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O.R. v. Alaska Dep't. of Health and Social Services (11/27/98), 968 P 2d 93


     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

O.R.,                         )
                              )    Supreme Court No. S-8225
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-94-110 CP
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)
                              )    [No. 5046  - November 27, 1998]
             Appellee.        )
______________________________)
                              )
C.R.,                         )
                              )
             Appellant,       )    Supreme Court No. S-8235
                              )
     v.                       )    Superior Court No.
                              )    4FA-94-110 CP
STATE OF ALASKA, DEPARTMENT   )
OF HEALTH AND SOCIAL SERVICES,)
                              )
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances: Bethany P. Spalding, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant O.R.  Robert S. Noreen, Law Office of
Robert S. Noreen, Fairbanks, for Appellant C.R.  D. Rebecca Snow,
Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.  Thomas E. Fenton,
Fairbanks, Guardian Ad Litem.  

          Before:  Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          FABE, Justice.
          EASTAUGH, Justice, concurring.
          MATTHEWS, Chief Justice, with whom COMPTON,
Justice, joins, dissenting.

I.   INTRODUCTION
          This appeal arises out of the superior court's finding
that A.R. was a child in need of aid under AS 47.10.010(a)(6)
because she suffered substantial physical neglect.  A.R.'s parents,
C.R. and O.R., contend that subsection (6) requires the State to
show both that they physically neglected A.R. and that A.R. was
physically harmed by their neglect.  Because we previously held in 
D.H. v. State, Department of Health & Social Services [Fn. 1] that
subsection (6) does not require a finding of actual harm, we
affirm.
II.  FACTS AND PROCEEDINGS
          C.R. (formerly C.K.) is A.R.'s mother and O.R. is A.R.'s
father.  They were previously before this court in O.R. v. State,
Department of Health & Social Services, [Fn. 2] in which they
appealed the termination of their parental rights over A.R. [Fn. 3] 
We discussed the relevant facts and proceedings in that appeal as
follows:
               A.R. was born nine weeks prematurely on
June 11, 1994.  She tested positive for cocaine and suffered from
respiratory difficulties, including strep pneumonia.  Because of
her health problems, she remained in the hospital's neo-natal
intensive care unit until July 5, 1994, and required
hospitalization three more times in the next four months.  A year
after her birth, A.R. underwent surgery to correct her breathing
difficulties.  The surgery minimized most of her respiratory
problems, but she remains vulnerable to serious illness and
attention disorders.

               A.R. is C.K.'s eighth child.  The two
children born to C.K. prior to A.R. also tested positive for
cocaine at birth.  DHSS removed all of C.K.'s other children in
1991 and 1992 and placed them under the guardianship of relatives
in other states.  O.R. has two other children who live with their
mother in another state.  O.R. and C.K. are not married.

               DHSS initially took emergency custody of
A.R. on June 13, 1994, two days after her birth, because she tested
positive for cocaine.  On June 15, 1994, in response to a petition
by DHSS, C.K. and O.R. stipulated to ninety days temporary custody
with the state.  The court extended custody at a review hearing on
September 13, 1994, until a trial on November 28, 1994, on DHSS's
petition for adjudication of A.R. as a child in need of aid
(Adjudication Trial).

               There was little visitation between A.R.
and her parents in the more than five months between A.R.'s birth
and the adjudication trial.  Although C.K. and O.R. appear to have
visited the child regularly during the three weeks that she
remained in the hospital after her birth, their visits almost
entirely ceased after she was discharged.  Between July 5 and
November 28, C.K. visited only twice, once in July and once in
September, and O.R. visited only once, accompanying C.K. on the
July visit.

               In its findings and order following the
November 28, 1994 trial, the superior court stated that it found
this "lack of visitation by either parent . . . troubling because
it means that neither of them could possibly have established a
relationship with A.R. with so little contact."   The court further
noted A.R.'s "special medical needs which require careful attention
and care from her primary care takers"and stated that "[n]either
[C.] K. or [sic] [O.] R. is capable of providing that level of
attention and care at this time."

