Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. A.B. v. State; Dept. of Health & Social Services (9/8/00) sp-5312

A.B. v. State; Dept. of Health & Social Services (9/8/00) sp-5312

     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
                                 


A.B.,                         )
                              )    Supreme Court No. S-9118
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-97-38 CP
                              )
STATE OF ALASKA, DEPARTMENT   )
OF HEALTH & SOCIAL SERVICES,  )    OPINION ON REHEARING
                              )
             Appellee.        )    [No. 5312 - September 8, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                     Thomas M. Jahnke, Judge.


          Appearances: Kathleen A. Murphy, Assistant
Public Defender, Anchorage, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant.  Shannon O'Fallon, Assistant Attorney
General, Juneau, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          A.B. appeals the superior court's judgment that
terminated her parental rights with respect to her child, S.B.  At
the time of the termination proceedings, the Division of Family and
Youth Services (DFYS) was attempting to unite S.B. and her
biological father, R.H.  In light of these unification efforts, we
remand the case for a determination of whether DFYS was attempting
to free S.B. for the purposes of adoption or other permanent
placement.  In all other respects, we affirm the decision of the
superior court.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          A.B. gave birth to S.B. at Swedish Hospital in Seattle in
July 1997.  A.B., a resident of Ketchikan, had been transferred to
Seattle because she went into labor early and Swedish Hospital was
better equipped to deal with a premature baby.  S.B. was born
prematurely.  S.B. remained in the hospital in Seattle for almost
a month, while A.B., who was eighteen years old at the time, 
returned to Ketchikan nine days after S.B. was born.  Swedish
Hospital transferred S.B. directly to Ketchikan General Hospital
because of her small size and concerns that A.B. could not meet her
infant's needs. 
          After S.B.'s birth, DFYS received reports from hospital
staff members in both Seattle and Ketchikan, who expressed concerns
regarding A.B.'s ability to meet S.B.'s basic needs.  Staff
reported that A.B. appeared unwilling at times to feed S.B. or
change her diapers, that they had seen A.B. shaking S.B., and that
she handled S.B. roughly.  Dr. David Johnson, who was A.B.'s family
physician, stated that he did not feel that it was safe to
discharge S.B. into A.B.'s care.  Dr. Johnson testified that A.B.
"was quite impulsive" and lacked common sense.  He was most
concerned with A.B.'s inconsistency in her handling of S.B., and he
thought that A.B. might unintentionally injure S.B. out of some
impulsive move caused by frustration. 
          After S.B. was discharged from the hospital, DFYS took
emergency custody of her and placed her in foster care.  DFYS then
gained temporary custody of S.B. and set up visitation between A.B.
and S.B. 
          DFYS created the first formal case plan about a month
later.  It was designed to address such concerns as A.B.'s drug and
alcohol use, mental health problems, lack of parenting skills, and
lack of a stable living environment.  Various organizations
attempted to assist A.B. in complying with the plan. 
          By the end of 1997, A.B. had made some progress in the
parenting aspects of her case plan.  However, she did not begin
addressing the mental health and substance abuse aspects of the
plan until the early part of 1998.  Also in early 1998, A.B.
resisted DFYS's efforts to assist her in obtaining a stable living
environment.  For example, DFYS workers tried to persuade A.B. to
fill out applications for low-income housing, but she refused. 
          In February 1998 A.B. asked for her visitation with S.B.
to be stopped for a week because she wanted to spend time with her
boyfriend.  A.B. later admitted that she largely spent her week off
using cocaine and drinking alcohol. 
          Also in February 1998, A.B. began to address the
substance abuse and mental health aspects of her case plan.  She
made contact with Dr. Keith Youngblood, a psychologist at Gateway
Human Services.  Dr. Youngblood stated that A.B. had problems with
substance use, as well as "a documented history of mood disorder
and emotional management problems."  In addition, Dr. Youngblood
testified that A.B. suffered from some sort of intellectual
impairment.  While the evidence suggests that Dr. Youngblood did
not run formal tests for fetal alcohol syndrome, he testified that
A.B.'s record reflects a provisional diagnosis of her suffering
from this condition, which is associated with cognitive defects.
          Later in February A.B. and Dr. Youngblood met again and
outlined a treatment plan.  The plan's objectives included A.B.'s
abstinence from non-prescribed drugs and development of effective
