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. M.J.S. v. State, Dept. of Health and Social Services (01/25/2002) sp-5527

M.J.S. v. State, Dept. of Health and Social Services (01/25/2002) sp-5527

     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, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA

M.J.S.,                       )
                              )    Supreme Court No. S-10212
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-94-205 B/CP
                              )
STATE OF ALASKA,              )
DEPARTMENT OF HEALTH AND      )    O P I N I O N
SOCIAL SERVICES, DIVISION OF  )
FAMILY AND YOUTH SERVICES,    )    [No. 5527 - January 25, 2002]
                              )
               Appellee.      )         
                                                                )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Elaine M. Andrews,
Judge.

          Appearances:  Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellant.  Lance B. Nelson, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, and James H. Parker, Assistant Public Advocate,
and Brant McGee, Public Advocate, Anchorage, for Appellee.

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

          BRYNER, Justice.

I.   INTRODUCTION
          The superior court terminated Marissa Spencer's [Fn. 1]
parental rights to her daughter, Janet, concluding that Spencer
suffered from a chronic substance abuse problem, that she had
failed to remedy this conduct, and that her continued substance
abuse exposed Janet to a substantial risk of harm.  Spencer
appeals, arguing that her substance abuse did not expose Janet to
harm because Spencer placed her daughter in the custody of a
responsible adult during periods when Spencer relapsed into
substance abuse.  Because the superior court did not clearly err in
finding that Janet was a child in need of aid ("CINA") and was at
substantial risk of harm, we affirm.
II.  FACTS AND PROCEEDINGS
          Spencer, a mother of four children, has a criminal
history and an extensive history with the Department of Health and
Social Services, Division of Family and Youth Services ("state") as
a result of her substance abuse.  Her parental rights to all four
of her children either have been voluntarily relinquished or
terminated by court order.  Spencer here contests the termination
of parental rights to Janet, her third child.
          Janet was born in May 1994; the department immediately
placed her in its custody because Spencer was incarcerated. 
Spencer and Janet were reunited after Spencer completed drug
treatment, but the state took custody of Janet again after nearly
four years when Spencer gave birth to a fourth child, who tested
positive for cocaine.  The state filed a petition to adjudicate
Janet as a child in need of aid, and Spencer stipulated to the
adjudication. 
          In December 1999 Spencer started a treatment plan
designed by the department to reunite her with her two youngest
children.  Spencer quit her treatment program in June 2000 and
thereafter declined to participate in other substance abuse
treatment.  After Spencer left treatment, the state petitioned to
terminate her parental rights to Janet.
          Before the department most recently took Janet into
custody, she had been living with Martin Schultz, a man who had
befriended Spencer.  Spencer had named Schultz to be Janet's
godfather and left Janet in his custody during periods of relapse
when Spencer was unable to care for her.  When Janet was staying
with Schultz, Spencer and other relatives would regularly visit
her.  Spencer signed two consent forms authorizing Schultz to be
Janet's guardian   one in November 1997 and one in September 1999;
she also gave Schultz a power of attorney for Janet.   But Schultz
was never formally appointed as Janet's guardian.
          After the state took custody of Janet and decided to
place her in an adoptive home, Schultz moved to intervene in the
CINA proceeding, seeking to retain custody  of her.  The superior
court denied his motion to intervene, but provided for continued
visitation.  We affirmed that decision. [Fn. 2]
          The superior court subsequently held a hearing on the
state's petition to terminate Spencer's parental rights.  At the
conclusion of the hearing, the court entered a termination order
under AS 47.10.088, [Fn. 3] finding that the state had proved by
clear and convincing evidence that Janet was a child in need of aid
under several alternative statutory theories, particularly AS
47.10.011(1) and (10). [Fn. 4]  The court also found that Spencer
had failed to remedy the situation that placed Janet in danger,