               Based on these findings, the court
determined that A.R. was a child in need of aid "in that she has no
one able or willing to care for her at this time and she has
effectively been abandoned, whether or not her parents' abandonment
of her was conscious or intended."   The court awarded custody of
A.R. to DHSS for one year.  In its order, the court stated that
"[i]t is essential that each parent get treatment for his or her
own needs as soon as possible and begin to establish contact with
the child so that they can learn what her needs are and how to
provide for them."   Furthermore, a stipulation signed by O.R. and
given to C.K.'s attorney stated that DHSS would "consider filing a
petition to terminate parental rights"if C.K. and O.R. had not
made "progress toward being able to demonstrate [they are] capable
of caring for"A.R.

               Despite this warning, however, C.K. did
not visit A.R. in the next five months.  She also failed to follow
through on a recommendation to obtain treatment for her substance
abuse problem.  On April 29, 1995, C.K. was arrested for violation
of probation and selling cocaine.  At the time of the termination
trial she was incarcerated and awaiting sentencing.

               Shortly after the adjudication trial,
O.R. was arrested and incarcerated until February 5, 1995.  While
in jail, he had one visit with A.R. in January 1995.  After his
release from jail, however, he did not visit A.R. until he was
again incarcerated in May 1995 on charges of sexual abuse of a
minor, distributing alcohol to a minor, and misconduct involving
weapons.

               There were occasional obstacles to
visitation during the time between A.R.'s initial discharge from
the hospital and the time at which both parents were incarcerated. 
Between December 6 and December 20, C.K.'s social worker was on
leave, and between December 16 and January 1, A.R. left the state
with her foster parent.  DHSS also canceled several visits in
January for reasons beyond C.K. and O.R.'s control.  This left,
however, approximately seventy-seven scheduled visits that C.K.
missed when she was not in jail and about seventy scheduled visits
O.R. missed when he was not in jail.

               In the five months after they were both
incarcerated, C.K. and O.R. each had three visits with A.R.
Bureaucratic delays, A.R.'s surgery in June, and a trip to Florida
with her foster parents apparently made it impossible for A.R. to
visit the jail more frequently.

               On June 1, 1995, DHSS filed a Petition
for Termination of Parental Rights, alleging abandonment.  After a
five-day trial beginning October 30, 1995, Judge Mary E. Greene
terminated the parental rights of C.K. and O.R. and placed A.R. in
the custody of DHSS for the purpose of finding her a permanent
home.[ [Fn. 4]] 

We affirmed the superior court's ruling that C.R. and O.R. had
physically abandoned A.R. under former AS 47.10.010(a)(2)(A), and
remanded for additional findings as to whether relatives of A.R.
were willing and available to care for her. [Fn. 5] 
          Following the remand, Superior Court Judge Mary E. Greene
allowed the State to withdraw the ground of abandonment and assert
the ground of physical neglect under AS 47.10.010(a)(6) [Fn. 6] as
the basis for adjudicating A.R. a child in need of aid.  An
evidentiary hearing was held on June 17, 1997.  The next day, the
superior court announced from the bench its decision to terminate
O.R.'s and C.R.'s parental rights based on its finding of
substantial neglect. On July 11, 1997, the court entered an order
terminating parental rights under subsection (6).
          O.R. appealed the superior court's order.  The State then
moved for a remand of the appeal in light of our recent decisions
in R.J.M. v. State [Fn. 7] and A.M. v. State. [Fn. 8]  We remanded
the matter to the trial court for the purpose of (1) reviewing the
July 11, 1997 order in light of our recent decisions, or (2)
indicating that no such review and reconsideration was necessary.
          On remand, the superior court found that review and
reconsideration were not necessary.  But "in an abundance of
caution,"the superior court clarified its July 11, 1997 order,
emphasizing that because A.R.'s parents had "not provided for her
physical needs,"A.R. had suffered substantial physical neglect
under subsection (6).  C.R. and O.R. appeal the superior court's
finding, arguing that A.R. never suffered harm as a result of
conditions created by them.  Their appeals have been consolidated.
III. DISCUSSION
     
     A.   Standard of Review

          We review the superior court's factual findings on the
issue of termination under the clearly erroneous standard. [Fn. 9] 
Factual findings are clearly erroneous if "review of the entire
record leaves this court with a definite and firm conviction that
a mistake had been made."[Fn. 10]  Whether the superior court's
findings comport with AS 47.10.010(a)(6) is a question of law that
we review de novo. [Fn. 11]  We are aware that termination of
parental rights is "a drastic measure.  The private interest of a
parent whose parental rights may be terminated is of the highest
order."[Fn. 12]
     B.   The Superior Court Did Not Err by Ruling that A.R.
Suffered Substantial Physical Neglect under AS 47.10.010(a)(6).