management skills that would keep her mood swings in control. 
These objectives were to be accomplished through a variety of
methods, including weekly counseling sessions.  A.B. attended only
one of the sessions; she later admitted that there was no real
reason why she did not attend more. 
          In March 1998 A.B. was evaluated for substance abuse at
the Ketchikan General Hospital's Recovery Center.  She was
diagnosed as having polysubstance dependency; it was recommended
that she complete an intensive two-phase care plan.  Although A.B.
participated in the plan for about two months, she did not complete
it. 
          During May 1998 A.B. was allowed twelve visits with S.B.
but made only three of those visits.  She visited S.B. about half
of her allotted visits in June. 
          By July 1998 A.B. was unemployed and homeless.  She
failed to attend the six-month review meeting for her case plan 
and stopped visiting with S.B. altogether.  One of A.B.'s case
workers testified that A.B. decided that she was not going to
continue with the case plan.  Another case worker testified that
A.B.'s situation was desperate enough that A.B. was just trying to
survive. 
          In August 1998 A.B. stated that she wanted to relinquish
her parental rights and give S.B. up for adoption.  She had only
one visit with S.B. during that month, and in September she
requested only one visit.  In October, S.B. was placed in a foster
home on Prince of Wales Island and A.B. was allowed one visit with
S.B. per month. 
          On November 30, 1998, having concluded that efforts to
unite A.B. and S.B. had failed and that the situation was only
getting worse, DFYS filed a petition for the termination of A.B.'s
parental rights.  From the time that the petition was filed until
the termination trial was held, A.B. generally continued not to
comply with her case plan.  
          A.B.'s termination trial was held in April 1999.  At the
time of the termination proceedings, DFYS was pursuing efforts to
unite S.B. and her biological father, R.H.  
     B.   Proceedings
          After presiding over a two-day termination trial, 
Superior Court Judge Thomas M. Jahnke granted DFYS's petition and
terminated A.B.'s parental rights.  Judge Jahnke ruled that S.B.
was a child in need of aid under numerous statutory provisions.  He
found by clear and convincing evidence that A.B. abandoned S.B.
under the first sentence of AS 47.10.013(a), as well as under AS
47.10.013(a)(4) and (8), [Fn. 1] and that S.B.'s father had
"committed conduct or created conditions that cause the child to be
a child in need of aid."  Judge Jahnke also ruled that S.B. was,
and continued to be, a child in need of aid by reason of neglect,
pursuant to AS 47.10.011(9). [Fn. 2]  In addition, Judge Jahnke
ruled that S.B. was a child in need of aid under AS 47.10.011(11),
in that A.B. "has a 'mental deficiency of a nature and duration
that places [S.B.] at substantial risk of physical harm or mental
injury.'" 
          Judge Jahnke also found by clear and convincing evidence
that, pursuant to AS 47.10.088(a)(1)(B), A.B. had not remedied the
conduct or conditions that placed S.B. at risk.  In addition, Judge
Jahnke found by a preponderance of the evidence that DFYS had "made
reasonable efforts to support the family and foster the safe return
of the child to the family home."  Finally, Judge Jahnke ruled that
terminating A.B.'s parental rights was in S.B.'s best interests. 
          Following Judge Jahnke's written decision, DFYS submitted
proposed "Findings, Conclusions, and Order" that Judge Jahnke
signed.  A.B. appeals. 
III. DISCUSSION
          Alaska Statute 47.10.088(a) allows a court to terminate
parental rights "for purposes of freeing a child for adoption or
other permanent placement."  In order to terminate parental rights
under this statute, a court must first find, by clear and
convincing evidence, that: (1) the child is a child in need of aid
under AS 47.10.011; and (2) the parent has not remedied the conduct
or conditions that place the child at risk. [Fn. 3]  Then, a court
must find, by a preponderance of the evidence, that DFYS has made
reasonable efforts to support the family and foster the safe return
of the child to the family home. [Fn. 4]  In making determinations
under this statute, a court must also consider the best interests
of the child. [Fn. 5]
     A.   Standard of Review
          In a child in need of aid case, we will sustain the
superior court's findings of fact unless they are clearly
erroneous. [Fn. 6]  Factual findings are clearly erroneous if a
review of the entire record leaves us "with a definite and firm
conviction that a mistake has been made." [Fn. 7]  In addition, we
apply our independent judgment in reviewing questions of statutory
interpretation. [Fn. 8]  Whether the trial court's findings comport
with the requirements of the child in need of aid statutes is a
question of law that we review de novo. [Fn. 9]
     B.   The Superior Court Did Not Err in Ruling that S.B. Is a
Child in Need of Aid.

