You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
S.B. v. State, Dept. of Health and Social Services (12/27/2002) sp-5653
S.B. v. State, Dept. of Health and Social Services (12/27/2002) sp-5653
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,
email corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
S.B., )
) Supreme Court No. S-10032
Appellant, )
) Superior Court No.
v. ) 1JU-99-70 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION OF ) [No. 5653 - December 27,
2002]
FAMILY & YOUTH SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Roger D. Snippen, Law Offices
of Roger D. Snippen, Juneau, for Appellant.
Brad J. Brinkman, Assistant Attorney General,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee. Janine Reep, Assistant
Public Advocate and Guardian Ad Litem,
Juneau, and Brant McGee, Public Advocate,
Anchorage, for GAL.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
EASTAUGH, Justice, concurring.
I. INTRODUCTION
The superior court terminated the parental rights of
Sara Blake1 to her son, Timothy. Blake argues that the superior
court lacked both subject matter and personal jurisdiction, and
erred in refusing to appoint her new counsel and in denying her
request for a continuance. Because the superior court had
subject matter jurisdiction under the home state jurisdiction
provision of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), we reject Blakes first argument.
Because personal jurisdiction is not required for status
determinations under the UCCJEA, we reject Blakes second
argument. And because we conclude that her remaining arguments
concerning the appointment of new counsel and denial of a
continuance are without merit, we affirm the termination of
Blakes parental rights.
II. FACTS AND PROCEEDINGS
Timothy was born to Sara Blake and John Williams2 in
1991 in California. Blake has an extensive criminal history,
including multiple arrests for drug possession and prostitution.
Blake has failed to consistently care for any of her five
children for a substantial amount of time. During the
termination proceeding, Blake admitted that she has spent
fourteen years in prison out of the last seventeen. Blake has
had a serious drug problem since the age of fourteen, well over
twenty years. In addition, Blake has been investigated on
numerous occasions over a period of thirteen years for child
abuse and neglect.
At four months of age, Timothy was removed from his
mothers care and placed with his paternal grandmother, Laura
Iverson. In 1992 the Superior Court of California appointed
Laura to be Timothys guardian and prohibited Blake and Williams
from visiting him. Over the next five years, Lauras health
declined, and in November 1996 she sent the child to Juneau to
live with Lynne Bailey, Johns ex-wife and mother of Timothys two
half-siblings. In November 1997 Laura wrote a notarized letter
purporting to transfer guardianship to Lynne. Laura died in
1998. Timothy has lived in Alaska with Lynne, her new husband,
and his two half-siblings since 1996.
The Alaska Department of Health and Social Services,
Division of Family and Youth Services (DFYS), filed a Child in
Need of Aid (CINA) petition in October 1999. Superior Court
Judge Patricia A. Collins appointed a public defender to
represent Blake and appointed a guardian ad litem (GAL) for
Timothy. The court adjudicated Timothy a child in need of aid in
February 2000 under AS 47.10.011 sections (1), (2), (9), and
(10),3 and committed him to the custody of DFYS in April 2000.
DFYS filed a petition to terminate Blakes parental rights, and
the court did so in January 2001 after conducting a termination
trial in November 2000.
Blake now appeals.
III. STANDARD OF REVIEW
We will overturn a factual finding in a CINA case only
if it is clearly erroneous.4 A finding is clearly erroneous if
it leaves us with a definite and firm conviction on the entire
record that a mistake has been made. 5
We review questions regarding both subject matter
jurisdiction and personal jurisdiction de novo, as
[j]urisdictional issues are questions of law subject to this
courts independent judgment.6 Accordingly, this courts duty is
to adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.7
Parents have a due process right to effective
assistance of counsel in proceedings terminating their parental
rights.8 Whether this due process right, such as the right to
effective assistance of counsel, has been violated is a question
of law.9 As we examine questions of law under a de novo standard
of review, we will adopt the rule of law that is most persuasive
in light of precedent, reason, and policy.10
Refusals to grant continuances are reviewed for abuse
of discretion.11 The superior courts refusal to grant a
continuance will be upheld unless after reviewing the whole
record, we are left with a definite and firm conviction that the
trial court erred.12
IV. DISCUSSION
A. The Trial Court Had Jurisdiction To Terminate Blakes
Parental Rights to Timothy.
