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. Jeff A.C., Jr. v. Alaska (04/27/2005) sp-5893

This has been WITHDRAWN - see Opinion # 5922

Jeff A.C., Jr. v. Alaska (04/27/2005) sp-5893

     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

JEFF A.C., JR.,                              )
                              )    Supreme Court No. S-11366
               Appellant,          )
                              )    Superior Court No.
     v.                       )    3AN-01-94 CP
                              )
STATE OF ALASKA,                        )    O P I N I O N
                              )
               Appellee.      )    [No. 5893 - April 27, 2005]
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances: Shelley K. Chaffin,  Law  Office
          of   Shelley   K.  Chaffin,  Anchorage,   for
          Appellant.   Mary  Ann  Lundquist,  Assistant
          Attorney  General, Fairbanks,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

          Before:   Bryner,  Chief  Justice,  Eastaugh,
          Fabe,  and  Carpeneti, Justices.   [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.
          BRYNER, Chief Justice, concurring.

I.   INTRODUCTION

            A  father  appeals the termination  of  his  parental

rights  for  his  young  daughter.   Incarcerated  shortly  after

impregnating  the mother, the father did not know of  the  childs

existence  until about one year later.  By that point, the  child

had  been  judged a child in need of aid and the state had  taken

numerous steps to terminate the parental rights of the mother and

her  boyfriend, the putative father, and to permanently place the

daughter  for  adoption with her foster parents.   A  termination

hearing was held regarding both parents about one year after  the

father  learned  of  the  existence of  the  child.   The  mother

voluntarily relinquished her rights, and the court terminated the

fathers  rights on the grounds of abandonment and  neglect.   The

father  contends  that  his procedural due  process  rights  were

violated, and that the superior court erred in its findings  that

he  had  abandoned and/or neglected his daughter, that the  state

had  made reasonable efforts to reunify, and that the termination

was  in the best interests of the daughter.   Concluding that the

fathers  due  process rights were observed by the superior  court

and  that  the  courts findings are supported by the  record,  we

affirm.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          After  his  March  2000 release from  prison,  Jeff  C.

resumed  a relationship with Melanie G.1  Their relationship  was

strained  by physical and verbal aggression and heavy  drug  use.

Jeff  engaged  in  drug distribution and may have  been  Melanies

supplier  of crack cocaine.  In early June 2000 Melanie  suffered

nausea and her period was late.  She testified that she told Jeff

that  she  thought she was pregnant; Jeff denied  this.   Shortly

thereafter,  she  reported a domestic  assault  incident  to  the

police.   When the police stopped Jeff in his vehicle, they  also

discovered  scales with drug residue on them. He was  accordingly

arrested  for violating probation and re-incarcerated  from  June

15,  2000  to  August 15, 2001.  After the arrest,  Jeff  had  no

further contact with Melanie.

          Melanie  continued using cocaine and  marijuana  during

the pregnancy.  On February 14, 2001, Jasmine G. was born cocaine-

positive.  In light of her critical medical condition, the  state

successfully  sought an emergency petition for  child-in-need-of-

aid  (CINA)  adjudication  and  temporary  placement.   Jeff,  in

prison,   was  unaware  of  Jasmines  birth  or  emergency   CINA

adjudication.   After two weeks in intensive care,  Jasmine  went

          home with a foster family, with whom she has resided her entire

life.

          At the birth, Melanie named her then-current boyfriend,

Jimmy  D.,  as the father.  Jimmy agreed that he was the  father.

However,  Melanie mentioned Jeff as another sexual  partner.   In

the  words  of  a  social worker present,  Melanie  was  not  the

greatest  historian regarding the period of time  from  when  she

became  pregnant.  The state listed Jimmy as the putative  father

and requested that the court order him to be tested for paternity

of  Jasmine.2  Because of Jimmys frequent jail transfers and lack

of  a stable residence, the paternity testing proved difficult to

obtain.

          In  May  2001 Melanie told her social worker that  Jeff

could  be  the father, adding that the baby looked like Jeff  and

that  Jeff  was  incarcerated in the Palmer Correctional  Center.

Accordingly,  while  continuing to seek Jimmys  DNA,  the  social

worker also requested Jeffs DNA sample.  The prison replied  that

they  had  no  prisoner named Jeff C.  The state  was  unable  to

further  pursue Jeff at this point because it had no  identifying

information and because there were several persons named Jeff  C.

in  Alaska.   In addition, Melanie was regularly out  of  contact

with  the department, and when she was in contact, she was  often

unhelpful.

          In  July 2001 the superior court accepted a stipulation

by  Melanie  and  Jimmy,  listed as the father,  and  adjudicated

Jasmine  as  a  child in need of aid.  The CINA grounds  were  AS

47.10.011(8) (mental injury) and (10) (intoxicant use), resulting

from  Melanies  prenatal  drug use and both  parents  history  of

assaultive behavior.  The parents consented to treatment plans.

          In   August   2001  Jeff  was  released  from   prison.

Concluding that Anchorage had become a bad environment  for  him,

Jeff  moved  home to Pittsburgh, Pennsylvania to  live  with  his

father and grandmother.  Before his departure, Jeff met with  his

social  worker to discuss outstanding issues related to  his  two

          daughters from a prior relationship who had been adjudicated as

children  in  need  of aid.3  He was unaware of  Jasmine  or  the

proceeding involving her.  Since his return to Pennsylvania, Jeff

claims  that he has avoided drugs, assaultive conduct, and  other

unlawful behavior.

          On November 20 the state received the results of Jimmys

paternity  testing,  which excluded Jimmy as Jasmines  biological

father.   Shortly  thereafter, a social worker in  Jasmines  case

happened to notice the existence of a Jeff C. who was involved in

another  CINA case.4  The state arranged for a paternity test  of

Jeff to be conducted using a DNA sample already collected in  the

other case.