          As noted above, the superior court ruled that S.B. is a
child in need of aid under numerous statutory provisions. [Fn. 10] 
The record supports the superior court's determination that S.B. is
a child in need of aid pursuant to AS 47.10.011(1) [Fn. 11] because
A.B. abandoned S.B. pursuant to AS 47.10.013(a)(4), [Fn. 12] and
because S.B.'s biological father has "committed conduct or created
conditions" that caused S.B. to be a child in need of aid.  Since
we affirm this determination, we need not address the other grounds
on which the superior court ruled that S.B. is a child in need of
aid. 
          1.   The superior court did not err in ruling that A.B.
failed to participate in a suitable reunification plan without
justifiable cause.

          Alaska Statute 47.10.013(a)(4) states that abandonment of
a child includes instances in which the parent, without justifiable
cause, "failed to participate in a suitable plan or program
designed to reunite the parent . . . with the child."  The record
supports the superior court's determination that A.B. abandoned
S.B. under the terms of this statute.  
               a.   The superior court did not err in ruling that
A.B. failed to participate in a suitable reunification plan.
                    
          We have not yet had occasion to decide what "failed to
participate" means within the context of AS 47.10.013(a)(4).  While
this statutory provision does not necessarily require a parent to
follow his or her reunification plan to the letter, it does require
more than minimal participation.
          A.B. made some progress in following her reunification
plan during 1997.  However, in February 1998 she asked for time off
from visitation so that she could spend more time with her
boyfriend.  During the time off, A.B. consumed cocaine and drank
alcohol.  This interlude began a period of steadily downward
performance by A.B., at the culmination of which she essentially
dropped out of the reunification plan.
          By July 1998 A.B. stopped visiting with S.B. altogether. 
She also failed to attend the six-month review meeting for her case
plan and articulated her decision that she was not going to follow
the plan.  In August 1998 A.B. stated that she wanted to relinquish
her parental rights and give up S.B. for adoption. 
          While A.B. did have token visitation with S.B. during the
latter part of 1998, the record suggests that she failed to
participate in the other aspects of her case plan from July 1998 to
March 1999.  By failing to even minimally participate in her case
plan for over six months, A.B.'s conduct falls within the
definition of "abandonment" stated in AS 47.10.013(a)(4).  We
accordingly hold that the superior court did not err in ruling that
A.B. failed to participate in a suitable reunification plan under
this statute.
               b.   The superior court did not err in ruling that
A.B.'s failure to participate in her reunification plan was without
justifiable cause.