1. Subject matter jurisdiction
1. Blake claims the superior court lacked subject matter
jurisdiction to terminate her parental rights to Timothy. Blake
concedes that the superior court had temporary emergency
jurisdiction over Timothy, but argues that the court wrongfully
retained jurisdiction for longer than necessary to ensure his
safety. The superior court did not address the question of
Californias jurisdiction, holding only that [t]he court has
jurisdiction over the parties and the subject matter of the
proceeding as the child resided in Alaska for more than six
months preceding the initiation of [the] proceedings.13
This case requires us to consider the
interrelationships of two provisions of the UCCJEA. We must
first determine whether the superior courts termination order
modified a child custody determination made by the California
court, which would require Alaska to have jurisdiction to modify
Californias determination under AS 25.30.320. If the superior
courts termination order did not modify a California child
custody determination, we must then determine whether Alaska had
jurisdiction to make an initial custody determination under AS
25.30.300.
a. The superior courts order did not modify a California child
custody determination.
a. Alaskas jurisdiction to modify the child custody
determinations of other states is severely limited by AS
25.30.320.14 Because that statute applies only to the
modification of child custody determinations, we must decide
whether the California order constituted a child custody
determination. Alaska Statute 25.30.909(3) defines that term as:
a judgment, decree, or other order of a court
providing for the legal custody, physical
custody, or visitation with respect to a
child, including a permanent, temporary,
initial, and modification order, except that
the term does not include an order relating
to child support or other monetary obligation
of an individual . . . .
If the death of Timothys guardian terminated
Californias guardianship order, Californias original guardianship
determination is not an existing, ongoing child custody
determination capable of modification, and Alaskas jurisdiction
is not limited by AS 25.30.320. We look to California law to
determine whether the California order survived the death of
Timothys guardian. Section 2630 of the California Probate Code
provides that the relationship of guardian and ward is terminated
by the death of either, but that the California court retains
jurisdiction following such death for the purpose of settling the
accounts of the guardian or conservator or for any other purpose
incident to the enforcement of the judgments and orders of the
court upon such accounts or upon the termination of the
relationship.15 But any order incident to the wrapping up of the
accounts of the guardian under Section 2630 of the California
Probate Code would not be an order providing for the legal or
physical custody of the child or visitation, and thus could not
constitute a child custody determination under AS 25.30.320.
Accordingly, we conclude that with the death of the guardian
there was no existing child custody determination.
Alternatively, California might have resuscitated its
earlier child custody order by using its power to appoint a new
guardian. Construing the predecessor statute to section 2630, a
California court in In re Estate of Mims16 held that while the
death of a guardian automatically revokes that guardians
appointment, the court may appoint a new guardian without
specifically terminating the first guardianship.17 But In re
Estate of Mims limited this holding by stating that the
guardianship continues, but a new guardian must be appointed.18
As previously described, the Superior Court of California
appointed Laura Iverson as Timothys guardian in 1992, and she
died in April 1998. The order contains no provision covering
this situation, and California did not act to appoint a new
guardian. Because California did not appoint a new guardian, its
child custody determination ended with the death of Timothys
guardian.
Finally, it might be argued that the California courts
no-contact order constituted a child custody determination. We
reject that argument, because AS 25.30.909(3), in defining the
phrase, specifies only affirmative custodial orders, rather than
orders merely precluding contact.
California law also supports the conclusion that
California did not possess modification jurisdiction under its
Uniform Child Custody Jurisdiction Act (UCCJA), which is
applicable because it was in effect as of October 1999,19 when
this suit was filed.20 Californias UCCJA21 provided that
California had neither initial nor modification jurisdiction if
it was no longer the home state of the child and no longer had a
significant connection to the child.22 In determining its home
state jurisdiction, California looks to where the children live,
where the most evidence of their daily living conditions will be
found, where the continuity and stability of their parental
relationship and their daily routines will be least disrupted by
the legal procedure. . . .[] The childrens home is the
presumptively correct forum.23 Under this test, it is clear that
California did not maintain home state jurisdiction because
Timothy had been living in Alaska for almost three years, all
evidence of his daily living conditions was in Alaska, and his
daily routine and stability could only be maintained in Alaska.
