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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Debbie G./Charles F. v. State of Alaska, DHSS (04/07/2006) sp-6000
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
| DEBBIE G., | ) |
| ) Supreme Court No. S- 11778 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-03-00084 PR | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) No. 6000 - April 7, 2006 |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
)
CHARLES F., )
) Supreme Court No. S-11782
Appellant, )
) Superior Court No. 4FA-03-
00084 PR
v. )
)
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL )
SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje Steinkruger, Judge.
Appearances: Kathleen Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant Debbie G.
Paul Ewers, Law Office of Paul Ewers,
Fairbanks, for Appellant Charles F. Megan R.
Webb, Assistant Attorney General, Anchorage,
and David W. M rquez, Attorney General,
Juneau, for Appellee State of Alaska,
Department of Health and Social Services,
Office of Childrens Services. Julie L. Webb
and Mark Andrews, Fairbanks, for Appellee
Native Village of Nulato.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Parents who are admittedly unable to care for their son
argue that he is not in need of aid because there is a relative
willing to care for him. The superior court, finding that the
parents designation of someone else to care for their child did
not remedy their conduct that had placed the child at risk,
terminated their parental rights. Because the parents plan
provides neither permanency nor assurance that they would not try
to regain physical custody if they were to retain parental
rights, and because the applicable statute, AS 47.10.088, only
permits return of children to their parents and not to other
relatives, we affirm.
II. FACTS AND PROCEEDINGS
John G. was born two months prematurely, on April 8,
2003.1 He is classified as a special needs child. Both of Johns
biological parents have a history of substance abuse, mental
problems, and criminal activity. The parents, Debbie G. and
Charles F., acknowledge that they are either unwilling or unable
to care for John. Debbie and Charles are not married to each
other and reside together off and on.
When John was six weeks old and still in the hospital,
the Office of Childrens Services (OCS) took emergency custody.
The next day Debbie signed papers relinquishing her parental
rights, but she changed her mind a few days later. When John was
released from the hospital he was placed in foster care with the
Smith family, because the Smiths had adopted Johns half-brother.
Debbie had suggested that the Smiths take custody of John when he
was released from the hospital. In June 2003 Charles was
identified as Johns father. At an adjudication hearing in August
Charles stipulated that he was unable to care for John and agreed
to the state taking temporary custody.
Debbie has declared that she cannot raise John and
since August 2003 has confirmed that she wants relatives to care
for the child. Both parents have now agreed that they want
Charless sister, Aunt Eva, to raise John. At times Charles
appears to have been against actual adoption by Aunt Eva.
Sometimes Charles spoke of having John placed with a relative
only temporarily, perhaps until the child was eight or ten years
old.
Johns paternal grandmother has also been considered as
a possible caretaker for John. In fall or early winter of 2003,
when John was about six months old, she requested that John be
transferred to her custody while the home study on Aunt Eva was
pending.
In April 2004 OCS sought termination of parental rights
based on the parents continued lack of ability or desire to raise
John. By September OCS had considered three adoption options for
John: Johns Aunt Eva, Johns paternal grandmother, and the Smith
family; it determined that the Smith family was the best
permanent placement.
Following a September trial on the states petition for
termination of parental rights, the superior court issued a
ruling terminating the parental rights of both parents. It found
that the parents had abandoned John and that their use of alcohol
to excess, cocaine and fights make it physically dangerous for
[John], a special needs child, to be in their care. The superior
court ruled that [t]he parents have not, within a reasonable
time, remedied the conditions in their home that place [John] at
substantial risk of harm or risk of physical or mental injury.
Both parents appeal.
III. DISCUSSION
A. Standard of Review
In a child in need of aid (CINA) proceeding
[w]e apply the clearly erroneous standard
when reviewing the superior courts factual
findings. Factual findings are clearly
erroneous when we are convinced, upon review
of the entire record, that a mistake has been
made. Whether the superior courts factual
findings satisfy applicable CINA rules is a
question of law subject to de novo review.[2]
We apply our independent judgment when reviewing a lower courts
interpretation of statutes and other related legal questions.3
B. Parents Who Place the Child at Risk of Harm Do Not
Remedy the Conduct or Condition by Designating a
Relative To Raise the Child.