          In  December 2001 the superior court held a disposition

hearing  on Jasmine.  The resulting order concluded that  efforts

to  return  the  child  to Melanie or Jimmy   who  telephonically

appeared in court as the putative father  were unsuccessful, that

Melanie  had  not  complied with her  case  plan  and  Jimmy  was

incarcerated,  and that the state should continue  with  custody.

The court set a permanency hearing for February 13, 2002.

          By  January  2, 2002 the state received the results  of

Jeffs paternity test,

                                         which established him as

the biological father.  Jeff learned of this result on January 30

during  a telephone conversation with the social worker from  his

other  case.  On February 5 Jeff received in the mail  a  summons

for  Jasmines  permanency hearing, with a  copy  of  the  earlier

disposition  order  attached.  Jeff  failed  to  respond  to  the

summons.  After the permanency hearing  in which only the  mother

participated  the court concluded that Jasmine remained  in  need

of aid and that out-of-home permanent placement was in the childs

best  interests.  Accordingly, the court instructed the state  to

proceed to finalize permanency for the child by filing a petition

to  terminate parental rights by March 13, 2002.  The state filed

this  petition on March 12.  Jeff received a copy in the mail  on

                                        April 1.

          Jeff  contacted Jasmines social worker in early  April.

After   numerous  messages  back  and  forth,  the  two   finally

communicated  on  April 23  by which point Jasmine  was  fourteen

months  old.   The social worker told Jeff of the  birth  and  of

Jasmines developmental problems and medical needs resulting  from

the  prenatal substance exposure.  Jeff expressed anger that they

had  obtained and tested his DNA sample without his knowledge  or

permission.  He also asked for additional information,  including

medical  reports.   When  asked  what  he  planned  to  do,  Jeff

responded  that he did not know and that he would call back  that

Friday.  He did not call back on Friday.  The social worker  then

contacted  Melanie, who gave a highly unfavorable  impression  of

Jeffs  personality  and past behavior.5  In later  conversations,

Jeff did not express a firm intent or desire to parent Jasmine.

          On May 2, the social worker informed Jeff that the case

plan  for  his  other daughters would be adopted  in  this  case.

Jasmines case plan also required Jeff to educate himself  on  his

childs  special  needs  and  requirement  for  specialized   care

consulting with the social worker and his childs therapists.  The

case plan had concurrent goals of (1) returning the child to  her

father, and (2) placing the child up for adoption.

          Jeff  was given the opportunity on May 9 to speak  with

the  foster  mother  and to participate in a  conference  on  the

status  of the child.  Jeff declined to participate.  The  social

worker  later asked the foster mother to call Jeff.  In July  the

foster  mother  reached  him  and described  Jasmines  birth  and

medical  problems.  Jeff did not express any intentions or  plans

regarding Jasmine.

          Jeffs  conversations with his social worker during  the

summer of 2002 became increasingly strained.  He expressed  anger

when  he  came  to  understand that the  state  was  concurrently

working toward adoptive placement.  At one point he exploded  and

stated that he thought the state was not being fair with him.  He

          complained that it was hard to reach the social worker and that

he  had  not yet received in the mail any photographs or  medical

information.  Jeffs personal counselor, who sometimes  joined  in

the  conversations, later testified that the relationship between

Jeff and the Alaska social workers was adversarial.

          Jeff  did  not  request visitation with  Jasmine  until

September 4, 2002.  As a trip to Anchorage was planned  to  visit

his  other daughters, Jeff asked if he could also schedule visits

with  Jasmine.  This trip was ultimately cancelled.  On  November

26  Jeff failed to participate in a second administrative  review

of Jasmines case.

          Beginning  in November, Jeff and the foster mother  had

contact  once a month.  Jeff did not state any desire  to  visit,

let  alone  parent, Jasmine.  Though Jeff testified that  he  had

made  up  his  mind  to parent Jasmine as of May  2002,  he  also

testified  that  he  feared  that Jasmine  suffered  from  facial

deformities and consider[ed] relinquishing his parental rights if

she  was  in  dire  straits.   In fact, in October  he  discussed

relinquishing his parental rights with his counselor due  to  the

high  level  of care the child required.  He now argues  that  he

could  not  make a final decision about parenting  before  seeing

certain additional information, including photographs and medical

records.6

          Jeff   traveled  to  Anchorage  in  January   2003   to

participate  in  the mediation of both of his  CINA  cases.   The

mediation  regarding Jasmine was unsuccessful.  During his  stay,

Jeff  was permitted open-ended visitation with Jasmine.  He  made

five visits of one to two hours, supervised by the foster mother.

While it appears that the visits were pleasant, the foster mother

later testified that Jeff spent considerable time talking on  his

cell  phone,  was  in  a hurry to leave, and continued  to  avoid

stating  any  intention  regarding  Jasmine.   Jeff  offered   to

purchase toys and clothes for the daughter, but the foster mother

declined.  Jeff later testified that he was surprised to  find  a

          healthy and beautiful child, not as sickly as described.  While

in  Anchorage, Jeff apparently revived his relationship with  the

mother  of his other children, a relationship in the past  marked

by extensive violence.  Jeff returned to Pennsylvania on February

1  and had no further contact with the social worker.  Jeff later

testified  that  he  did not intend to move  to  Anchorage,  even

temporarily, to establish a gradual bond with Jasmine, unless  he

received an iron-clad guarantee from the state that he would  get

custody.

          Jasmine  continues to have developmental problems.   At

seventeen  months,  she stopped talking and  regressed  in  motor

skills.   She requires ongoing medical monitoring and has  formed

strong  emotional  attachments to her foster mother  and  father.

The  state  put  on expert testimony at trial that  trauma  would

result to Jasmine if removed from her foster familys care.

     B.   Proceedings

          As  noted, the state filed a petition to terminate  the

parental rights of Melanie and Jeff in March 2002.  A bench trial

before Superior Court Judge Morgan Christen began in March  2003.

