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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Samuel H v. State, Office of Children's Services (02/08/2008) sp-6229

Samuel H v. State, Office of Children's Services (02/08/2008) sp-6229, 175 P3d 1269

     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

SAMUEL H. )
) Supreme Court No. S- 12610
Appellant, )
) Superior Court No.
v. ) 3AN-04-00314 CN
)
STATE OF ALASKA, OFFICE )
OF CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6229 - February 8, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances: G. Blair McCune, Anchorage,  for
          Appellant.    Michael   Hotchkin,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          A   father,   Samuel,  appeals  the   superior   courts
termination of his parental rights to his daughter Georgia.1  The
Office  of Childrens Services (OCS) started Child in Need of  Aid
(CINA)  proceedings  shortly  after  Georgia  was  born  cocaine-
positive.    OCS  placed  Georgia  with  Loretta,  her   maternal
grandmother.   Georgias mother, Sylvia, subsequently relinquished
her  parental  rights.  Except for a period of thirty-five  days,
Samuel  has been incarcerated since Georgia was born, but he  was
in  contact with Sylvia and both maternal grandparents concerning
          the birth and arrangements for the childs care.  OCS successfully
petitioned the superior court to terminate Samuels rights so that
Loretta  could  permanently adopt Georgia.   Samuel  appeals  the
superior  courts termination order, arguing that the court  erred
in:  (1)  finding that he failed to make adequate provisions  for
Georgia   during   his  incarceration,  and  (2)   holding   that
termination  of  Samuels parental rights  was  in  Georgias  best
interest.  Because the superior court did not make findings  that
are  sufficiently specific to support the conclusion that  Samuel
failed  to  make  arrangements for his daughters  care  upon  her
birth,  we vacate the termination of his parental rights  and  we
remand to the superior court for further findings.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Sylvia  gave  birth to Georgia on September  21,  2004.
When  Georgia  was born, Samuel was serving time  in  prison  for
domestic  violence  assault.  Because Georgia was  born  cocaine-
positive,  OCS became involved.  Samuel testified  that  he  knew
that  OCS  was likely to take custody of Georgia upon her  birth.
Accordingly,  he  and  Loretta,  Georgias  maternal  grandmother,
arranged  that Loretta would care for Georgia because Sylvia  was
unable  to  care for Georgia and Samuel was in prison.   Although
Georgia  was not immediately removed from Sylvias care,   Loretta
cared for the baby as Sylvia was living with her at the time.
          OCS  developed a case plan for Sylvia, who admitted  to
using  drugs both during and after her pregnancy.  Sylvia  failed
to  comply with any aspect of the case plan, including the random
urinalysis (UA) tests.
          Upon discovering that Sylvia had left Lorettas home and
taken  Georgia with her for several days, and that she  continued
to  use  drugs, OCS petitioned for removal and placed Georgia  in
Lorettas  care.  OCS did not consult Samuel about this placement.
OCS  also  considered Samuels mother for Georgias placement,  but
ultimately decided to place the baby with Loretta so that Sylvia,
who  also lived with Loretta, would have an opportunity  to  bond
with  Georgia.  OCS testified that it also decided to  place  the
child  with Loretta, instead of Samuels mother, because paternity
had  not  yet been officially established.  Samuel, who testified
that  he  had been on the telephone during Georgias birth,  never
contested  paternity and was officially identified as the  father
in June 2005.
          While  Samuel was in prison, Sylvia brought Georgia  to
visit  him  several times.  Shortly after Georgias birth,  Samuel
was  released from prison.  He remained out of jail  for  thirty-
five  days.   During this time, Georgia continued  to  live  with
Loretta. Samuel visited Georgia and bought supplies for her care.
Samuel  estimates  that he spent about $350 to  $400  on  Georgia
during his time out of prison.
          In  October  2005 Samuel was indicted on  federal  drug
charges.  Before Samuel was transferred to federal prison outside
of  Alaska,  Loretta  brought  Georgia  to  visit  him  on  three
occasions.    Samuel  pled  guilty  to  one  count   of   cocaine
distribution.  The federal court sentenced Samuel to  108  months
(nine  years).  Under that sentence, Samuel would not be released
until 2014.  According to Samuel, his new projected release  date
is  December 2012.  Samuel testified that he most likely will  be
released eighteen months earlier than the projected release  date
due  to  participation in a drug treatment program prescribed  by
the  judge  in  his criminal case.  By Samuels earliest  possible
release date, summer 2011, Georgia will be six years old.
          While Samuel was in prison, OCS formulated a case  plan
for  Georgias care.  The plan directed Samuel to comply with  any
legal requirements, [Department of Corrections] requirements,  or
federal  requirements regarding his criminal case.   Samuel  thus
far  has been compliant with this case plan.  OCSs social  worker
testified  that  if  and when hes released, [OCS  will]  probably
