonment depends on
objective conduct and not on subjective intent. D.E.D. v. State,
704 P.2d 774, 783 (Alaska 1985); E.J.S. v. Department of Health &
Social Serv., 754 P.2d 749, 751 (Alaska 1988). The State
combines this point with the statutory definition of "caring"5 to
reach the conclusion that if a child has needs a parent cannot
meet, then the parent cannot be "willing to provide care" for
The State is correct to emphasize the importance of
objective conduct. But by any reasonable measure Frank's conduct
objectively bespeaks willingness to care for Gordon. In
addition, the State's conflation of willingness to care and
ability to satisfy needs leads to absurd conclusions. By the
State's logic, the parent of any child with an incurable disease
is not willing to care for that child, since by definition the
parent will not be able to meet the child's medical need for a
In sum, there is no basis in the record for a CINA
adjudication under AS 47.10.010(a)(2)(A). To the extent that the
court's adjudication rests on this subsection, it is clearly
B. Did the trial court err in concluding that a
preponderance of the evidence supported a CINA
adjudication under AS 47.10.010(a)(2)(C)?
Adapted to the facts of this case, AS
47.10.010(a)(2)(C) would support a CINA adjudication only if the
court found either that Gordon has "suffered substantial physical
harm . . . as a result of the actions done by or the conditions
created by" Frank, or that Gordon will suffer "substantial
physical harm"as a result of Frank's actions or inaction.
The superior court made both of these findings. It
found that Frank's "conduct and his attitude and the way he deals
with things is what has caused a great deal of" Gordon's
problems. It also found that "[t]o put Gordon into [Frank's
custody] would likely subject Gordon to a very high risk of
violence as has been the situation in the family in the past.
And imminent and substantial risk for Gordon of physical harm."
Frank argues that the record does not support these
findings.6 We agree. There is no evidence in the record to
support the claim that Frank's conduct caused Gordon's problems.
Indeed, the evidence was to the contrary. Gordon's crises
occurred only after Frank left the household. Each of the
hospitalizations occurred while he was in his mother's custody or
with foster parents.7 The record provides no support for the
court's speculations about the etiology of Gordon's condition.
The superior court's conclusion that Gordon faced
"imminent and substantial risk . . . of physical harm" if
released into Frank's custody calls for more extensive
discussion. As Frank notes, the court might have relied on two
kinds of evidence in concluding that Gordon would be exposed to
"a very high risk of violence as has been the situation in the
family in the past." The first is evidence that Frank physically
abused his children; the second, evidence that he physically
abused his wife.
Hearsay evidence that Frank physically abused his
children was introduced by Gordon's social worker, Margie
Karamolegos, for the sole purpose of providing the basis for her
expert opinion as to Gordon's needs. The court explicitly
allowed it on that basis.8 Its use to establish whether Frank
abused his children would therefore be improper.9
There was no other testimony that Frank had ever
physically abused his son. In fact, although the petition for
adjudication alleges physical abuse, the State declined to pursue
this in any detail. It chose to present no direct evidence of
any kind concerning Frank's alleged physical abuse.
The domestic violence restraining orders are therefore
the only possible bases for the superior court's finding that
Frank's conduct would place Gordon in imminent and substantial
risk of substantial physical harm. The petition for adjudication
cited these orders. Frank was asked about them during the
hearing and gave a rambling response. He denied that the
allegations of violence were accurate and invited the State to
pursue the matter in more detail.
The State declined to do this. The restraining orders
were not entered into evidence and the State presented no direct
testimony to support allegations of violence. However, at the
conclusion of the hearing the superior court announced that it
had reviewed all court records involving Frank. Speaking of the
domestic violence restraining orders, the court stated that "we
have records that I can take judicial notice of that show his
history of violence."
On appeal, Frank challenges the superior court's
decision to take judicial notice, arguing that the factual
allegations judicially noticed were unsuitable for such notice.10
The State responds that since it is attested to in court docu
ments, Frank's "history of violence"is the kind of fact suitable
for judicial notice.11
Article II of the Alaska Rules of Evidence governs
taking judicial notice. A court may take judicial notice "at any
stage of the proceeding,"Alaska R. Evid. 203(b), and may do so
"whether requested or not,"Alaska R. Evid. 201(c). In addition,
the Rules leave considerable discretion to the court to take
judicial notice of judicially noticeable facts. However, they
leave no discretion to the court about which kinds of fact may be
judicially noticed. Alaska R. Evid. 201(b).12 See Alaska
Evidence Rules Commentary, Rule 201(c) and (d): "Under
subdivision (c) the judge has a discretionary authority to
take judicial notice, as long as subdivision (b), supra, is
satisfied . . . . The question of whether or not to take
judicial notice of fact that satisfies the conditions of
subdivision (b) is thus left primarily to the court's
discretion." (Emphasis added.)