Debbie G. and Charles F. argue that they remedied the
conduct or conditions that risked harm to their son by
designating a relative to care for him, and therefore satisfied
AS 47.10.088(a)(1)(B).
Alaska Statute 47.10.088 provides in pertinent part:
(a) Except as provided in AS 47.10.080(o),
the rights and responsibilities of the parent
regarding the child may be terminated for
purposes of freeing a child for adoption or
other permanent placement if the court
finds(1) by clear and convincing evidence
that(A) the child has been subjected to
conduct or conditions described in AS
47.10.011; and(B) the parent(i) has not
remedied the conduct or conditions in the
home that place the child at substantial risk
of harm; or(ii) has failed, within a
reasonable time, to remedy the conduct or
conditions in the home that place the child
in substantial risk so that returning the
child to the parent would place the child at
substantial risk of physical or mental injury
. . . .
John has been subjected to conditions described in AS
47.10.011 (including the mothers admitted substance abuse), thus
satisfying AS 47.10.088(a)(1)(A).4 Debbie and Charles admit they
are unable to care for John. The only question they raise on
appeal is whether under AS 47.10.088(a)(1)(B) the parents
remedied . . . conditions in the home that had threatened Johns
safety.
The parents argue that if John were returned to their
care he would be cared for by a relative, and that consequently
they would present no danger to him. They argue that sending the
child to a relative would remedy the conduct and conditions in
the home that place the child at substantial risk, not by
changing the conduct and conditions which had previously placed
the child at risk, but by changing the childs residence so that
the ongoing dangerous conduct or conditions would no longer pose
a risk to the child.
We acknowledge that in some circumstances the parents
reading of AS 47.10.088(a)(1)(B) would not be implausible, and
moreover, that in some circumstances sending a child to live with
relatives would be an appropriate and responsible way to
eliminate a risk of harm to a child. Given the facts of this
case, however, AS 47.10.088(a)(1)(B)(ii) permits termination of
parental rights.
It is important that AS 47.10.088(a) declares that the
rights and responsibilities of the parent regarding the child may
be terminated for purposes of freeing a child for adoption or
other permanent placement. (Emphasis added.) The statute
emphasizes permanent placement of children. This is so because
moving children from family to family can be disruptive and
unhealthy for children.5 The emphasis on permanency in
subsection (a) informs our reading of the rest of AS 47.10.088.
Alaska Statute 47.10.088(a)(1)(B) only contemplates
returning the child to the parent, not to other relatives, once
the child is in state custody. In light of the permanency
requirement that underlies all of AS 47.10.088, the statute
implies that a parents remedial efforts satisfy the statue only
if they remedy the risk posed by returning the child to the
parent. Allowing parents who are admittedly unfit to raise a
child to simply designate others to raise the child for them
would not ensure a permanent placement. Such parents would be
legally entitled to demand physical custody from the relative at
any time, perhaps after only a few weeks or months.6 If that
happened, either CINA proceedings would again be needed, or the
state would have to permanently monitor the parents conduct. The
statute is intended to avoid such ongoing efforts and impermanent
placements.
We therefore read AS 47.10.088 to require that parents
remedy their conduct that would place the child at risk if the
child were returned to their custody, even if this conduct would
not present an immediate threat while the child resided with
relatives. The superior court found that the parents use of
alcohol to excess, cocaine and fights make it physically
dangerous for [John], a special needs child, to be in their care.
The superior court went on to conclude that, given the parents
history of violence and substance abuse, John would likely suffer
harm within hours of being in their care. Short of terminating
their parental rights, there is no way to ensure that the parents
conduct would not threaten the child. We therefore hold that if
parents have not remedied the conduct that poses an active threat
to a childs safety, merely designating a relative as primary
caretaker does not remedy the conduct and therefore does not
satisfy AS 47.10.088(a)(1)(B)(ii).