          Under AS 47.10.010(a)(6), a court may find a minor to be
a child in need of aid because the child has "suffered substantial
physical abuse or neglect as a result of conditions created by the
child's parent, guardian, or custodian."  C.R. and O.R. contend
that subsection (6) requires a showing that "the child was
physically harmed in determining whether the child has suffered
physical neglect."  They also maintain that because A.R. has been
in state care for most of her life, even if she was physically
harmed, it was the department, not her parents, that breached its
duty to care for her.  We disagree with both contentions.
          D.H. v. State, Department of Health & Social Services
[Fn. 13] controls our analysis.  The facts of the case at hand
closely resemble those in D.H.  When T.H. was born to D.H., T.H.
tested positive for cocaine.  The State took emergency custody of
T.H. shortly after birth because of her positive toxicology and
concerns for her safety. [Fn. 14]  With her parents' approval, T.H.
was placed with her grandparents.  Although D.H. was allowed to
visit T.H. daily, her visits were sporadic and the superior court
stated that D.H. made "no real bonding efforts"and that "no
significant nurturing"occurred. [Fn. 15]  Despite its finding that
T.H. was well cared for by her grandparents, [Fn. 16] the superior
court determined that T.H. was a child in need of aid under AS
47.10.010(a)(6). [Fn. 17]  D.H. appealed, arguing that the State's
evidence of abuse or neglect was insufficient under subsection (6).
[Fn. 18]  In urging affirmance, the State contended that D.H. had
failed to make any sustained effort "to establish a parent-child
relationship with [T.H.] by remaining available to provide for her
daily care."[Fn. 19]  We held that D.H.'s conduct supported the
superior court's finding of substantial neglect:
          The superior court determined that by failing
to take responsibility for T.H. or to make any appreciable effort
to do so, D.H. substantially neglected her daughter.  We conclude
that the court had an ample evidentiary basis for adjudicating T.H.
a child in need of aid pursuant to [AS 47.10.010(a)(6)].  Thus, the
superior court's finding is not clearly erroneous.[ [Fn. 20]]

          Significantly, we did not require the State to show that
T.H. was harmed by D.H.'s neglect.  Instead, we upheld the finding
of physical neglect under subsection (6) based upon D.H.'s conduct
and despite D.H.'s claim that T.H. was "a physically healthy
child."[Fn. 21]  Our inquiry focused on D.H.'s neglectful conduct,
not on whether her conduct actually harmed T.H.
          In the case at hand, the superior court similarly
concluded that A.R. suffered substantial physical neglect because
her parents "have not provided for her physical needs for any
period during her life."  The superior court emphasized that A.R.
          went from the hospital into foster care
because of the actions of her parents in failing to provide for her
physical needs.  They did not learn how to care for her respiratory
problems while she was in the hospital.  They did not visit her to
provide the physical touching needed by a newborn.  They did not
learn how to care for her respiratory problems after her release
from the hospital; they could not meet her physical medical care
needs.

Moreover, the superior court determined that "[w]hile [A.R.]
remained in foster care, her parents continued to ignore all her
needs, including her physical needs.  They did not attempt to make
efforts to gain physical custody so that they could provide for her
physical needs.  They did not even maintain visits."  Thus, the
court concluded that O.R. and C.R. "substantially neglected the
physical needs of [A.R.]"and that she "has thus suffered
substantial physical . . . neglect as a result of conditions
created by the child's parents. . . .  They did not feed her, house
her, take her to the doctor or the hospital, bathe her, or provide
for her physical care.  They completely neglected her physical
needs."
          Like D.H., C.R. and O.R. have failed "to take
responsibility for [A.R.] or to make any appreciable effort to do
so."[Fn. 22]  According to the superior court, they were not
"responsive to [A.R.'s] needs,"failed to establish any parent-
child bond and were not "there for [her] in any sense of the word"
during her first few months of life.  In light of these
circumstances, we conclude that the superior court's finding of
substantial physical neglect under subsection (6) is entirely
consistent with our holding in D.H. and not clearly erroneous.
          The dissent believes that the conduct of O.R. and C.R.