develop  a  new  case  plan  which will  state  he  will  do  the
assessment,   substance  abuse,  parenting,   domestic   violence
classes,  and so forth.  While incarcerated, Samuel has  complied
with the departments order that he pay fifty dollars per month in
child support.
          Before  the  termination  trial,  Sylvia  continued  to
suffer  with substance abuse issues.  She spent time  in  a  drug
detox center and a drug addiction treatment center.  She left the
drug  treatment center against treatment advice after three days.
Sylvia  subsequently relinquished her parental  rights  in  April
2006.  The court legally terminated Sylvias rights to Georgia  in
April 2007.
          Although  Samuel  refused  to relinquish  his  parental
rights  as Sylvia had, Samuel supported OCSs placement of Georgia
with  her  grandmother Loretta and approved of Lorettas  proposed
adoption  of Georgia.  OCS also endorses adoption by Loretta  and
reported  that the placement is appropriate and meets the  childs
best interests.
     B.   Proceedings
          OCS  first became involved in Georgias case in  October
2004  when  it  filed an Emergency Petition for  Adjudication  of
Child in Need of Aid and for Temporary Placement.  In August 2005
the court held a hearing in the CINA case.  Sylvia did not attend
the  hearing  and  her whereabouts were not known  at  the  time.
Samuel  participated telephonically from prison.   Samuel  argued
that the CINA proceedings and OCSs involvement were not necessary
because   Georgia  was  already  placed  with  a  relative   whos
appropriate and willing to care.
          The court found that Georgia was a child in need of aid
because  (1)  she  was  abandoned  by  Sylvia,  (2)  Samuel   was
incarcerated  and  failed  to provide adequate  arrangements  for
Georgia  while  he was away, (3) Sylvia and Samuel  neglected  to
provide  adequate  support for Georgia, and  (4)  Sylvia  exposed
[Georgia]  to  a substantial risk of harm by the drug  use.   The
court  further held that OCS made reasonable efforts  to  prevent
the  removal  of  Georgia  from  her  home.   The  court  granted
temporary custody of Georgia to OCS.
          Following   the  CINA  hearing,  the  state   initiated
proceedings  to  terminate  Samuels parental  rights.   Trial  in
Samuels  case took place in May 2006. (No termination for  Sylvia
was  necessary  as  she  voluntarily  relinquished  her  parental
rights.) The court heard testimony from two witnesses, Samuel and
OCSs  social worker.  In her closing remarks, counsel for  Samuel
argued that OCS had not made reasonable efforts to keep the child
with  her  family  and therefore the state  failed  to  meet  its
burden.   The court, troubled that OCS had not earlier  sought  a
ruling  relieving the department from making reasonable  efforts,
asked both parties to brief whether OCS was required to make such
efforts under the statute.  After reviewing the briefing of  each
party,  the court ruled that OCS had not made reasonable efforts,
but  that  reasonable efforts were not required pursuant  to  the
termination statute, AS 47.10.086(c)(10).
          Trial resumed following the courts ruling.  The parties
each  presented  further  argument,  but  did  not  present   new
evidence.   The  court orally found that it was in Georgias  best
interest  for Samuels parental rights to be terminated  based  in
part  upon the fact that she is entitled to permanency  and  also
based  upon  the  fact  that adoption  cannot  go  forward  until
[Samuel]s  rights are terminated.  The court followed up  with  a
written order in January 2007.  Samuel appeals the termination of
his parental rights.
III. STANDARD OF REVIEW
          In  a CINA case, we will affirm factual findings of the
superior  court  so long as they are not clearly erroneous.2   We
will  find  that a holding is clearly erroneous if our review  of
the  entire  record leaves us with a definite and firm conviction
that  the  superior court made a mistake.  Whether  the  superior
court's  factual  findings comport with the requirements  of  the
CINA statutes is a question of law that we review de novo.3
IV.  DISCUSSION
          The  court terminated Samuels parental rights  pursuant
to AS 47.10.080(c) and AS 47.10.088.  Alaska Statute 47.10.080(c)
provides that upon a finding that a child is in need of aid,  the
court  may  terminate  the parents rights  and  order  the  child
committed to OCS.  Alaska Statute 47.10.088 prescribes the method
for terminating an incarcerated parents rights.
     A.   In the Absence of Specific Findings that Samuel Was Not
          Credible  or  that His Testimony that He  Arranged  for
          Sylvias Care Was Not Reliable, It Was Error To Conclude
          that  Samuel  Failed  To Make Adequate  Provisions  for
          Georgia During His Incarceration.
          Alaska  Statute 47.10.088(a) allows for the termination
of  a parents rights if (1) the child has been subject to one  of
the  conditions laid out in AS 47.10.011, (2) the parent has  not
remedied  the conditions that placed the child in harm,  and  (3)
the  state  has made reasonable efforts pursuant to AS 47.10.086.
Samuel  does  not  appeal and, therefore, waives  the  reasonable
efforts  issue.   He  only appeals whether  the  court  erred  in
finding that Georgia was subjected to a condition that caused her