Likewise, California no longer possessed significant connection
jurisdiction under Californias best interest of the child test,
which does not allow jurisdiction unless it is demonstrated
[that] the child and at least one parent have a significant
connection with [California] and that there is available in
California substantial evidence concerning the childs care and
relationships with others. 24 Because Timothy has had virtually
no connection with California, that state did not possess
significant connection jurisdiction to modify its initial child
custody determination. As a result, California no longer had
modification jurisdiction under its UCCJA, and there was no
ongoing child custody determination that would restrict Alaskas
exercise of jurisdiction by limiting it to the narrow
modification jurisdiction of AS 25.30.320.
b. Alaska properly exercised initial child custody jurisdiction
as Timothys home state.
a. We turn next to the question whether Alaska properly
exercised initial child custody jurisdiction. Alaska Statute
25.30.300(a)25 sets out the circumstances under which a court of
this state has jurisdiction to make an initial child custody
determination. The superior court asserted jurisdiction under
subsection (1): if . . . this state is the home state of the
child on the date of the commencement of the proceedings. That
decision was correct if Alaska was Timothys home state when this
proceeding was commenced in October 1999. Accordingly, we must
determine whether Alaska meets the definition of a home state
under AS 25.30.309(7).26
For purposes of this discussion, the statute contains
two requirements: that the child have been present in this state
for at least six consecutive months before the commencement of
the action, and that the child have been here with a parent or
[a] person acting as a parent. Timothy was here for almost three
years before the action was filed, so the only question is
whether Lynne Bailey was a person acting as a parent. To answer
that question, we must look to the definition of that phrase
under AS 25.30.909(13).27
That statute too contains two requirements that are
relevant to this case: that the person have had physical custody
of the child for at least six consecutive months before the
commencement of the action and that the person claim a right to
legal custody under the laws of this state. Physical custody is
defined in AS 25.30.909(14) as the physical care and supervision
of a child. We believe that physical custody as used in AS
25.30.909(13), therefore, refers to de facto, as distinct from
legally awarded or de jure, authority for the physical care and
supervision of a child. By contrast, legal custody in the
statute refers to legally awarded, or de jure, authority for some
aspect of the childs care.
Using these terms as so understood, Bailey has had
physical custody over Timothy since November 1996, almost three
consecutive years before the commencement of this proceeding.
Thus the only remaining question is whether she claims a right to
legal custody under the laws of this state.
Literally, Bailey has made such a claim since she seeks
to adopt Timothy. But we think that the statute also requires
that a claim of a right to legal custody be at least legally
plausible. That is the case here, for Alaska recognizes the
rights of nonparents to exercise legal custody of children over
the competing claims of parents when the welfare of the child so
requires, upon a showing that it clearly would be detrimental to
the child to permit the parent to have custody.28 That standard
is at least plausibly satisfied under the facts of this case
given Blakes personal circumstances, the fact that Timothy has
not lived with her since infancy, and the fact that Bailey had
been exercising physical custody of Timothy for almost three
years before the present action was filed.
In consideration of the foregoing, we conclude that
Lynne Bailey has physical custody of Timothy and claims a right
to his legal custody in the sense meant by the statute. She thus
qualifies as a person acting as a parent under AS 25.30.909(13).
It follows that the superior court had subject matter
jurisdiction to adjudicate the states petition to terminate
Blakes parental rights under AS 25.30.300(a)(1). Finally, since
California no longer had jurisdiction and Alaska did have
jurisdiction, the exercise of jurisdiction by the superior court
was proper under the Parental Kidnaping Prevention Act.29
2. Personal jurisdiction
Blake also argues that the superior court lacked
jurisdiction over her personally because she had no contacts with
Alaska, much less minimum contacts. DFYS argues that under
Alaska Civil Rule 12(h) Blake waived any objection regarding the
lack of personal jurisdiction by failing to raise this issue as
required by Civil Rule 12(b).30 But Blake stated at a December
1999 status conference that I dont even think Alaska has
jurisdiction because [indiscernible] California does. She also
stated at the April 2000 CINA disposition hearing that Timothy
should not be in the custody of the state of Alaska because [h]e
has no family ties up there and that she was his parent and she
was in California. We conclude that these assertions were
sufficient to raise the issue.