cannot support a child-in-need-of-aid finding under subsection (6)
because "[t]he State did not present any evidence that A.R.
suffered or was at risk for substantial physical harm as a result
of her parents' actions or omissions. . . ."  Dissent at 21.  In
support of this position, it points to the holding of R.J.M. v.
State [Fn. 23] that subsection (6) concerns only substantial
physical neglect, not emotional neglect.  But R.J.M. did not
overrule the holding of D.H., and in the case before us, the
superior court specifically found that A.R. "suffered substantial
physical neglect by her parents,"as required by R.J.M.
          Moreover, our examination and discussion of the common
definitions of the terms "abuse"and "neglect"in R.J.M. support
our conclusion that a child need not have experienced physical harm
to have suffered physical neglect.  As we noted in R.J.M., "'abuse'
and 'neglect' are corollary terms.  Both imply the potential for
infliction of harm; the former word generally denotes potentially
harmful action, while the latter generally denotes potentially
harmful inaction."[Fn. 24]  Thus, the emphasis of the inquiry is
on the possibility of harm to the child due to neglectful parental
conduct, not on the harm itself.  Under subsection (6), the State
is not required to wait to intervene until a child has been harmed;
rather, the provision's use of the term "neglect"indicates that
parental conduct causing the potential for harm suffices to trigger
state action.  Certainly A.R. suffered the potential for infliction
of physical harm due to the neglectful conduct of her parents and
their utter failure to meet or make provision for her physical
needs. [Fn. 25]
          C.R. and O.R. also argue that because A.R. has been in
state care for most of her life, any harm she suffered resulted
from the State's breach of its duty to A.R., not from their
negligence.  Given our conclusion that under subsection (6) A.R.
may be adjudicated a child in need of aid based on her parents'
neglectful conduct without regard to whether she was actually
harmed, this argument fails.
IV.  CONCLUSION
          The superior court's finding that A.R. is a child in need
of aid pursuant to AS 47.10.010(6) and its order terminating the
parental rights of C.R. and O.R. are AFFIRMED.
          EASTAUGH, Justice, concurring.  
          I write separately to join in the court's conclusion that
A.R. was a child in need of aid under AS 47.10.010(a)(6).  Today's
case again illustrates the difficulty, if not impossibility, of
drawing a bright line between physical and emotional neglect.  That
is not a line I think the legislature intended to draw when it
enacted subsection (6). [Fn. 1]  But just as stare decisis requires
us to adhere to R.J.M. v. State, where the court held that
subsection (6) does not apply to emotional neglect, it also
requires us to adhere to D.H. v. State, Department of Health &
Social Services. [Fn. 2]  Today's opinion follows the precedent of
D.H. and respects the distinctions drawn in R.J.M.  I therefore
join in it.

MATTHEWS, Chief Justice, with whom COMPTON, Justice, joins,
dissenting.
          Today's opinion holds that A.R. is a CINA [Fn. 1] under
AS 47.10.010(a)(6) because her parents, O.R. and C.R., abandoned
her into State custody.  Slip Op. at 2, 7-12.  I dissent because in
my view the State failed to prove that A.R. suffered substantial
physical neglect, required under subsection (6).  Further, I think
that the court improperly relies on evidence of emotional neglect,
in contravention of our recent decision in R.J.M. v. State, 946
P.2d 855 (Alaska 1997).  And I question whether after today's
opinion, a meaningful difference will exist between AS
47.10.010(a)(6) and the abandonment provision in AS
47.10.010(a)(1).  I address each point in turn.
          The court interprets D.H. v. State, Department of Health
& Social Services, 929 P.2d 650 (Alaska 1996), to focus on whether
the parents have neglected the child, rather than whether the child
has suffered neglect.  Slip Op. at 7-10.  In my view, the text of
the statute does not support this interpretation.  Under subsection
(6), a child may be adjudicated a CINA if "the child ha[s] suffered
substantial physical abuse or neglect as a result of conditions
created by the child's parent."  AS 47.10.010(a)(6).  In R.J.M. we
held that the phrase "substantial physical"modifies both "abuse"
and "neglect."  946 P.2d at 862-68.  Thus, to adjudicate A.R. a
CINA under subsection (6), the superior court must find that she
has suffered "substantial physical . . . neglect."  To "suffer"
means to "undergo"or "endure."  Webster's Third New International
Dictionary (1969).  Thus, I believe that the child must have
"undergone or endured substantial physical . . . neglect"to be
adjudicated a CINA.  
          In R.J.M. we held that the focus of subsection (6) is on
the harm to the child.  946 P.2d at 864.  We emphasized that sub-