After   the   state  presented  its  case,  Melanie   voluntarily

relinquished her parental rights.  After the close of trial,  the

superior  court terminated Jeffs parental rights.  It found  that

Jeff  abandoned  Jasmine  under AS 47.10.013(a)(2)-(3),  that  he

neglected her under AS 47.10.014, that he has not remedied  these

conditions,  that  the state made reasonable efforts  to  provide

appropriate family services, based on the facts and circumstances

of  the  case and to achieve permanency for the child,  and  that

termination  was  in  the  best interests  of  the  child.   Jeff

appeals.

III.                          STANDARD OF REVIEW

          Whether  Jeffs  due process rights were violated  is  a

question of law,7 as is  the question whether the superior courts

findings meet the requirements of the applicable child-in-need-of-

aid statutes and rules.8  We review questions of law de novo, and

          will adopt the rule of law that is most persuasive in light of

precedent, reason, and policy.9

          We  review the factual findings underlying the superior

courts  termination decision for clear error,  and  will  reverse

only  if the record leaves us with a definite and firm conviction

that the superior court has made a mistake.10

IV.  DISCUSSION

     A.   Jeffs Procedural Due Process Rights Were Not Violated.

          Jeffs  first  contention on appeal is  that  the  state

violated his rights to procedural due process by denying him  any

opportunity  to  participate  in  an  adjudication  hearing.   He

complains  that he was not given notice of the initial 2001  CINA

adjudication in violation of CINA Rule 7(b), which requires  that

notice  be  given  to  the  parents.   In  addition,  because  an

adjudication  is  generally required before the  state  can  seek

termination of parental rights, Jeff argues that he was  entitled

to  participate  in an adjudication before being subjected  to  a

termination  hearing.  Jeff requested bifurcation of adjudication

and  termination,  but  the  superior court  denied  his  request

without  comment.  We consider first whether due process  or  the

CINA statutes and rules entitled Jeff to first participate in  an

adjudication hearing.

          Due process under the Alaska Constitution requires,  at

a minimum, that parties be notified of the subject of proceedings

concerning  them so that they will have a reasonable  opportunity

to  be heard.11  Similarly, CINA Rule 15(b) requires the state to

give  notice  prior  to an adjudication hearing  to  the  persons

specified in CINA Rule 7(b) within a reasonable time prior to the

hearing.  CINA Rule 7(b) requires the notice to be given  to  the

parents  .  .  .  if  these parties can be found  after  diligent

efforts.

          The   state  filed  an  emergency  petition  for   CINA

adjudication on February 20, 2001, and the parties stipulated  to

probable  cause  for  adjudication two days later.   The  parties

          stipulated to a permanent adjudication that Jasmine was a child

in  need of aid in July 2001.  That stipulation was entered  into

by  Melanie  and Jimmy, her then-boyfriend.  At the time  of  the

emergency  and  permanent  adjudications,  the  state  reasonably

believed  that Jimmy was the father,12 while Jeffs  identity  and

location remained unknown.  Because Jeff could not be found after

diligent efforts, the state had no obligation to send him notice;

accordingly, it complied with the CINA notice requirements during

the initial adjudications.

          Jeff also argues that he has an absolute entitlement to

participate  in  an  adjudication before  being  subjected  to  a

termination hearing.  Generally, an adjudication must take  place

before a termination, even if within the same hearing,13 to  give

the  state  custody  of the child and the court  jurisdiction  to

terminate.14  There is no support in the CINA statutes, rules, or

case  law,  however, for Jeffs proposition that all  parents  are

entitled  to participate in this procedure.  While known  parents

must  be  given  adequate notice, the ultimate focus  of  a  CINA

adjudication is on the child, not the parents.  Thus, a child can

be  adjudicated based on the acts of just one parent, for we have

stated  that the other parents acquiescence or fault in  allowing

the abuse to occur is not required in order to find the child  to

be in need of aid.15  Adjudication is the mechanism to determine a

childs  status and to enter the child into state custody.16   The

parents  action (or inaction) is rather the focus  of  the  later

termination hearing.17

          The  language of the termination statute also indicates

that a specific parents acts need not have been the subject of  a

prior adjudication hearing.  A termination requires the state  to

show  by  clear and convincing evidence that the child  has  been

subjected to conduct or conditions described in [the adjudication

statute]18 and that the parent has not remedied these conditions.19

Thus,  it is not required that such conduct or conditions be  the

same  as  those  which  formed the basis for  the  previous  CINA

          adjudication.20  This case serves as an illustration.  While the

adjudication was based on drug exposure and risk of mental injury

(caused by the mother), the termination of Jeffs rights was based

on  his  abandonment and neglect.  Thus, to terminate his rights,

the  state  needed to prove conduct amounting to  abandonment  or

neglect and that Jeff failed to remedy those conditions.  It  did

not  need  to  prove anything about what initially compelled  the

state  to  seek  custody  to protect  the  child.   We  therefore

conclude  that Jeff did not have an absolute right to participate

in an adjudication hearing.21

     B.   The  Superior Court Did Not Err in Finding  Abandonment
          and Neglect.
          
          Jeff  next  argues that the superior courts conclusions

leading to termination were not supported by the record and  were

therefore  erroneous.  To terminate parental  rights,  the  state

must  first  show by clear and convincing evidence that  (1)  the

child has been subjected to conduct or conditions described in AS

47.10.011 and (2) the parent has failed to remedy such conduct or

conditions.22   Based  upon  its lengthy  factual  findings,  the

superior  court  concluded  that  Jeff  subjected  the  child  to

abandonment  and  neglect  and that he failed  to  remedy  either

condition.    Jeff   argues  that  the  factual   findings   were

insufficient  as  a  matter of law to  support  a  conclusion  of

abandonment or neglect.