As a general rule, a forum may not exercise
jurisdiction over a non-consenting party consistent with the
requirements of due process unless that party has certain minimum
contacts with the forum state.31 This usually means that the
party must purposefully avail[] itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.32 There is no question that
Blake has not purposefully availed herself of the benefits of
Alaskas laws. But because this case falls under an exception to
the general rule, Alaskas power to terminate her parental rights
does not depend upon her contacts with Alaska at all, but on
Alaskas contacts with her child, Timothy.
In Shaffer v. Heitner,33 the United States Supreme Court
expanded the minimum contacts rule to cover almost all cases,
whether labeled in rem, quasi in rem, or in personam.34 But the
Court recognized that this single standard could not accommodate
some necessary litigation,35 and recognized that certain
jurisdictional rules, such as the particularized rules governing
adjudication of status, are not inconsistent with the standard of
fairness.36 The majority of courts that have addressed the issue
have held that child custody proceedings conducted under the
jurisdictional rules of the UCCJA fit within Shaffers status
exception, meaning that personal jurisdiction over non-consenting
parties is not required.37 Likewise, numerous courts that have
considered whether termination proceedings fit within the status
exception have held that they do.38 The reasoning of both sets of
cases is persuasive, and both apply here.39 Accordingly, we hold
that Blakes due process rights were not violated by the superior
courts assertion of jurisdiction over her in spite of her lack of
contacts with Alaska.
B. The Superior Court Did Not Err in Refusing To Appoint
New Counsel.
The superior court appointed a public defender to
represent Blake at the first hearing in this case. At nearly
every subsequent hearing Blake complained that the public
defender was ineffective and asked the court to appoint
substitute counsel or to allow her to represent herself. The
superior court allowed her to represent herself pro se from the
February 2000 adjudication forward. The court construed her
complaints as ineffective assistance claims and rejected them on
at least three occasions, refusing to appoint new counsel. After
determining that Blake was competent to represent herself, the
court asked the public defender to continue to participate in the
proceedings as advisory counsel.
Blake argues that the trial court erred in failing to
appoint substitute counsel. She argues that the public defender
did not raise the jurisdictional issues discussed above, did not
assist her in subpoenaing witnesses, and did not communicate with
her generally.
First, we recognize the general rule that pro se
defendants may not raise ineffective assistance claims against
advisory counsel.40 The only exception to this rule occurs when
the advisory counsel oversteps his limited role and assumes a
degree of control consistent with legal representation.41 But
Blakes complaint is that the public defender did too little, not
too much. Thus, from the moment she decided to represent herself
she lost the right to claim that any subsequent acts of advisory
counsel constituted ineffective assistance.
As to the public defenders decisions prior to his
dismissal by Blake, we conclude that they did not fall below the
range of reasonable actions which might have been taken by an
attorney skilled in the . . . law. 42 Blake claims that the
public defender failed to prepare subpoenas for reluctant
witnesses, but at trial Blake admitted that she had not given her
witness list to the public defender because she did not trust
him. The public defender stated that she eventually gave him a
list of witnesses, but they were all already scheduled to be
called by the state.
Blake further claims that the public defender did not
return her calls or make sufficient attempts to communicate with
her, but the public defender related the contents of several
conversations he had with her. The trial court was in the best
position to evaluate these fact-intensive claims, and its
conclusions appear to be reasonable. We find no error here.
Finally, the public defenders failure to raise the
jurisdictional issues now argued on appeal is likewise
insufficient for an ineffective assistance claim. As we stated
in Risher, [l]awyers may display a wide spectrum of ability and
still have their performance fall within the range of competence
displayed by one of ordinary training and skill.43 While we doubt
that this standard was breached here, we need not decide the
issue, for Rishers second requirement for an ineffective
assistance claim is a showing that the lack of competency
contributed to the adverse result.44 Blake admits that it is
highly unlikely the end result for [Blake] would have been
different under California law had the court ruled that Alaska
lacked subject matter jurisdiction to terminate her parental
rights. Thus, Blake surrendered the second prong of her
ineffective assistance claim, and cannot prevail upon it.