section (6) is "aimed at a distinct and relatively narrow problem: 
physical harms resulting from abuse or neglect."  Id.  This, of
course, is consistent with the text of the statute which provides
that neglect or abuse must have been suffered as a result of the
parents' conduct.  We expressed our agreement with the parents'
interpretation of subsection (6) that it "reaches only physical
harm."  Id. at 862.
          We also stated that the statutory terms "abuse"and
"neglect""imply the potential for infliction of harm; the former
word generally denotes potentially harmful action, while the latter
generally denotes potentially harmful inaction."  Id.  Although we
did not focus on the possible conflict between our statement that
subsection (6) is aimed at "physical harms resulting from abuse or
neglect,"id. at 864, and our statement that abuse or neglect imply
the potential for infliction of harm, the two statements are
reconcilable.  What is required is that a parent must have failed
to ensure that a child is provided with such necessities as food,
shelter, clothing, or medical attention.  The child need not
actually be physically harmed by this neglect, but the potential
for substantial physical harm must be present.  Substituting
R.J.M.'s definition of "abuse or neglect"for those terms,
subsection (6) would provide that the child must have "suffered
substantial physical [potentially harmful action or inaction] as a
result of conditions created by the child's parent."  In other
words, the child must at least have been placed at risk of
substantial physical harm as a result of the parent's conduct.  
          I do not read D.H. v. State to compel a different result. 
In D.H. the State took custody of the child twelve days after her
birth.  929 P.2d at 652.  The superior court adjudicated her a CINA
under subsection (6), citing D.H.'s failure to nurture, bond, and
maintain visitation with her.  Id. at 653.  We agreed that because
D.H. failed "to take responsibility for T.H. or to make any
appreciable effort to do so, D.H. substantially neglected her
daughter."  Id. at 654.  In footnote 10 of D.H., we rejected D.H.'s
argument that because T.H. "was born, and continues to be, a
physically healthy child,"she could not be adjudicated CINA.  Id.
at 653 n.10.  We said that "the superior court is not meant to
confine its inquiry to the physical well-being of the child."  Id. 
          Today's opinion reads footnote 10 of D.H. to support its
conclusion that only the parents' actions need be considered under
AS 47.10.010(a)(6).  Slip Op. at 9.  But our more recent decision
in R.J.M. undermines this interpretation.  In R.J.M. we observed
that the D.H. footnote "plainly referred to the CINA statute as a
whole, not just to subsection [(6)]"and "stands at most for the
proposition that the physical well-being of a child at any given
time cannot be determinative of whether the child has suffered
substantial abuse or neglect."  946 P.2d at 866 n.12 (emphasis
added).  But today's opinion reads footnote 10 of D.H. to be an
interpretation of subsection (6) standing for the proposition that
the focus of that subsection is on the parent's neglectful conduct
rather than the results of that conduct.  Slip Op. at 9.  This
reading is inconsistent with the explanation of D.H. which we gave
in R.J.M. and cannot be squared with our statement in that case
that subsection (6) is aimed at "physical harms resulting from
abuse or neglect."  Id. at 864.
          In light of R.J.M.'s explicit holding that subsection (6)
concerns only substantial physical neglect, reliance on emotional
neglect is no longer appropriate.  The court today, however, relies
on O.R.'s and C.R.'s failure to develop a meaningful parent-child
bond with A.R.  Slip Op. at 10.  It notes that, as in D.H., O.R.
and C.R. failed to "'establish a parent-child relationship,'"to
make "'real bonding efforts,'"or to provide "'significant
nurturing.'"  Slip Op. at 8 (quoting D.H., 929 P.2d at 652 n.4,
653).  This reliance on emotional neglect runs counter to our
decision in R.J.M.
          In my view, it is necessary to read AS 47.10.010(a)(6) as
requiring that the child suffer physical neglect to distinguish
subsection (6) from subsection (1) of the same statute. [Fn. 2] 
Subsection (1) allows a court to adjudicate a child CINA if the
child has "no parent, guardian, custodian, or relative caring or
willing to provide care[.]"  We have held that this subsection
speaks to the parent's abandonment of the child.  See O.R. v.
State, Dep't of Health & Soc. Servs., 932 P.2d 1303, 1307-08
(Alaska 1997); S.A., 912 P.2d at 1241.   
          Abandonment is measured by a two-part test.  First, the
court must look to the "objective conduct of the parents in
discharging their parental responsibility."  O.R., 932 P.2d at
1307-08 (quoting A.M. v. State, 891 P.2d 815, 820 (Alaska 1995)). 
Second, the court must find that there has been "a destruction of
the parent-child relationship."  Id. at 1309 (quoting A.M., 891
P.2d at 821).  In considering whether a parent has abandoned a
child, the court may properly consider whether regular visitation
has occurred, whether the parent has made efforts to communicate
with the child, and the strength of the parent-child bond during
the early years of the child's life. [Fn. 3]  Further, the court
may properly consider evidence of mental and emotional harms.  See
R.J.M., 946 P.2d at 866.  But under subsection (1), even if the
parents have abandoned the child, the State must still prove that
there is no other relative willing to assume care of the child. 
See O.R., 932 P.2d at 1309-11.
          Although in R.J.M. we cautioned against reaching an
"overarching interpretation"that might render another subsection
superfluous, [Fn. 4] today's opinion blurs any meaningful
distinction between subsections (1) and (6).  For example, if a
child's parents recognize that they lack maturity or appropriate
parenting skills, they may entrust their child's care to a
relative.  Even assuming that the relative provides the child with
a physically healthy environment, it may be right to conclude that
the parents have abandoned their child.  But does this then justify
terminating their parental rights?  Under subsection (1), the
answer is clearly no, because there is a relative who is caring for
the child.  But under today's opinion, the parents' decision to
entrust their child's care to a more mature care giver may result
in the permanent loss of their parental rights.  This is so because
the parents may have engaged in "neglectful conduct"under
subsection (6). 
          Parental abandonment of a child to the care of another
followed by a failure to visit or bond with the child is a typical
fact pattern covered by subsection (1).  But in such cases there is
a requirement that there be no relative willing to care for the
child before a CINA finding may be made.  Today's opinion holds
that such conduct is also covered by subsection (6).  This subsec-