          Alaska Statute 47.10.013(a)(4) provides that a failure to
participate in a suitable reunification plan constitutes
"abandonment" if the failure was without justifiable cause.  On
appeal, A.B. argues that her failure to comply with her case plan
was not fully voluntary because the failure was caused by her
poverty and her homelessness. 
          However, A.B.'s assertions are not borne out by the
record.  For example, one aspect of A.B.'s case plan was to apply
for low-income housing.  A.B. resisted DFYS's repeated attempts to
assist her with this aspect of the plan.  DFYS workers attempted to
assist A.B. in filling out applications for low-income housing, but
A.B. would not fill out the applications.  Another aspect of A.B.'s
case plan was to obtain mental health treatment through weekly
counseling sessions, but she attended only one session.  She offers
no evidence that these failures on her part were related to her
poverty or were in any way justified.  
          Although A.B. was extremely poor in the summer of 1998,
the record suggests that DFYS and other organizations gave A.B.
ample opportunities to maintain a stable lifestyle.  As such, we
cannot say that the superior court erred in ruling that A.B.'s
failure to participate in the reunification plan was without
justifiable cause.  We therefore affirm the superior court's
conclusion that A.B. abandoned S.B. within the meaning of AS
47.10.013(a)(4).
          2.   The superior court did not err in ruling that
S.B.'s father committed conduct or created conditions that caused
S.B. to be a child in need of aid.
          In order for a court to find that a child is a child in
need of aid under AS 47.10.011(1), a court must find not only that
the child has been abandoned under AS 47.10.013, but also that "the
other parent is absent or has committed conduct or created
conditions that cause the child to be a child in need of aid." [Fn.
13]  Here, the superior court determined that S.B.'s biological
father, R.H., had committed such conduct or created such
conditions. 
          On appeal, A.B. does not challenge this determination. 
Accordingly, we need not consider this matter further. [Fn. 14]  We
therefore affirm the superior court's ruling that R.H. committed
conduct or created conditions that cause S.B. to be a child in need
of aid. 
          We accordingly affirm the superior court's ruling that
S.B. is a child in need of aid pursuant to AS 47.10.011. 
     C.   The Superior Court Did Not Err in Ruling that A.B. Has
Failed to Remedy the Conduct or Conditions that Place S.B. at Risk.

          In order to terminate parental rights under AS 47.10.088,
a court must not only find that a child is a child in need of aid;
the court must also find, by clear and convincing evidence, that
the parent
               (i) has not remedied the conduct or
conditions in the home that place the child at substantial risk of
harm; or
               (ii) has failed, within a reasonable
time, to remedy the conduct or conditions in the home that place
the child in substantial risk so that returning the child to the
parent would place the child at substantial risk of physical or
mental injury[.][ [Fn. 15]] 

Here, the superior court found by clear and convincing evidence
that A.B. failed to remedy the situation under either prong of this
statutory provision. 
          On appeal, A.B. did not argue in her brief that she had
remedied the conduct or conditions that place S.B. at risk. [Fn.
16]  Accordingly, we need not consider this issue. [Fn. 17] We
therefore affirm the superior court's ruling that A.B. has failed
to remedy the conduct or conditions that place S.B. at substantial
risk. 
     D.   The Superior Court Did Not Err in Ruling that DFYS Made
Reasonable Efforts to Support the Family and Foster the Safe Return
of S.B. to A.B.'s Home.
          In addition to the requirements for terminating parental
rights that are discussed above, [Fn. 18] AS 47.10.088 requires
DFYS to show "by preponderance of the evidence that the department
has complied with the provisions of AS 47.10.086 concerning
reasonable efforts" to provide family support services designed to
prevent out-of-home placement of the child or to return the child
to the family home. [Fn. 19]
          The superior court found, by a preponderance of the
evidence, that DFYS made "reasonable efforts" as required by AS
47.10.088.  It stated that the failure of those efforts is
primarily the result of A.B.'s refusal to take advantage of the
services that were offered to her.  The record supports the
superior court's ruling.
          While A.B. suggests that DFYS's reunification plan was
fatally flawed because it did not adequately address her housing
needs, the record establishes that one of the concerns that A.B.'s
case plan was designed to address was her lack of a stable living
environment.  Case workers attempted to help A.B. fill out
applications for low-income housing, but A.B. would not fill out
the applications.  The record reflects that A.B. was offered help
in addressing her housing needs, but did not take advantage of that
help.
          DFYS took numerous other steps in its attempt to reunite 
A.B. and S.B.   It created a case plan and offered A.B. specific
services designed to address the concerns referred to in the plan. 
A.B. did not, however, make full use of these services and, in the
summer of 1998, she decided that she would no longer follow the
case plan. 
          Given DFYS's efforts in creating the case plan and
offering A.B. services that would help her achieve the objectives
of that plan, we affirm the superior court's ruling on the
reasonable efforts issue.
     E.   In Light of DFYS's Attempts To Unite S.B. and Her
Biological Father, the Record Does Not Support the Superior Court's
Decision to Terminate A.B.'s Parental Rights.