          Abandonment  is defined generally as occurring  when  a

parent  .  .  .  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 childs age and need for care  by  an

adult.23   We  have interpreted the general abandonment  test  to

encompass two prongs: (1) whether the parents conduct evidenced a

disregard  for his or her parental obligations, and  (2)  whether

that   disregard  led  to  a  destruction  of  the   parent-child

relationship.24   We apply an objective test to  see  if  actions

demonstrate a willful disregard of parental responsibility; we do

          not look to the parents subjective intent or wishful thoughts and

hopes  for  the child.25  The CINA statutes also define  specific

examples  of  abandonment,  two  of  which  the  superior   court

concluded  were  committed by Jeff: (1) that  he  has  made  only

minimal efforts to support and communicate with the child and (2)

that  he  failed for a period of at least six months to  maintain

regular visitation with the child.26

          The trial courts finding of abandonment under this test

is  adequately  supported by the record.  We  have  said  that  a

parent  has  an  affirmative duty .  .  .  [to  show]  continuing

interest  in the child and [to make] a genuine effort to maintain

communication and association; token efforts to communicate  with

a child will not satisfy this duty.27  The record shows that Jeff

failed to meet his affirmative duty to show a genuine interest in

the child and that his minimal efforts to communicate were merely

token   efforts.    A  review  of  Jeffs  pattern   of   behavior

demonstrates that he failed to objectively manifest a  desire  to

be involved in Jasmines life.

          As  an  initial  matter, Jeff argues that  his  absence

during  the first year of Jasmines life should not count  against

him  because a person cannot abandon a person or relationship the

person does not know exists.  While we agree generally with  this

proposition, we note that Melanie testified at trial  and  in  an

affidavit  that  she  informed Jeff about  a  possible  pregnancy

shortly  after conception.  During and after incarceration,  Jeff

made  no  effort to determine whether he had in fact  fathered  a

child.

          Jeff insists, however, that he did not know of Jasmines

existence  until  January 2002.  Even accepting  his  claim,  the

superior courts finding of abandonment is still justified by  the

evidence  in  the record regarding Jeffs actions between  January

2002 and the start of trial in March 2003.  In February 2002 Jeff

received advance written notice of a permanency hearing regarding

Jasmine   during  which  the  court ordered  termination  of  his

          parental rights  and failed to participate in the hearing or

contact any state office in response.  During his first telephone

conversation  with  the  social worker in  April,  Jeff  gave  no

intention  regarding Jasmine, but stated that he would call  back

on  the following Friday to announce his intentions.  He did  not

call  back and never subsequently expressed his intent to  parent

Jasmine.  In early May he declined the opportunity to speak  with

the  foster  mother  and  participate in a  conference  regarding

Jasmine.   In  November  he  failed  to  participate  in  another

conference  on  Jasmine.  He did not request any visitation  with

Jasmine  until September  roughly eight months after learning  of

her  existence.  In addition, while complying generally with  his

case plan, he failed to complete any of the requirements specific

to  Jasmine, such as learning about her medical needs or spending

time with her to form a bond.  Even when he came to Anchorage  in

January  2003, Jeffs visits with Jasmine were erratic and  short;

he  spoke frequently on his cell phone and appeared to  be  in  a

hurry to leave.

          Most importantly, from when he learned of Jasmine until

trial  a period of over one year  there was no evidence that Jeff

manifested  any desire to the social worker or the foster  mother

to  parent  Jasmine.   We  reject his  position  that  he  needed

photographs  and  additional medical information before  deciding

whether  to  parent Jasmine.  To disregard a parental  obligation

while  trying  to decide whether to undertake that obligation  is

still  a  disregard of a parental obligation.  In light of  these

facts, we conclude that the superior court did not err in finding

abandonment.28

     C.   The  Superior  Court Did Not Err in  Finding  that  the

          State Made Reasonable Efforts To Reunite.

          Jeffs next contention is that the record does not  bear

out the superior courts conclusion that the state made reasonable

efforts (1) to provide appropriate family support services, based

upon  the facts and circumstances of the case, but those  efforts

          were unsuccessful; and (2) to achieve permanency for the child.

Jeff  argues  that the state did not make reasonable  efforts  to

locate  him, the natural father, after Jasmines birth.   He  also

argues  that  once  notified of Jasmines existence,  rather  than

putting  forth reasonable efforts to reunify, the states  actions

demonstrated  its  intent to thwart Jeffs  right  to  parent  his

daughter.

          The termination statute requires the state to prove  by

a  preponderance  of the evidence that it has complied  with  the

provisions of AS 47.10.086 concerning reasonable efforts.29  Those

provisions  require the state to make timely, reasonable  efforts

to  provide  family  support services to the  child  and  to  the

parents  . . . 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 . . . .30  The state is specifically

tasked  to identify and actively offer appropriate family support

services   to   the   parent.31    Additionally,   when    making

determinations  and reasonable efforts under  this  section,  the

primary consideration is the childs best interests.32  Similarly,

with  regard  to  reasonable visitation, the state  is  asked  to

consider the nature and quality of the relationship that  existed

between  the  child and the family member before  the  child  was

committed  to  the custody of the department.33   In  determining

reasonable efforts, we permit the state to consider the amount of

time  available for reunification, considering how long the child

has  been  in  foster  care and whether allowing  more  time  for

reunification would not be in the childs best interests.34

          We  first  consider  Jeffs contention  that  the  state

failed  to  make  reasonable efforts during  the  first  year  of

Jasmines life  that is, in locating Jeff and establishing him  as

the  natural father.  Jeff claims that he did not know about  the

pregnancy  and  that  he first learned of Jasmines  existence  on

January  30, 2002, almost one year after the birth.  During  that

year,  Melanie  and Jimmy stipulated that probable cause  existed

          that Jasmine was a child in need of aid when she was eight days

old and later stipulated that Jasmine was a child in need of aid;

in  addition,  the state had managed case plans for  Melanie  and

Jimmy and had worked toward permanent placement for Jasmine  with

the  foster family.  Throughout this time, the state acted  under

the reasonable assumption that Jimmy was the natural father.  Not

only  had  he been named as the father at birth, but he  accepted

that role and repeatedly participated in the court proceedings as

father.   Once  Jimmy  was  excluded as  the  father,  the  state

obtained  paternity  results from Jeffs  DNA  in  less  than  two

months.   Once Jeffs paternity was established, the state  mailed

him  a summons regarding the case proceedings in about one month.