Accordingly, the trial court did not err in declining to appoint
new counsel for Blake.
C. The Superior Court Did Not Abuse Its Discretion by
Failing To Grant Blakes Requests for Continuances.
Following the trial courts suggestion, Blake requested
a continuance at the outset of the February 2000 CINA
adjudication trial to give herself more time to locate witnesses.
The state requested that it go forward with testimony from three
witnesses already scheduled to participate that day. The trial
court granted this request, and decided to hold the continuance
issue in abeyance over the weekend, stating that it would resume
consideration of the issue if Blake was unable to locate her
witnesses in that time. Blake did not renew her continuance
request the next week. She now argues it was error not to grant
her initial request, but does not explain why she failed to renew
her request as suggested by the court. The actions undertaken by
the superior court were not an abuse of discretion.
Blake also requested a continuance at a November 3,
2000 status conference, three days before the termination trial
was scheduled to begin. Blake explained that she just got out of
prison. I had to go for a dryout that was unexpected. As a
result, she had not had time to prepare for trial. The trial
court explained that the termination trial had been calendered
for months, and refused the request. Again, Blake does not
explain how the court erred in denying her request. As DFYS
explains, all CINA cases are extremely time-sensitive, and Blake
offers no reason why her lack of preparation required the court
to take the extraordinary measure of rescheduling a trial less
than three days before it was set to begin. We hold that the
superior court did not err in failing to grant Blakes
continuances.
V. CONCLUSION
We hold that the superior court had jurisdiction over
the termination proceedings, that Blakes claim for ineffective
assistance of counsel has no merit, and that the superior court
did not err in refusing to grant Blakes continuances.
Accordingly, we AFFIRM the decision of the superior court in its
entirety.
EASTAUGH, Justice, concurring.
I concur in the result the court reaches and the
reasoning it employs, because appellant has not demonstrated the
existence of any California decree which satisfies the definition
of child custody determination contained in AS 25.30.909(3). The
order appointing Laura Iverson as Timothys guardian did not
otherwise award legal or physical custody of the child to any
other person or entity, or create in the abstract a guardianship
that would survive the death of the guardian. It is therefore
correct to conclude that Laura Iversons death terminated the
order that made her Timothys guardian, the only order which
appellant has brought to our attention in arguing that Alaska has
no jurisdiction.
_______________________________
1 Pseudonyms have been used for all family members
involved in this case.
2 Timothys father relinquished his parental rights in
April 2000 and he is not a party to this appeal.
3 AS 47.10.011 provides in relevant part:
[T]he 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;
(2) a parent, guardian, or custodian is
incarcerated, 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, and the incarcerated
parent has not made adequate arrangements for
the child;
. . . .
(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;
(10) the parent, guardian, or custodians
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; if a
court has previously found that a child is a
child in need of aid under this paragraph,
the resumption of use of an intoxicant by a
parent, guardian, or custodian within one
year after rehabilitation is prima facie
evidence that the ability to parent is
substantially impaired and the addictive or
habitual use of the intoxicant has resulted
in a substantial risk of harm to the child as
described in this paragraph[.]
4 In re S.A., 912 P.2d 1235, 1237 (Alaska 1996).
5 Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (quoting
R.F. v. S.S., 928 P.2d 1194, 1196 n.2 (Alaska 1998)).
6 McCaffery v. Green, 931 P.2d 407, 408 n.3 (Alaska
1997).
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 V.F. v. State, 666 P.2d 42, 47-48 (Alaska 1983).
9 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000).
10 Guin v. Ha, 591 P.2d at 1284 n.6.
11 Gregoire v. Natl Bank of Alaska, 413 P.2d 27, 33
(Alaska 1966).
12 Nelson-Lizardi v. Lizardi, 49 P.3d 236, 239 (Alaska
2002).
13 By this holding the superior court may have meant to
imply that Alaska, as Timothys home state, had jurisdiction to
make an initial custody determination under AS 25.30.300(a)(1).
While we agree that Alaska had initial custody jurisdiction, it
is necessary first to determine whether California had continuing
modification jurisdiction.