          Although we affirm the superior court's rulings in all
other respects, [Fn. 20] we must nevertheless remand this case for
further proceedings.  In light of DFYS's attempts to unite S.B. and
her biological father, R.H., it is unclear whether the superior
court terminated A.B.'s parental rights "for the purposes of
freeing [S.B.] for adoption or other permanent placement." [Fn. 21] 
For the same reason, it is unclear whether terminating A.B.'s
parental rights is in the best interests of S.B.  We accordingly
remand the case for further determinations regarding these matters.

          1.   Alaska Statute 47.10.088(a) allows for the
termination of parental rights only for the purposes of freeing a
child for adoption or other permanent placement.  
          
          Alaska Statute 47.10.088(a) provides that a court may
terminate parental rights "for the purposes of freeing a child for
adoption or other permanent placement."  Here, it is unclear
whether the superior court terminated A.B.'s parental rights for 
either of these purposes.  While the superior court noted that S.B.
has an interest in having a stable, permanent family arrangement,
at the time of the termination proceedings DFYS was attempting to
unite S.B. and her biological father, R.H. [Fn. 22]
          At the time the parties submitted their appellate briefs,
DFYS noted that S.B. had been placed in her father's care, but
stated that DFYS still had custody over her.  While the record
indicates that DFYS had supervisory custody until January 1, 2000,
the record does not indicate what happened after that date.
          In light of these facts, it is unclear whether DFYS was
attempting to terminate A.B.'s parental rights for the purpose of
freeing S.B. "for adoption or other permanent placement." [Fn. 23] 
It does not appear that S.B. was going to be placed with adoptive
parents after the termination proceedings. [Fn. 24]  We therefore
remand this case for a finding as to whether termination of A.B.'s
parental rights is for the purpose of freeing S.B. for adoption or
other permanent placement.  If the superior court finds on remand
that A.B.'s parental rights would not be terminated for the purpose
of freeing S.B. "for adoption or other permanent placement," the
court should decline to terminate A.B.'s parental rights.
          2.   The record is unclear whether terminating A.B.'s
parental rights is in the best interests of S.B.
          
          Alaska Statute 47.10.088(c) provides that "[i]n a
proceeding under this chapter involving termination of [parental
rights], the court shall consider the best interests of the child." 
We have stated that "in a termination trial, the best interests of
the child, not those of the parents, are paramount." [Fn. 25]
          Here, the superior court determined that terminating
A.B.'s parental rights is in S.B.'s best interests.  In doing so,
the superior court suggested that terminating A.B.'s parental
rights would help give S.B. "the best opportunity for life in a
stable and nurturing home."  In light of DFYS's efforts to unite
S.B. and R.H., however, we are not persuaded that the superior
court's best interests determination is supported under the unusual
facts of this case. [Fn. 26]  As A.B. argues, termination of her
parental rights has, in effect, left S.B. "half-orphaned."  If R.H.
turns out to be a satisfactory parent for S.B., it is difficult for
us to see how severing all ties with A.B. is in S.B.'s best
interests. [Fn. 27] If A.B.'s parental rights are terminated, S.B.
would lose her rights of inheritance from A.B. and her right to
support from her biological mother.  With her biological father as
her custodian, losing these important rights for her other natural
parent would not appear to be in S.B.'s best interests. 
          In light of DFYS's attempt to unite S.B. and her
biological father, the superior court on remand should first
determine the status of that effort, and then determine whether the
termination of A.B.'s parental rights is for the purpose of
facilitating S.B.'s adoption or other permanent placement.  If the
court determines that terminating A.B.'s parental rights is for
that purpose, the court should then determine whether, in light of
its other findings, such a termination is in S.B.'s best interests. 
IV.  CONCLUSION
          The record supports the superior court's determinations
that S.B. is a child in need of aid, that A.B. failed to remedy the
conduct or conditions that place S.B. at risk, and that DFYS made
reasonable efforts to foster the safe return of S.B. to A.B.'s
home.  However, because DFYS was seeking to unite S.B. and her
biological father at the time of the termination proceedings, we
REMAND this case to the superior court to determine: (1) the status
of DFYS's efforts to unite S.B. and R.H.; (2) the purpose of
terminating A.B.'s parental rights; and (3) if necessary, the best
interests of S.B.