C. Johns Parents Have No Right To Direct His Adoption.
Charles also argues that the state should have
permitted the parents to designate who would adopt John. He
cites AS 47.10.084(c), which provides in pertinent part:
When there has been transfer of legal custody
or appointment of a guardian and parental
rights have not been terminated by court
decree, the parents shall have residual
rights and responsibilities. These residual
rights and responsibilities of the parent
include, but are not limited to, the right
and responsibility of reasonable visitation,
consent to adoption, consent to marriage,
consent to military enlistment, consent to
major medical treatment . . . .
We have previously noted that [a]fter parental rights
have been fully terminated, the former parent has no residual
rights at all.7 The issue before us is therefore whether, after
custody was transferred but before the parental rights were
terminated, the state should have followed the parents adoption
preference. Alaska Statute 47.10.084(c), however, only allows
parents who retain parental rights to veto adoption; it does not
confer any new rights on parents. It lists residual rights that
are not lost with transfer of legal custody.8 These rights are
conferred in AS 25.23.040, which provides:
Unless consent is not required under AS
25.23.050, a petition to adopt a minor may be
granted only if written consent to a
particular adoption has been executed by(1) the mother of the
minor; [and](2) the father of the minor . . . .
This section confers only a negative right. The child
cannot normally be adopted without the consent of the parents,
but this section does not give parents any affirmative legal
right to require the state to permit a particular adoption.
Charles cites no precedent supporting a different reading of AS
47.10.084(c). Our explanation in a previous case of the reasons
for the consent provision confirms the absence of an affirmative
right. In Delgado v. Fawcett we characterized the parents right
to consent to adoption as the right to peremptorily veto the
adoption of his child9 and noted that the consent provisions are
designed to protect the natural rights of a parent to the
custody, society, comfort, and services of the child.10 Parents
whose parental rights are being terminated therefore have no
affirmative right to have their child adopted by a person of
their choosing.
IV. CONCLUSION
Because Debbie and Charless designation of a relative
as caregiver for John did not remedy the risk of harm they pose
to John, and because parents have no affirmative right to decide
who will adopt their children, we AFFIRM the ruling of the
superior court.
_______________________________
1 We use pseudonyms for all individuals in this case.
2 Erica A. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 66 P.3d 1, 6 (Alaska 2003).
3 Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004).
4 AS 47.10.011 provides in relevant part:
Subject to AS 47.10.019, the court may find a
child to be a child in need of aid if it
finds by a preponderance of the evidence that
the child has been subjected to any of the
following:
(1) a parent or guardian has abandoned the
child as described in AS 47.10.013, and the
other parent is absent or has committed
conduct or created conditions that cause the
child to be a child in need of aid under this
chapter; . . .
. . . .
(6) the child has suffered substantial
physical harm, or there is a substantial risk
that the child will suffer substantial
physical harm, as a result of conduct by or
conditions created by the childs parent,
guardian, or custodian . . .
. . . .
(10) the parent, guardian, or custodians
ability to parent has been substantially
impaired by the addictive or habitual use of
an intoxicant . . .
(11) the parent, guardian, or custodian has a
mental illness, serious emotional
disturbance, or mental deficiency of a nature
and duration that places the child at
substantial risk of physical harm or mental
injury . . . .
5 We have often noted that young children require
permanency and stability or risk long-term harm. See, e.g.,
Stanley B. v. State, Div. of Family & Youth Servs., 93 P.3d 403,
408 (Alaska 2004) (holding that temporary placement, until [the
father] is released from prison, would not satisfy the childrens
immediate need for permanency and stability).
6 We have held that parental rights include [p]hysical
possession of the child which, in the case of a custodial parent
includes the day-to-day care and companionship of the child.
L.A.M. v. State, 547 P.2d 827, 833 n.13 (Alaska 1976).
7 C.W. v. State, 23 P.3d 52, 57 (Alaska 2001) (holding
that parents had no right to visitation after termination of
parental rights).
8 See AS 47.10.084(c).
9 Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973).
10 Id. (quoting In re Parks Petition, 127 N.W.2d 548, 553
(Minn. 1964)).
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