14 AS 25.30.320 states:
Except as otherwise provided in AS 25.30.330,
a court of this state may not modify a child
custody determination made by a court of
another state unless a court of this state
has jurisdiction to make an initial
determination under AS 25.30.300(a)(1), (2),
or (3) and (1) the court of the other
state determines it no longer has exclusive,
continuing jurisdiction under provisions
substantially similar to AS 25.30.310 or that
a court of this state would be a more
convenient forum under provisions
substantially similar to AS 25.30.360; or (2) a court of this
state or a court of the other state determines that neither the
child, nor a parent, nor a person acting as a parent presently
resides in the other state.
15 Cal. Prob. Code 2630 (West 2002).
16 20 Cal. Rptr. 667 (Cal. App. 1962).
17 Id. at 671.
18 Id.
19 California adopted the UCCJEA, replacing the UCCJA,
effective January 1, 2000. Uniform Child Custody Jurisdiction
and Enforcement Act, Stats. 1999, ch. 867 (S.B. 1999) (codified
as amended at Cal. Fam. Code 3400); In re Nada R., 108 Cal.
Rptr. 2d 493, 499 (Cal. App. 2001) (explaining that California
adopted the UCCJEA, formerly UCCJA, in January of 2000).
20 DFYS filed and served Timothys father with a child in
need of aid petition on October 1, 1999 and amended the petition
to include Blake on October 14, 1999.
21 Cal. Fam. Code 3403 (repealed 1999) (formerly Cal.
Civ. Code 5152) read in relevant part:
(a) A court of this state which is competent
to decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if the conditions as set forth in any
of the following paragraphs are met:
(1) This state (A) is the home state of
the child at the time of commencement of the
proceeding, or (B) had been the childs home
state within six months before commencement
of the proceeding and the child is absent
from this state because of his removal or
retention by a person claiming his custody or
for other reasons, and a parent or person
acting as parent continues to live in this
state.
(2) It is the best interest of the child
that a court of this state assume
jurisdiction because (A) the child and his
parents, or the child and at least one
contestant, have a significant connection
with this state, and (B) there is available
in this state substantial evidence concerning
the childs present or future care,
protection, training, and personal
relationships.
22 In re Marriage of Steiner, 152 Cal. Rptr. 612, 617
(Cal. App. 1979) (applying California Civil Code section
5152(1)(a)-(b) to deny Californias jurisdiction to modify
Colorados modification of a California child custody
determination).
23 In re Marriage of Newsome, 80 Cal. Rptr. 2d 555, 560
(Cal. App. 1998) (quoting Hafer v. Superior Court, 179 Cal. Rptr.
132, 137 (Cal. App. 1981) (in which the court applied California
Civil Code section 5152 to determine that neither initial home
state nor significant connection jurisdiction existed in
California where the mother and children had lived in Texas for
the three years prior to the commencement of the child custody
proceeding)).
24 Id. at 561 (quoting Plas v. Superior Court, 202 Cal.
Rptr. 490, 494 (Cal. App. 1984)).
25 AS 25.30.300(a) states:
Except as otherwise provided in AS 25.30.330,
a court of this state has jurisdiction to
make an initial child custody determination
only if
(1) this state is the home state of the
child on the date of the commencement of the
proceeding;
(2) this state was the home state of the
child within six months before the
commencement of the proceeding and the child
is absent from this state but a parent or
person acting as a parent continues to live
in this state;
(3) a court of another state does not
have jurisdiction under provisions
substantially similar to (1) or (2) of this
subsection, or a court of the home state of
the child has declined to exercise
jurisdiction on the ground that this state is
the more appropriate forum under provisions
substantially similar to AS 25.30.360 or
25.30.370, and
(A) the child and the childs
parents, or the child and at least one parent
or a person acting as a parent, have a
significant connection with this state other
than mere physical presence; and
(B) substantial evidence is
available in this state concerning the childs
care, protection, training, and personal
relationships;
(4) all courts having jurisdiction under
the criteria specified in (1)-(3) of this
subsection have declined to exercise
jurisdiction on the ground that a court of
this state is the more appropriate forum to
determine the custody of the child under
provisions substantially similar to AS
25.30.360 or 25.30.370; or
(5) no court of another state would have
jurisdiction under the criteria specified in
(1)-(4) of this subsection.