(The  case worker apparently did not have a phone number  or  any

other  means to communicate with him.)  While there  is  no  such

thing  as too soon for communications of such a critical  nature,

we cannot conclude that these delays before first contact were so

unreasonable as to necessitate a reversal of the termination.35

          More  important to our inquiry are the efforts made  by

the  state  once  Jeffs  paternity was established.   Though  the

states  efforts toward reuniting Jeff with his daughter were  not

exemplary,  neither were they unreasonable.  The  state  notified

him  in  writing  of the permanency hearing in  February.36   The

social worker returned his calls,  gave him information regarding

the  child and the foster parents, mailed him documents  relating

to  the  child,  offered him the opportunity to  speak  with  the

foster mother and participate in an administrative review hearing

on  May 9 (which he declined), gave the foster mother Jeffs phone

number  and  requested  that  she call  him,  gave  Jeff  another

opportunity  to  participate  in  an  administrative  review   in

November  (which  he  also declined), and set  up  an  open-ended

visitation schedule for Jeff with Jasmine during his January 2003

visit  to Anchorage.  In addition, in May 2002 the social  worker

set  up  a  case plan with the concurrent goals of (1)  reuniting

Jeff  as  father of Jasmine; and (2) permanently placing  Jasmine

          with the foster family.

          Despite  these activities, there is also some  evidence

in  the record supporting Jeffs position that the state was  slow

in  contacting or responding to him and that it favored the  goal

of  placing Jasmine with the foster family.  However, the  record

strongly supports the view that Jeff never demonstrated a  desire

to  parent  or  otherwise  be involved in  the  childs  life,  as

discussed in the previous section.  Because the state is asked to

consider the prior relationship between the parent and child, the

temporal urgency of achieving permanent placement, and the childs

best  interests, we conclude that the state, in determining  what

efforts  to reunite parent and child are reasonable, may consider

the  parents actions.  Here, Jeff never remotely committed to the

job of parenting Jasmine.37  In these situations, the law  as well

as common sense  does not dictate the state to force him, against

his   will,   into  accepting  the  job.   In  light   of   these

circumstances, we are satisfied that the states efforts  in  this

case  to reunite Jeff with Jasmine were reasonably calibrated  to

the  interest  in parenting demonstrated by Jeff.   The  superior

courts  conclusion  that  the state made reasonable  efforts  was

therefore not in error.

     D.   The   Superior  Court  Did  Not  Err  in  Finding  that

          Termination Was in the Childs Best Interests.

          Finally,  Jeff contends on appeal that the court  erred

in  finding that the termination was in the childs best interests

because  he  was not responsible for the conditions that  led  to

Jasmines  medical  problems  and CINA  adjudication  and  he  has

followed  his  case  plan and developed a  healthy  lifestyle  in

Pennsylvania.  While parental rights cannot be terminated  solely

on  best  interests   the state must first satisfy  the  test  of

showing  some harmful parental conduct  the statute  states  that

the  court shall consider the best interests of the child  during

the proceedings.38  The superior court concluded that [i]t is  in

Jasmines best interests to terminate parental rights and free her

          for adoption by the [J] family.

          Numerous  factual  findings by the  court  support  its

conclusion  that it is in Jasmines best interests to remain  with

the  foster family.  These findings are supported by the  record.

Jasmine has resided with the family since the second week of  her

life  and has developed strong emotional attachments to them  and

the  court heard testimony underscoring the strength of the  bond

created  in  the earliest years of childhood.  The foster  family

has  been exemplary in the amount of care and affection given  to

Jasmine  throughout  her life, and they now wish  to  adopt  her.

Moreover,  testimony  indicated that Jasmine  continues  to  have

developmental problems demanding substantial care, and that these

problems may well worsen upon a change in lifestyle as severe  as

being  separated from her foster parents.  There is other support

as  well: Melanie (though she has since relinquished her parental

rights) testified that she did not want Jasmine returned to  Jeff

or  his  relatives, casting doubt on his parenting  ability,  and

there  was  little  evidence to demonstrate  that  Jeff  has  the

capacity, experience, or willingness to properly raise the child.39

The  superior courts conclusion that termination was in the  best

interests of Jasmine was therefore not clearly erroneous.

V.   CONCLUSION

          Because Jeffs due process rights were not violated  and

because  the  superior  courts  findings  regarding  abandonment,

reasonable  efforts,  and best interests were  supported  by  the

record,  we  AFFIRM  the  superior courts  termination  of  Jeffs

parental rights.

BRYNER, Chief Justice, concurring.

          I join in the courts judgment and agree with the result

reached  on all of the issues; but I disagree with its  rationale

in deciding the issue of procedural due process.  Specifically, I

disagree  with  the  courts suggestion that Jeffs  right  to  due

process  could be met without adjudicating the states  allegation

that  his  conduct  since  being identified  as  Jasmines  father

amounted  to abandonment and neglect of Jasmine; I would  decline

to  say,  as  the court does, that Jeff did not have an  absolute

right  to  participate in an adjudication hearing on  these  CINA

allegations.1  I find no occasion to decide this difficult  issue

here,  because, in my view, the record shows that the termination

trial gave Jeff a full and fair adjudication hearing on the issue

of  Jasmines  current  CINA status: in deciding  to  sever  Jeffs

parental ties, the superior court necessarily determined that his

conduct  since learning that he was Jasmines father  amounted  to

abandonment and neglect of his daughter and rendered her a  child

in need of aid.

          To   terminate   Jeffs   parental   rights   under   AS

47.10.088(a),  the  state  was required  to  prove,  among  other

things,  that Jasmine had been subjected to conduct or conditions

that  caused her to be a child in need of aid under AS 47.10.011.