The question is therefore whether the proposition that
Frank had a "history of violence"was a judicially noticeable
fact. The rules set out the applicable standard: "A judicially
noticed fact must be one not subject to reasonable dispute."
Alaska R. Evid. 201(b) (emphasis added). The Commentary to the
Alaska Evidence Rules fleshes out this standard as follows:
The court taking judicial notice of a
fact as that term is used in Rule 201 is held
to a . . . demanding standard -- the same
standard required for it to direct a verdict;
it must be right, meaning that rational minds
would not dispute the fact that the court
Evidence Rules Commentary, Rule 201(a); see also 1 Jack B.
Weinstein & Margaret A. Berger, Weinstein's Evidence, 200,
at 200-2 (1990) (judicial notice of fact "is restricted to
discrete facts which are so well known or authoritatively
established as to be essentially indisputable."). Applying that
standard, as laid out in Barber v. National Bank of Alaska, 815
P.2d 857 (Alaska 1991), yields the following: This court will
affirm taking judicial notice only if, viewing the evidence in
the light most favorable to the party against whom judicial
notice is to be taken, fair-minded jurors could not disagree
about the truth of the proposition to be noticed.
The State argues that this standard was met in this
case because the court derived the judicially noticed proposition
that Frank has a "history of violence"from court records. It
argues that court records are particularly suited for judicial
notice and points out that courts routinely notice such records.
We agree that courts freely take notice of court
records, especially their own. However, they typically do so in
order to take judicial notice of such facts as that a prior suit
was filed, who the parties were, and so forth. These are indeed
facts not subject to reasonable dispute.
Courts are far more circumspect about taking judicial
notice of the facts alleged in court records. Liberty Mut. Ins.
Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d
Cir. 1992) (judicial notice of another court's factual findings
may be used only to establish the fact of litigation and related
filings, not the truth of the matters asserted); Marshall v.
Bramer, 828 F.2d 355, 358 (6th Cir. 1987) ("it is generally not
appropriate to judicially notice findings of fact made in other
cases"); United States v. Sixty Acres, More or Less with
Improvements, Located in Etowah County, Alabama, 736 F. Supp.
1579, 1581 (N.D. Ala. 1990) (courts "cannot judicially know for
the purposes of [the present] case evidence received in another
case"). We conclude that the trial court erred in taking
judicial notice of the restraining orders for the purpose of
establishing that Frank had committed acts of violence in the
For the above reasons there is insufficient evidence to
support the trial court's adjudication under AS
Accordingly, we REVERSE the superior court's
adjudication of Gordon as a child in need of aid under AS
47.10.010(a)(2)(A) and (C), and VACATE its order committing
Gordon to DFYS's custody.
1 In order to preserve the anonymity of the parties, and for
the reader's convenience, we will use "Gordon"and "Frank" as
placeholders for G.T.'s and F.T.'s names.
2 These orders are not part of the record on appeal before
3 In pertinent part, AS 47.10.010(a)(2) provides as follows:
Sec. 47.10.010. Jurisdiction. (a)
Proceedings relating to a minor under 18
years of age residing or found in the state
are governed by this chapter, except as
otherwise provided in this chapter, when the
court finds the minor
. . .
(2) to be a child in need of aid as
a result of
(A) the child being habitually
absent from home or refusing to accept
available care, or having no parent,
guardian, custodian, or relative caring or
willing to provide care, including physical
(i) both parents,
(ii) the surviving parent, or
(iii) one parent if the other
parent's rights and responsibilities have
been terminated under AS 25.23.180(c) or AS
47.10.080 or voluntarily relinquished;
(B) the child being in need of
medical treatment to cure, alleviate, or
prevent substantial physical harm, or in need
of treatment for mental harm as evidenced by
failure to thrive, severe anxiety,
depression, withdrawal, or untoward
aggressive behavior or hostility toward
others, and the child's parent, guardian, or
custodian has knowingly failed to provide the
(C) the child having suffered
substantial physical harm or if there is an
imminent and substantial risk that the child
will suffer such harm as a result of the
actions done by or conditions created by the
child's parent, guardian, or custodian or the
failure of the parent, guardian, or custodian
adequately to supervise the child[.]
4 Whether the superior court failed to apply the jurisdic
tional elements of AS 47.10.010(a)(2) "is a question of statutory
interpretation, which this court will decide using its
independent judgment adopting the rule of law that is most
persuasive in light of precedent, reason, and policy." In re
J.L.F., 828 P.2d 166, 168 n.5 (Alaska 1991). However, the
"factual findings supporting the trial court's determination that
a minor is a Child in Need of Aid will not be overturned on
review unless clearly erroneous." A.H. v. State, 779 P.2d 1229,
1231 (Alaska 1989).