                            FOOTNOTES


Footnote 1:

     Alaska Statute 47.10.013 provides in relevant part:

               (a) For purposes of this chapter, the
court may find abandonment of a child if a parent or guardian has
shown a conscious disregard of parental responsibilities toward the
child by failing to provide reasonable support, maintain regular
contact, or provide normal supervision, considering the child's age
and need for care by an adult.  Abandonment of a child also
includes instances when the parent or guardian, without justifiable
cause, 
          . . . . 
               (4) failed to participate in a suitable
plan or program designed to reunite the parent or guardian with the
child; 
          . . . .
               (8) was unwilling to provide care,
support, or supervision for the child.


Footnote 2:

     Alaska Statute 47.10.011 provides in relevant part:

          Subject to AS 47.10.019, the court may find a
child to be a child in need of aid if it finds by a preponderance
of the evidence that the child has been subjected to any of the
following: 
          . . . .
               (9) conduct by or conditions created by
the parent, guardian, or custodian have subjected the child or
another child in the same household to neglect[.]


Footnote 3:

     See AS 47.10.088(a)(1)(B).


Footnote 4:

     See AS 47.10.088(a)(2); AS 47.10.086.


Footnote 5:

     See AS 47.10.088(c).


Footnote 6:

     See R.J.M. v. State, Dep't of Health and Soc. Servs., 973 P.2d
79, 84 (Alaska 1999) (citation omitted).


Footnote 7:

     Id. (citation omitted).


Footnote 8:

     See id. 


Footnote 9:

     See id. 


Footnote 10:

     See supra Part II.B.


Footnote 11:

     Alaska Statute 47.10.011 provides, in relevant part:

          Subject to AS 47.10.019, the court may find a
child to be a child in need of aid if it finds by a preponderance
of the evidence that the child has been subjected to any of the
following:
               (1) a parent or guardian has abandoned
the child as described in AS 47.10.013, and the other parent is
absent or has committed conduct or created conditions that cause
the child to be a child in need of aid under this chapter[.]

Alaska Statute 47.10.019 provides:

          Notwithstanding other provisions of this
chapter, the court may not find a minor to be a child in need of
aid under this chapter solely on the basis that the child's family
is poor, lacks adequate housing, or exhibits a lifestyle that is
different from the generally accepted lifestyle standard of the
community where the family lives.  However, this section may not be
construed to prevent a court from finding that a child is in need
of aid if the child has been subjected to conduct or conditions
described in AS 47.10.011--47.10.015.


Footnote 12:

     Alaska Statute 47.10.013(a)(4) provides that "abandonment"
includes instances in which a parent, without justifiable cause,
"failed to participate in a suitable plan or program designed to
reunite the parent . . . with the child."


Footnote 13:

     AS 47.10.011(1).


Footnote 14:

     See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1989) (citations omitted).  Although it is unnecessary to
the resolution of this appeal, we note that the superior court's
findings provide more than adequate support for its determination
that R.H. committed conduct or created conditions that cause S.B.
to be a child in need of aid.  For example, the superior court
found that R.H. fled Ketchikan during A.B.'s pregnancy to avoid
contact with her, and that he did so with the intent of letting
A.B. fail as a parent so that he could then step in and demand
custody of S.B.  Because R.H. left S.B. in the custody of someone
he believed to be a highly inadequate parent, the record supports
the superior court's determination that R.H.'s conduct placed S.B.
at a substantial risk of suffering substantial physical harm, and
that R.H. thereby caused S.B. to be a child in need of aid under AS
47.10.011(6).


Footnote 15:

     AS 47.10.088(a)(1)(B).


Footnote 16:

     A.B. does discuss the failure-to-remedy provision in her
brief, but she does so in the context of arguing that termination
of her parental rights was not in S.B.'s best interests.  A.B. does
not argue that she has remedied the conduct or conditions that
place S.B. at substantial risk.