Conceivably,  the  state  might  have  attempted  to  meet   this

requirement   by  relying  solely  on  Jasmines   previous   CINA

adjudication,  which resulted from Melanies substance  abuse  and

neglect,  and was entered without notice to Jeff.  But the  state

did   not  take  this  course;  instead,  it  advanced  new  CINA

allegations  as  a  basis  for  terminating  Jeffs  rights.   The

petition  for termination alleged that Jasmine had been subjected

to  conduct  or  conditions making her a child  in  need  of  aid

because  Jeff  had  abandoned and neglected her.2  Because  these

allegations   had  not  been  included  in  the   original   CINA

proceeding,  they could not have been established by reliance  on

the  original  CINA adjudication; the state would have  to  prove

          that Jeff engaged in conduct that met the statutory definition of

abandonment and neglect, and thereby rendered Jasmine a child  in

need of aid.

          The  state  pinpointed its basis  for  advancing  these

claims  well in advance of Jeffs termination trial.   Two  months

before  trial,  the  state filed a detailed  pretrial  memorandum

elaborating  the evidence that it intended to rely  on  to  prove

abandonment and neglect.  The memorandum made it clear  that  the

state would seek to show that Jasmine was a child in need of  aid

because of abandonment and neglect by Jeff that occurred after he

learned  that he was Jasmines father.  In summarizing the  states

theory on this point, the pretrial memorandum stated:

               There  is  clear and convincing evidence
          that  this child was born a child in need  of
          aid,   in   part,  because  of  her   fathers
          incarceration.  After her father knew of  his
          paternity,  and after his release from  jail,
          his  conduct  toward this  child  constitutes
          neglect  as  defined  in  AS  47.10.014   and
          abandonment  as defined in AS 47.10.013(a)(2)
          and (3).
          
          Jeff  unquestionably  understood  that  the  state  was

advancing  these new CINA theories and that the  court  would  be

required to adjudicate the allegations of abandonment and neglect

as  part  of  the  termination  trial.   At  the  outset  of  the

termination  trial,  Jeff  moved  to  dismiss  the  petition  for

termination, arguing that termination would be premature  because

Jasmines  current status as a child in need of aid  had  not  yet

been  adjudicated.  Contending that the court could not terminate

his  parental rights unless the state first proved its  new  CINA

allegations, Jeff asked the court to bifurcate the proceedings so

that  the  CINA  allegations would be adjudicated  first,  to  be

followed by a trial on the issue of termination only if the state

prevailed on the adjudication.

          Jeff also insisted that, in the interim, Jasmine should

be  placed  in  his  custody.  Noting that  he  had  not  had  an

opportunity   to   participate  in   the   earlier   adjudication

proceeding,  Jeff reasoned that the state lacked jurisdiction  to

keep  Jasmine in its custody pending the new adjudication hearing

unless  it could show probable cause that she continued to  be  a

child  in need of aid despite Jeffs availability to serve as  her

father.  Since the state had no evidence to show probable  cause,

Jeff  claimed,  it  lacked  jurisdiction  to  retain  custody  of

Jasmine.3

          The  state opposed Jeffs last-minute motion to dismiss.

Addressing Jeffs jurisdictional argument first, the state pointed

out that the initial CINA adjudication validly placed Jasmine  in

state  custody  despite  Jeffs lack of participation,  since  the

adjudication  was  entered before his paternity was  established.

And  because  the  custody order remained in  effect,  the  state

argued,  no  showing of probable cause was required, and  Jasmine

could  properly  remain in state custody  pending  trial  on  its

petition for termination.

          As  to  Jeffs demand to bifurcate the adjudication  and

termination   proceedings,  the  state  insisted  that   separate

hearings  were  not required by applicable law:  AS  47.10.088(g)

expressly authorizes the state to include new CINA allegations in

a  petition  for  termination;4 and CINA Rule 18(b)  specifically

gives   the   superior  court  discretion  to   consolidate   the

adjudication  of  these new allegations with  the  trial  on  the

states petition for termination.5  Relying on these provisions as

well  as on existing case law,6 the state contended that the  new

CINA  allegations pertaining to Jeff could be adjudicated in  the

context of his trial on the petition for termination.

          By  the  time the state filed its opposition  to  Jeffs

motion to dismiss, the termination trial was already in progress;

the  superior  court denied Jeffs motion summarily and  proceeded

with  the  trial.   In conducting the trial, the  superior  court

implicitly recognized that the case presented mixed questions  of

adjudication and termination.  In response to a motion  by  Jeff,

the court indicated that it intended to enforce the provisions of

          CINA Rule 18(f) when ruling on the admissibility of hearsay

evidence.  Rule 18(f) adopts a two-tiered standard for hearsay in

termination  trials:  the  rule allows  reliable  hearsay  to  be

admitted  for most purposes, but it requires compliance with  the

formal hearsay exceptions set out in the Alaska Rules of Evidence

when   hearsay  is  offered  to  prove  an  issue   relating   to

adjudication.7    By  invoking  Rule  18(f),  then,   the   court

unmistakably  demonstrated its belief that Jeffs trial  presented

consolidated issues involving both adjudication and termination.

          After  completing the termination trial,  the  superior

court issued a seventeen-page decision terminating Jeffs parental

rights.   Much,  if  not  most, of its decision  was  devoted  to

findings  describing  pretrial  conduct  by  Jeff  amounting   to

abandonment and neglect.

          On appeal, Jeff argues that his right to procedural due

process was violated by these proceedings because he could not be

legally  bound  by the prior CINA adjudication order,  which  was

entered  without his participation, and because he was not  given

an opportunity to be heard on the issue of whether Jasmine should

be  adjudicated  as a child in need of aid at  the  time  of  the

trial.

          This  due process claim can be seen as raising  several

discrete issues.  To the extent that it simply asserts the  right

to have a bifurcated proceeding  to have the new CINA allegations

and  the  termination issues determined one after the  other,  so

that   the   questions  of  neglect  and  abandonment  could   be

adjudicated first, todays opinion correctly recognizes that Jeffs

argument  lacks legal basis.  The Alaska Statutes  and  our  CINA

Rules   expressly  allowed  the  superior  court  to  conduct   a

consolidated  hearing encompassing the new CINA  allegations,  as

well as the petitions other allegations relating specifically  to

termination.