5 AS 47.10.990(1) defines "caring"as follows:
"[C]are"or "caring"under AS 47.10.010
(a)(2)(A) . . . means to provide for the
physical, emotional, mental, and social needs
of the child[.]
6 Frank also argues that the State abandoned AS 47.10.010
(a)(2)(C) as a basis for the CINA adjudication. Since we find
insufficient evidence in the record to support an adjudication
under AS 47.10.010(a)(2)(C), we do not reach this contention.
7 By way of illustration, Gordon's last hospitalization
occurred after he was placed in a foster home to which Frank had
no access. During this placement his contact with Gordon was
limited to one weekly meeting; the foster parents did not even
allow Frank to call Gordon, because his calls were at
inconvenient times. Within two weeks Gordon had to be
hospitalized. Gordon's psychiatrist testified that the
hospitalization was the result of the "major environmental
stress"produced by this change in foster placement.
8 The State's claim that Frank never objected to
introduction of hearsay evidence of his alleged physical violence
is incorrect. As soon as Karamolegos began to present hearsay
evidence Frank objected on hearsay grounds. The State responded
that it was offering the testimony only as the basis for
Karamolegos' expert opinion as to Gordon's needs. The court
accepted it on that basis.
Frank also appeals the admission of hearsay testimony at the
subsequent disposition hearing. Since we reverse the CINA
adjudication we do not reach this issue.
9 In addition, even if Karamolegos' hearsay testimony were
allowed to prove Frank's abuse, it is inadequate to support the
court's determination. Karamolegos made clear that Gordon would
lead any parent to use force on occasion. The record fully
confirms this assessment. Gordon's first foster parent acknow
ledges needing to "restrain" Gordon on occasion, including
"[p]hysically sit on him if that was necessary." At first this
occurred as often as three or four times a day. Karamolegos
described teachers at Gordon's school needing to "control"
Gordon, and "upon a number of different occasions" needing to
"restrain him" by having "to actually hold him down." His
psychiatrist describes similar events.
The State's own testimony therefore establishes that some
degree of physical force is sometimes appropriate in order to
cope with Gordon's violent outbursts. The State presented no
evidence that the physical force it alleged Frank used on Gordon
on three or four occasions was not of this kind.
10 Whether the superior court properly took judicial notice
is a question of law. This court may substitute its judgment for
that of the superior court. No deference to the court's decision
is needed, for "[a]n appellate court is often in as good a
position as the trial court to ascertain the degree of
probability of a judicially ascertainable fact." 2 Jack B.
Weinstein & Margaret A. Berger, Weinstein's Evidence 201,
at 201-49 (1992).
11 The State also suggests that any error in taking judicial
notice would be harmless, since there was other evidence of
violence to support the adjudication under AS 47.10.010(a)(2)(C).
We disagree. As we have noted, the State offered no direct
evidence of physical abuse on Frank's part.
12 Alaska Rule of Evidence 201 provides, in pertinent part:
(b) General Rule. A judicially
noticed fact must be one not subject to
reasonable dispute in that it is either (1)
generally known within this state or (2)
capable of accurate and ready determination
by resort to sources whose accuracy cannot
reasonably be questioned.
(c) When Discretionary. A court
may take judicial notice as specified in
subdivision (b), whether requested or not.
(d) When Mandatory. Upon request
of a party, the court shall take judicial
notice of each matter specified in
subdivision (b) if the requesting party
furnishes sufficient information and has
given each party notice adequate to enable
the party to meet the request.
13 The superior court may have meant to invoke the doctrine
of issue preclusion; that doctrine is also not applicable to this
case. Under the general rule of issue preclusion, an issue of
fact which is actually litigated in a former action may, under
certain circumstances, be regarded as conclusive in a subsequent
case. Restatement (Second) of Judgments 27 (1982). Whether
domestic violence orders issued under AS 25.35.010 or AS
25.35.020 can cause issue preclusion in a subsequent child in
need of aid proceeding is a topic of some complexity. It is
sufficient for our purposes in this opinion to state that issue
preclusion in such cases would by no means be inevitable. The
issue as to whether the individual in question had committed acts
of domestic violence must have actually been litigated; a
judgment entered by default does not qualify as actual
litigation. Id. 27 cmt. e. Further, various exceptions to the
rule of issue preclusion may apply in this case. See Id.
28(3), 28(5), 29(2), 29(5). None of these matters were explored
in the trial court and therefore issue preclusion by reason of
the domestic violence orders would have been plainly