Footnote 17:

     See Adamson, 819 P.2d at 889 n.3 (citations omitted).  


Footnote 18:

     See supra Parts III.B-C.


Footnote 19:

     AS 47.10.088(a)(2).  Alaska Statute 47.10.086 is entitled
"REASONABLE EFFORTS."  It provides, in relevant part:

          (a) [T]he department shall make timely,
reasonable efforts to provide family support services to the child
and to the parents or guardian of the child that are designed to
prevent out-of-home placement of the child or to enable the safe
return of the child to the family home, when appropriate, if the
child is in an out-of-home placement.  The department's duty to
make reasonable efforts under this subsection includes the duty to
               (1) identify family support services that
will assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of aid;
               (2) actively offer the parent or
guardian, and refer the parent or guardian to, the services
identified under (1) of this subsection;  the department shall
refer the parent or guardian to community-based family support
services whenever community-based services are available and
desired by the parent or guardian;  and
               (3) document the department's actions
that are taken under (1) and (2) of this subsection.


Footnote 20:

     See supra Parts III.B-D.


Footnote 21:

     Alaska Statute 47.10.088(a).


Footnote 22:

     Judge Jahnke suggested that in light of these reunification
efforts, DFYS's pursuit of termination proceedings against A.B.
"struck [him] as curious."  He also questioned whether the state
had an interest in terminating A.B.'s parental rights, and
suggested that DFYS should be more concerned with the father.  DFYS
responded by stating that it thought it was best to go forward with
the termination proceedings regarding A.B., and that it would
attempt to terminate R.H.'s parental rights if it had to do so.


Footnote 23:

     AS 47.10.088(a).


Footnote 24:

     Placement with a non-terminated parent could be an "other
permanent placement" under AS 47.10.088(a), and, under AS
47.10.088(h), terminating the non-custodial parent's rights would
not affect the rights of the custodial parent.  But the termination
must be made "for purposes of freeing" a child for such permanent
placement.  If the state argues on remand that this is such a case,
the court should make findings on this point.


Footnote 25:

     A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256,
260 (Alaska 1999) (citing R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska
1996)).


Footnote 26:

     Judge Jahnke's observation that DFYS's pursuit of termination
against A.B. while seeking to unite S.B. with her biological father
was "curious," see supra note 21, suggests the trial court's unease
with this aspect of the case.


Footnote 27:

     The situation would be different if DFYS were attempting to
place S.B. into a permanent adoptive home.  On the basis of the
record, a strong case can be made for concluding that such a
placement would be in S.B.'s best interests.  Here, however, it
appears that S.B. was not going to be placed in a permanent
adoptive home.  Rather, DFYS was seeking to place S.B. with her
father, at least until DFYS determines that the father is also not
an adequate parent.           In the Supreme Court of the State of Alaska



A.B.,                           )
                                )        Supreme Court No. S-09118
                                   Petitioner,  )
                   v.           )                 Order
                                )          Petition for Rehearing
State of Alaska, DHSS,          )                     
                                )                     
                                   Respondent.  ) Date of Order: 9/8/00
                                )
Trial Court Case # 1KE-97-00038CP

     Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and Carpeneti, Justices

     On consideration of the Petition for Rehearing, filed on May 8, 2000,

     It is Ordered:

     3.   The Petition for Rehearing is Granted.

     4.   Opinion No. 5267, issued on April 28, 2000, is Withdrawn.

     5.   Opinion No. 5312, is issued on this date in its place.  Footnote 24 has been added on
page 17.
     
     Entered by direction of the court.

                                   Clerk of the Appellate Courts

                                                                                                         
                                   Marilyn May
cc:  Supreme Court Justices
     Judge Jahnke
     Trial Court Appeals Clerk/Juneau
     Publishers

Distribution:  
 
     Kathleen A Murphy, Assistant Public Defender
     Shannon K O'Fallon, Assistant Attorney General 
     Vernon A Keller, Attorney at Law
     Tamara Rambosek, Attorney at Law