          Similarly, Jeffs argument lacks legal merit insofar  as

it  suggests that he received inadequate notice of the  new  CINA

          allegations.  The petition for termination and the states

pretrial  memorandum unequivocally spelled out the states  intent

to  prove  that  Jasmine was a child in need of  aid  because  of

abandonment  and neglect by Jeff occurring after he learned  that

he  was  her  father.   And  as already  mentioned,   the  record

confirms  that Jeff understood these new allegations  and  had  a

full  opportunity to defend against them during  the  termination

trial.

          Finally,  to the extent that Jeff seeks to  claim  that

the  superior court based its termination order on the prior CINA

adjudication,  instead  of grounding it  on  new  allegations  of

abandonment and neglect, Jeffs claim simply has no factual basis.

When  viewed as a whole, the petition for termination, the states

pretrial  memorandum,  the evidence at trial,  and  the  superior

courts   written   decision  convincingly  establish   that   the

termination  of Jeffs parental rights had little to do  with  the

conduct  by  Melanie  addressed in the prior  CINA  adjudication.

Jeffs  rights were terminated because he abandoned and  neglected

Jasmine  after  being  identified as her biological  father,  and

because the superior court found as a result of this conduct that

placing  Jasmine with Jeff would expose her to serious  emotional

harm.

          The  superior courts findings effectively  covered  all

elements needed to adjudicate Jasmine as a child in need  of  aid

because  of  abandonment  and neglect by  Jeff.   In  fact,  they

necessarily  included  all  the  required  elements  of  a   CINA

adjudication:  given CINA provisions cited in  the  petition  for

termination  and  the  evidence outlined in the  states  pretrial

memorandum,  the  court  could  not  have  found  a   basis   for

terminating Jeffs parental rights under AS 47.10.088 without also

specifically finding  by a standard of proof more stringent  than

the  one  required  for  adjudication  that  Jeff  neglected  and

abandoned Jasmine after he knew that he was her father,  that  he

refused to alter this conduct, and thus prevented her from  being

placed in his custody without risking serious harm.

          In  short,  the petition for termination  and  pretrial
memorandum gave Jeff clear notice that all necessary elements for
a  CINA  adjudication would be tried; the parties fully addressed
these  elements  at  trial; and the superior  courts  termination
decision  squarely adjudicated them.  It would  exalt  form  over
substance to suggest that the superior courts failure to formally
label  its ruling a CINA adjudication disqualifies it from  being
recognized for what, in substance, it actually is: a consolidated
decision  incorporating  a CINA adjudication  and  a  termination
order.  Because this interpretation disposes of Jeffs due process
claim without relying on the prior adjudication, I see no need to
guess whether or when a termination might properly be based on  a
prior  CINA adjudication handed down without notice to the parent
whose  rights  the state seeks to sever.  The courts  speculative
discussion  of this point strays beyond the facts of Jeffs  case,
needlessly stretches the law, and, in my view, is sure to  invite
confusion and error in future CINA proceedings.
_______________________________
     1     Pseudonyms have been used to protect the  identity  of
family members.

     2     The  state  suggests that it is standard procedure  to
exclude the first-named father before testing others.

     3     These daughters were CINA-adjudicated in 1997  due  to
reoccurring  violence  between their parents.   With  respect  to
these daughters, Jeff has maintained his residual parental rights
and  apparently  keeps in regular contact  with  them  and  their
therapists.

     4     Jeff has two daughters by another woman; each girl has
been adjudicated as child-in-need-of-aid.

     5     Melanie later completed an affidavit stating that  she
does  not  want  Jasmine to be placed with Jeff  or  any  of  his
relatives.

     6    The social worker mailed this information in September,
but Jeff claims he never received this package.  Jeff received  a
second   package  in  December.   Because  he  was   working   in
Indianapolis at the time, and subsequently traveled to Alaska, he
did not actually view the packet until February 2003.

     7     D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000) (citations omitted).

     8    Id.

     9     Id.  (quoting  Guin  v. Ha, 591 P.2d  1281,  1284  n.6
(Alaska 1979)).

     10    Id. at 207-08.

     11    Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002).

     12    Jimmy was named father and agreed with this designation
at  birth,  participated  with an attorney  in  subsequent  court
hearings,  and  had not yet been excluded as the  father  by  the
results of his DNA paternity test.

     13    See CINA Rule 18(b); D.M., 995 P.2d at 208.

     14    AS 47.10.088(d).

     15    A.H. v. State, 779 P.2d 1229, 1232 (Alaska 1989).

     16     Once  a child is CINA-adjudicated, the state  follows
general  time lines during which it will attempt to  reunite  the
family  or, if that process fails, move to terminate the  parents
rights.  See AS 47.10.080.  The termination hearing in this  case
followed  these  time  lines; for example, the  state  filed  the
termination petition against both parents within the deadline set
by the courts final permanency hearing.

     17      See,  e.g.,  AS  47.10.088(a)(1)(B)  (providing  for
termination if the parent . . . has not remedied the  conduct  or
conditions  in the home that place the child at substantial  risk
of harm . . . .).

     18    AS 47.10.088(a)(1)(A).

     19    CINA Rule 18(c); AS 47.10.088(a).

     20     The 1999 amendments to the CINA rules make this point
clear.   The  pre-amendment termination rule required  clear  and
convincing  evidence that the parental conduct  that  caused  the
minor  to  be  adjudicated a child in need of aid  is  likely  to
continue unless parental rights are terminated.  Former CINA Rule
18(c),  as  later amended by SCO 1355, effective July  15,  1999.
This language seems to require the termination to be grounded  on
the  same  harmful  conditions that  brought  about  the  initial
adjudication.  The current language, on the other hand, allows  a
termination to be based upon any harmful CINA condition, not just
the one that formed the basis for the adjudication.