tion does not contain a requirement that there be no willing
relative.  It therefore signals the end of the willing relative
requirement in classic abandonment situations.  Such a result
eliminates the policy choice made by the legislature to first place
an abandoned child with a willing relative, before he or she is
made a ward of the State.  This result is also contrary to the
principle of statutory interpretation that counsels against reading
a statute in a manner in which provisions are rendered moot or
superfluous.  See In the Matter of S.A., 912 P.2d at 1241; R.J.M.,
946 P.2d at 865.
          The facts show that the State took custody of A.R. two
days after her birth while she was still in the neonatal intensive
care unit.  O.R., 932 P.2d at 1306.  Because the State assumed
complete custody and control over A.R., it is obvious that O.R. and
C.R. have not "provide[d] for her physical care"since her birth. 
Slip Op. at 10.  And as today's opinion notes, it is also true that
O.R. and C.R. have failed to maintain regular visitation or contact
with A.R.  O.R. and C.R. have essentially been absentee parents. 
This neglect may support a CINA finding under subsection (1), but
not under subsection (6).  The State did not present any evidence
that A.R. suffered or was at risk for substantial physical harm as
a result of her parents' actions or omissions, either during the
two days following her birth or during the time that A.R. has spent
in State custody. 
          I would therefore reverse the superior court's finding
that A.R. was a child in need of aid under AS 47.10.010(a)(6).


                            FOOTNOTES


Footnote 1:

     929 P.2d 650 (Alaska 1996).


Footnote 2:

     932 P.2d 1303 (Alaska 1997).


Footnote 3:

     See id. at 1305.


Footnote 4:

     Id. at 1306-07.


Footnote 5:

     See id. at 1312.  


Footnote 6:

      [Fn. 1]Pursuant to a 1996 amendment, former subsections
(a)(2)(A)-(F) are now designated as AS 47.10.010(a)(1)-(6). Ch. 59,
sec. 17, SLA 1996.  For simplicity's sake, we will refer to the
current statutory numbering.