despite the state's reasonable efforts to reunite Spencer with her
children.   Furthermore, the court concluded that terminating
Spencer's parental rights would serve Janet's best interests. 
Spencer appeals.
III. DISCUSSION [Fn. 5]
          The trial court based its order terminating Spencer's
parental rights in part on its finding that Spencer had abandoned
Janet under AS 47.10.013(a)(4).  That provision allows a finding of
abandonment "when the parent or guardian, without justifiable cause
. . . failed to participate in a suitable plan or program designed
to reunite the parent or guardian with the child."  In reaching
this decision the court ruled that Schultz did not meet the
statutory definition of a guardian: "[a] natural person who is
legally appointed guardian of the child by the court." [Fn. 6]  The
court went on to find that Spencer suffered from a longstanding
problem of substance abuse and had failed to address this condition
despite the department's reasonable efforts to assist her.  While
recognizing that a person attempting to address a chronic substance
abuse problem can be expected to experience occasional difficulties
and relapses, the court stressed that Spencer had completely ceased
treatment, continued to abuse drugs, and showed no desire or
ability to complete the department's plan to reunite her with her
children.  Spencer does not dispute these factual findings.
          Spencer nevertheless argues that her rights should not
have been terminated because she had implemented a plan to make
Schultz Janet's legal guardian, thereby precluding the court from
finding that she had abandoned Janet under AS 47.10.013(a)(4),
which required proof that she failed to follow a plan to reunite
the child with a "parent or guardian." [Fn. 7] 
          But in our view the superior court properly applied the
statutory definition of "guardian" in this case, correctly
recognizing that it precluded Schultz from being considered a
guardian because he had not been "legally appointed [as] guardian
of the child by the court." [Fn. 8]  Indeed, our earlier decision
affirming the superior court's order denying Schultz's motion to
intervene implicitly recognized that he was not a guardian. [Fn. 9] 
Although AS 47.10.990(12) does allow the statutory definition of
guardian to be broadened when "context otherwise requires," [Fn. 10]
we see nothing in the context of the abandonment statute that
requires another definition, and Spencer fails to advance any other
contextual reason to adopt one.  Thus, the superior court properly
ruled that Spencer had abandoned Janet by failing to complete the
state's plan for reunification.              Spencer also
challenges the superior court's finding that her chronic substance
abuse placed Janet at substantial risk of harm.  Spencer contends
that her continued substance abuse did not expose Janet to any
danger because Spencer had arranged for Schultz to care for Janet
when Spencer relapsed into substance abuse. [Fn. 11]  But the
superior court's findings are not clearly erroneous.  
          The court properly found that, despite Schultz's
competent caregiving, Spencer's conduct continued to expose Janet
to a substantial risk of harm because Spencer's substance abuse
prevented Janet from forming a stable child/parent bond.  As the
superior court explained, the problem of Janet's need for stability
could not be solved simply by having Schultz available to care for
the child.  Spencer was the cause of the instability: she would
make herself available as a parent only occasionally, drifting in
and out of Janet's life when it suited her (Spencer's) needs, and
refusing to change her lifestyle in a way that would allow Janet to
form a stable and healthy relationship.  Spencer had been out of
treatment and continuously abusing substances for over eight
months.  As the trial court specifically noted,  her conduct was
"wholly inadequate as far as the needs of" Janet. 
           The findings are not clearly erroneous.  Thus, the
record supports the trial court's ruling under AS 47.10.011(10) 
that Janet was at substantial risk of harm because of Spencer's
substance abuse. [Fn. 12]  And our review of the record convinces
us that the trial court did not abuse its discretion in concluding
that termination was in Janet's best interests.
IV.  CONCLUSION
          We AFFIRM the termination order.


                            FOOTNOTES


Footnote 1:

     To protect the anonymity of the parties, we use pseudonyms
throughout this opinion.


Footnote 2:

     "Schultz" v. State, Dep't of Health & Soc. Servs., Mem. Op. &
J. No. 1008, at 4-5 (Alaska, December 13, 2000).