26 AS 25.30.909(7) defines home state as:
[t]he state in which a child lived with a
parent or a person acting as a parent for at
least six consecutive months, including any
temporary absences of the child or parent or
person acting as a parent, immediately before
the commencement of a child custody
proceeding, except that, in the case of a
child who is less than six months of age, the
term means the state in which the child lived
from birth with any of the persons mentioned,
including any temporary absences.
27 AS 25.30.909(13) states that person acting as a parent
means a person, other than a parent, who
(A) has physical custody of a child or
has had physical custody for a period of six
consecutive months, including temporary
absence, within one year immediately before
the commencement of a child custody
proceeding; and (B) has been awarded
legal custody by a court or claims a right to
legal custody under the law of this state[.]
28 Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975).
29 28 U.S.C. 1738A states in pertinent part:
(a) The appropriate authorities of every
State shall enforce according to its terms,
and shall not modify except as provided in
subsections (f), (g), and (h) of this
section, any custody determination or
visitation determination made consistently
with the provisions of this section by a
court of another State.
. . . .
(f) A court of a State may modify a
determination of the custody of the same
child made by a court of another State, if
(1) it has jurisdiction to make
such a child custody determination; and
(2) the court of the other State no
longer has jurisdiction, or it has declined
to exercise such jurisdiction to modify such
determination.
(g) A court of a State shall not
exercise jurisdiction in any proceeding for a
custody or visitation determination commenced
during the pendency of a proceeding in a
court of another State where such court of
that other State is exercising jurisdiction
consistently with the provisions of this
section to make a custody or visitation
determination.
(h) A court of a State may not modify a
visitation determination made by a court of
another State unless the court of the other
State no longer has jurisdiction to modify
such determination or has declined to
exercise jurisdiction to modify such
determination.
30 Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294
(Alaska 1976) (stating that defense of lack of personal
jurisdiction must be pleaded on answer or by motion or be
waived).
31 Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
32 Hanson v. Denckla, 357 U.S. 235, 253 (1958).
33 433 U.S. 186 (1977).
34 Id. at 212.
35 Id. at 201.
36 Id. at 208 n.30.
37 Balestrieri v. Maliska, 622 So. 2d 561, 562-64 (Fla.
Dist. App. 1993) (collecting cases sustaining status
adjudications in the absence of personal jurisdiction); David J.
Benson, Can a Case Be Made for the Use of the Uniform Child
Custody Jurisdiction Act in Child Support Determinations?, 26
Gonz. L. Rev. 125, 134 n.6 (1990) (collecting cases). We noted
this trend in McCaffery v. Green, 931 P.2d 407, 413 n.14 (Alaska
1997), but did not need to reach the issue.
38 In re Appeal in Maricopa County, 543 P.2d 454, 459
(Ariz. App. 1975); In re M.L.K., 768 P.2d 316, 319 (Kan. App.
1989); Wenz v. Schwartze, 598 P.2d 1086, 1092 (Mont. 1979); In re
Adoption of Copeland, 43 S.W.3d 483, 487 (Tenn. App. 2000);
White v. Blake, 859 S.W.2d 551, 564 (Tex. App. 1993); In re
M.S.B., 611 S.W.2d 704, 706 (Tex. App. 1980).
39 The UCCJEA, which replaced the UCCJA in Alaska in 1999,
governs Alaskas assumption of jurisdiction in all child custody
determinations, AS 25.30.300(a) & .330(a) (providing exclusive
bases for assertion of subject matter jurisdiction to make
initial custody determination), and defines child custody
proceeding to include CINA and termination of parental rights
proceedings. AS 25.30.909(4). See also E.H. v. State, Dept of
Health & Soc. Servs., 23 P.3d 1186, 1191 (Alaska 2001).
40 E.g., Downey v. People, 25 P.3d 1200, 1203 (Colo. 2001)
(collecting cases).
41 Id. at 1204 (collecting cases).
42 P.M. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 42 P.3d 1127, 1131 (Alaska 2002)
(alterations in original); see also Risher v. State, 523 P.2d
421, 424 (Alaska 1974).
43 Risher, 523 P.2d at 424.
44 Id. at 425.