     21    We also note that because Jeff enjoyed a full trial in
which  to  contest  the  states allegations  of  abandonment  and
neglect, he has failed to show prejudice in being denied a  prior
adjudication.   We  have  said  that  nothing  resolved  at   the
adjudication  stage foreclose[s] a parent from  fully  litigating
all  relevant  issues at the termination stage.  D.M.  v.  State,
Div.  of Family & Youth Servs., 995 P.2d 205, 209 (Alaska  2000).
Moreover, the court found that Jeffs abandonment and neglect were
ongoing  and  unremedied, and these findings were  made  under  a
higher quantum of proof than what would have been required in  an
adjudication hearing.  Compare AS 47.10.088 (clear and convincing
evidence for termination) with AS 47.10.011 (preponderance of the
evidence for adjudication).

     22    AS 47.10.088(a).

     23    AS 47.10.013(a).

     24     G.C. v. State, Dept of Health & Soc. Servs., 67  P.3d
648, 651 (Alaska 2003) (quotation omitted).

     25    Id. at 652 (citations and quotations omitted).

     26    AS 47.10.013(a)(2)-(3).

     27    In the Matter of H.C., 956 P.2d 477, 481 (Alaska 1998)
(quoting E.J.S. v. State, 754 P.2d 749, 751 (Alaska 1988)).

     28     Because  we find that the superior courts finding  of
abandonment was supported by the record, we need not consider the
courts additional finding regarding neglect.

     29    AS 47.10.088(a)(2).

     30    AS 47.10.086(a).

     31    Id. at (a)(1)-(2).

     32    Id. at (f) (emphasis added).

     33    AS 47.10.080(p).

     34     G.C. v. State, Dept of Health & Soc. Servs., 67  P.3d
648, 653 & n.23 (Alaska 2003).

     35     We also note that Jeffs absence during Jasmines first
year  is  not  the  fault of the state.  Jeff knew  that  he  had
engaged  in  sexual  relations with Melanie.  Jeff  violated  his
parole,  which  led  to  his incarceration during  a  significant
portion of Melanies pregnancy.  Finally, Jeff took no steps while
in  prison  or  after  his release to determine  whether  he  had
fathered a child, despite being told by Melanie that she  thought
she was pregnant.

     36     Jeff did not respond to this notice or appear at  the
hearing.   At  that  hearing, with only the mother  present,  the
court  ordered  the  state  to file a  petition  for  termination
against  both parents by March 13.  The state complied with  this
order.    By  attending  this  hearing  (either  at  the  initial
scheduled  time  or  through  a postponement),  Jeff  could  have
quickly  asserted an interest in parenting the child and  changed
the course of the proceedings.

     37     Indeed,  eleven  months after  learning  of  Jasmines
existence, he sent no Christmas present or greeting to  her.   At
his  first-ever  visits  with her the  following  month,  he  was
distracted and inattentive.

     38    AS 47.10.088(c).

     39     For  example, while complying with the case  plan  in
other respects, he failed to complete those requirements specific
to Jasmine  such as familiarizing himself with her or her medical
needs.   The  evidence also shows a continual anger problem.   In
addition,  his parenting plans center upon asking his  sister  (a
Las  Vegas  resident) to come to Pennsylvania to help parent  the
child.

1    Slip Op. at 11-12.

     2    See AS 47.10.011(1).

3      Jeff   separately   argued  that  if   the   court   found
sufficient evidence to prove Jasmines present status as  a  child
in  need  of  aid, it should dismiss the petition in  any  event,
because the state lacked sufficient evidence to establish that it
had made reasonable efforts to reunify Jasmine with Jeff.

     4    AS 47.10.088(g) provides:

               This  section  does  not  preclude   the
          department   from  filing   a   petition   to
          terminate    the    parental    rights    and
          responsibilities  to  a   child   for   other
          reasons,  or  at an earlier time  than  those
          specified  in  (d) of this  section,  if  the
          department determines that filing a  petition
          is in the best interests of the child.
          
     5    CINA Rule 18(b) provides:

               Purpose   of  Hearing.  The  termination
          hearing is a disposition hearing to the court
          on  the  question  of  whether  the  parental
          rights to an adjudicated child in need of aid
          should be terminated.  Upon a showing of good
          cause   and  with  adequate  notice  to   the
          parties,  an  adjudication  hearing   and   a
          termination hearing may be consolidated.
          
          Alaska  Rule  of  Civil Procedure 42(a) grants  similar
authority to the superior court in more general terms:

               Consolidation.  When actions involving a
          common  question of law or fact  are  pending
          before  the  court,  it  may  order  a  joint
          hearing or trial of any or all the matters in
          issue  in the actions; it may order  all  the
          actions  consolidated; and it may  make  such
          orders concerning proceedings therein as  may
          tend to avoid unnecessary costs or delay.
          
               A  motion requesting consolidation shall
          be  filed  in  the court where  the  case  is
          sought to be consolidated.  The motion  shall
          contain the name of every case sought  to  be
          consolidated.   A  notice of filing  together
          with  a copy of the motion shall be filed  in
          all  courts  and  served on all  parties  who
          would be affected by consolidation.
          
     6     Specifically, the state claimed support by analogy  in
two prior cases: P.M. v. State, Dept of Health & Soc. Servs.,  42
P.3d 1127 (Alaska 2002), and T.F. v. State, Dept of Health & Soc.
Servs., 26 P.3d 1089 (Alaska 2001).

7     Under  CINA  Rule  9, the Alaska Rules  of  Evidence  apply
to  CINA proceedings unless otherwise provided in the CINA Rules.
CINA Rule 15, which governs CINA adjudication hearings, makes  no
other  provision.   But CINA Rule 18, which  governs  termination
trials, sets forth an exception in subsection 18(f):

               Evidence. Hearsay that is not admissible
          under  a  recognized exception to the hearsay
          rule  is  not  admissible at  a  trial  on  a
          petition  to  terminate  parental  rights  to
          prove  that  the child has been subjected  to
          conduct   or  conditions  described   in   AS
          47.10.011.   Otherwise,   hearsay   may    be
          admissible at the trial if it is probative of
          a    material    fact,   has   circumstantial
          guarantees   of  trustworthiness,   and   the
          appearing   parties   are   given   a    fair
          opportunity to meet it.