Footnote 3:

     AS 47.10.088 provides in relevant part:

       (a)  Except as provided in AS 47.10.080(o),
the rights and responsibilities of the parent regarding the child
may be terminated for purposes of freeing a child for adoption or
other permanent placement if the court finds
(1)    by clear and convincing evidence that
(A)    the child has been subjected to conduct or conditions
described in AS 47.10.011; and
(B)    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; and
(2)    by preponderance of the evidence that the department has
complied with the provisions of AS 47.10.086 concerning reasonable
efforts.
(b)    In making a determination under (a)(1)(B) of this section, the
court may consider any fact relating to the best interests of the
child, including
(1)    the likelihood of returning the child to the parent within a
reasonable time based on the child's age or needs;
(2)    the amount of effort by the parent to remedy the conduct or
the conditions in the home;
(3)    the harm caused to the child;
(4)    the likelihood that the harmful conduct will continue; and
(5)    the history of conduct by or conditions created by the parent.
(c)    In a proceeding under this chapter involving termination of
the parental right of a parent, the court shall consider the best
interests of the child.


Footnote 4:

  AS 47.10.011 provides in pertinent 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
. . . ; 
       . . . .
       (10) the parent, guardian, or custodian's
ability to parent has been substantially impaired by the addictive
or habitual use of an intoxicant, and the addictive or habitual use
of the intoxicant has resulted in a substantial risk of harm to the
child; . . . .


Footnote 5:

  When reviewing a superior court's termination of parental
rights, we apply the clearly erroneous standard to the superior
court's factual findings.  T.F. v. State, Dep't of Health & Soc.
Servs., 26 P.3d 1089, 1092 (Alaska 2001).  We use our independent
judgment to decide questions of law, such as determining whether
these factual findings satisfy applicable CINA provisions.  Id.;
see also M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d
1141, 1143 (Alaska 2001).  We also use our independent judgment
when interpreting statutes.  F.T. v. State, 862 P.2d 857, 861 n.4
(Alaska 1993).


Footnote 6:

  AS 47.10.990(12).  "In this chapter, unless the context
otherwise requires, . . . 'guardian' means a natural person who is
legally appointed guardian of the child by the court."


Footnote 7:

  See AS 47.10.013(a)(4) (emphasis added).


Footnote 8:

  See AS 47.10.990(12).


Footnote 9:

  "Schultz" v. State, Dep't of Health & Soc. Servs., Mem. Op. &
J. No. 1008, at 4-5 (Alaska, December 13, 2000).


Footnote 10:

  See note 6, supra.


Footnote 11:

  Spencer  criticizes the superior court for focusing on her
failure to address her substance abuse problems, rather than
focusing on the risk of harm to Janet.  Spencer points out that the
superior court's written findings do not expressly state that
Spencer's substance abuse continued to place Janet at risk of
substantial harm.  But a review of the superior court's more
complete oral findings establishes that the court fully considered
the risk of harm to Janet and expressly found that Spencer's
substance abuse continued to place Janet in danger of suffering
substantial emotional harm.


Footnote 12:

  Our decision affirming the superior court on this ground makes
it unnecessary to address the court's findings of alternative
grounds for termination.  We also need not address Spencer's
constitutional claim, which depends on the incorrect factual
assumption that the risk of harm to Janet would have been avoided
by placing her in Schultz's care, while allowing Spencer to
continue her existing maternal relationship.
Spencer's argument assumes that the risk of Janet suffering
physical danger was the primary focus that led the superior court
to terminate.  But, as indicated by our discussion in the text, the
superior court terminated Spencer's parental rights on the basis of
the continuing emotional risk to Janet; the court found that Janet
desperately needed to form a bond with a stable and dependable
parent and that she was suffering devastating emotional harm from
her continuing exposure to her mother   who drifted in and out of
Janet's life whenever she pleased.  Continuing court-exerted
control over Spencer would not have protected Janet from this risk
of emotional harm; rather it would have simply perpetuated the
existing harm.