Footnote 7:

     946 P.2d 855 (Alaska 1997).


Footnote 8:

     945 P.2d 296 (Alaska 1997).


Footnote 9:

     See R.J.M. v. State, 946 P.2d 855, 860-61 (Alaska 1997)
(citation omitted).


Footnote 10:

     Id. at 861 n.6 (citation omitted).


Footnote 11:

     See id. at 861 (citation omitted).


Footnote 12:

     In re J.L.F. & K.W.F., 828 P.2d 166, 170 (Alaska 1992)
(citation omitted), overruled on other grounds by In re S.A., 912
P.2d 1235, 1239 (Alaska 1996).


Footnote 13:

     929 P.2d 650 (Alaska 1996).


Footnote 14:

     See id. at 652.  


Footnote 15:

     Id. at 652 n.4.


Footnote 16:

     See id.


Footnote 17:

     See id. at 653.


Footnote 18:

     See id.


Footnote 19:

     Id.


Footnote 20:

     Id. at 654. 


Footnote 21:

     Id. at 653 n.10.


Footnote 22:

     D.H., 929 P.2d at 654.


Footnote 23:

     946 P.2d 855 (Alaska 1997).


Footnote 24:

     946 P.2d at 862 (emphasis added).


Footnote 25:

     The dissent also expresses concern that parents who have
entrusted their child to the care of relatives in a "physically
healthy environment"might be charged with neglectful conduct under
subsection (6).  But the definition of physical neglect discussed
in R.J.M. clearly would not encompass this situation; such parental
conduct could not be described as "potentially harmful inaction."


Concurring / Dissenting Opinion

Footnote 1:

     Pursuant to a 1996 amendment that deleted AS 47.10.010(a)(1),
subsections (a)(2)(A-F) are now designated as AS 47.10.010(a)(1-6).
Ch. 59, sec. 17, SLA 1996.  For simplicity's sake, we will refer to
the current statutory numbering, which governed here.





                     FOOTNOTES (Concurrence)


Footnote 1:

     See R.J.M. v. State, 946 P.2d 855, 871 (Alaska 1997) (Eastaugh, J.,
dissenting).  The court there rejected my view that former AS 47.10.010(a)(2)(F),
now AS 47.10.010(a)(6), applied if parents engaged in substantial emotional
neglect with respect to their child.


Footnote 2:

     929 P.2d 650 (Alaska 1996).





                       FOOTNOTES (Dissent)


Footnote 1:

     CINA means a "child in need of aid."  As we recently observed in E.M. v.
State, Department of Health and Social Services, 959 P.2d 766, 768 (Alaska 1998):

               The statutes and rules governing termination of
parental rights require a number of determinations.  Under AS 47.10.080(c)(3),
termination is authorized

               upon a showing in the adjudication by clear
and convincing evidence that there is a child in need of aid [CINA] under AS
47.10.010(a) as a result of parental conduct and upon a showing in the
disposition by clear and convincing evidence that the parental conduct is likely
to continue to exist if there is no termination of parental rights.  

               Pursuant to this statute, the court first
determines if there is clear and convincing evidence for a CINA adjudication
based on one of the six grounds stated in AS 47.10.010[(a)(1)-(6)].  See Nada A.
v. State, 660 P.2d 436, 439-40 (Alaska 1983).  Then the court determines, still
using the clear and convincing evidence standard, whether the child is in need
of aid because of parental conduct and whether the parental conduct is likely to
continue if parental rights are not terminated.  See id. at 440.


Footnote 2:

     See In the Matter of S.A., 912 P.2d 1235, 1241 (Alaska 1996) ("as a general
rule, [a] statute should be construed so that effect is given to all its
provisions and no part is inoperative or superfluous, void or insignificant")
(quoting Journey v. State, 895 P.2d 955, 959 n.10 (Alaska 1995)).


Footnote 3:

     See, e.g., O.R., 932 P.2d at 1308-09; E.J.S. v. State, Dep't of Health &
Soc. Servs., 754 P.2d 749, 750-51 (Alaska 1988); D.E.D. v. State, 704 P.2d 774,
783 (Alaska 1985); Nada A. v. State, 660 P.2d 436, 439 (Alaska 1983). 


Footnote 4:

     R.J.M., 946 P.2d at 865.