to be a child in need of aid.4
          Alaska  Statute  47.10.011(2)  provides  a  basis   for
termination  if 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.  Samuel does not contest the
          first two conditions of AS 47.10.011(2); he concedes that he is
currently incarcerated and that Sylvia is an absent parent.
          Samuel  argues that the superior court erred in finding
that  he failed to make adequate provisions for care of the child
during the period of incarceration that will be during the childs
minority.   He points to three facts that he purports demonstrate
how  he  made  adequate provisions for Georgia.  Samuel  contends
that his regular payment of child support, his provision of goods
for  Georgia during the thirty-five days of her life that he  was
not  incarcerated,  and his approval of her  placement  with  her
maternal grandmother collectively constitute adequate provisions.
The  state  argues that these actions do not amount  to  adequate
arrangements.
          Only  two  published Alaska cases parse the meaning  of
adequate  arrangements: Stanley B. v. State5 and T.F.  v.  State,
Department  of  Health & Social Services.6  In  Stanley  B.,  OCS
moved  to  terminate  parental rights under  AS  47.10.080(c),  a
statute  that  allows  for termination of an incarcerated  parent
under  the same grounds as AS 47.10.088 but does not require  the
state  to  make reasonable efforts.7  Like Samuel,  Stanley,  the
incarcerated  father  in Stanley B., did  not  contest  that  his
incarceration  amounted  to  a significant  time  away  from  his
children  and that the other parent was absent from his childrens
life.8   Stanley  appealed only the courts finding  that  he  had
failed  to   provide adequate arrangements.  Stanley argued  that
because  his children were already in the care of the  department
at  the  time of his incarceration, he was not obligated to  make
adequate arrangements for their care.9  Stanley also argued  that
even  if he were required to make adequate arrangements,  he  had
done  so  by  providing the department with  a  list  that  named
relatives  who  could care for his children.10  We rejected  both
arguments.
          On  the  first, we held that the fact that the children
were already in the departments care upon Stanleys arrest did not
relieve   Stanley   of  the  requirement  to   provide   adequate
arrangements   for   his  children.   We  noted   that   Stanleys
interpretation  would  give  an  advantage  to  parents  who  are
arrested  when their children are already in state  custody  over
parents  who  are  arrested when they  had  custody.11   We  then
considered Stanleys argument that he had adequately arranged  for
his children in his absence under AS 47.10.088(c) by providing to
the  department  a  list of relatives willing  to  care  for  his
children.12  The department, however, had found that none of  the
relatives  submitted  by Stanley to care  for  his  children  was
appropriate.13  We concluded that because Stanley did not provide
feasible  options for the placement of his children  he  did  not
satisfy the third prong of AS 47.10.088(o).14  Stanley B. requires
incarcerated  parents  to  take  affirmative  steps  to   arrange
appropriate  and feasible care options independent of  department
action.   The  issue  in this case is whether  Samuel  took  such
affirmative steps.
          In  reviewing  this issue, we have noted  testimony  by
Samuel  that,  if  true, would support a  finding  that  he  took
affirmative steps to make adequate arrangements for Georgia  upon
          her birth.  During his termination hearing, Samuel testified that
he  played  a  role  in determining Georgias placement  from  her
birth.   He  testified that he was on the phone  for  her  birth,
while  his  mother  and Loretta were at the hospital  to  support
Sylvia  and Georgia.  His mother, knowing that OCS was likely  to
take  custody of Georgia because of Sylvias drug troubles, called
Loretta  to take Georgia.  Samuels testimony, if credible,  shows
that  he participated in arranging for Georgia to be placed  with
Loretta before OCS placed the child with her grandmother:
          Q:  When  [Georgia] was first  born  and  was
          first  taken into OCS custody . . .  did  you
          have a placement option for her?

          A: . . . My mom knew what was going to happen
          . . . [W]e talked about a  a placement either
          with  my mom or with [Loretta]. You know,  we
          were  all  discussing it as  a  family.  .  .
          [W]ere  all  uniform.  We  talked  with  each
          other . . . .;

          Q:  Okay.  So its . . . your position in  the
          beginning  and  its still your position  that
          there  were arrangements made so that .  .  .
          she could be taken care of.

          A: . . . With the courts, it sounds like they
          wanted me to call OCS to make an arrangement,
          but,   see,  me,  Ive  never  been  in   this
          situation, so of course, ultimately, Im  just
          going  to  call  my mom or Im going  to  call
          [Loretta]  and, like, hey, you know  this  is
          what  we need to with [Georgia] . . . I didnt
          call  down there and find out who the  social
          worker is right away and go that way.   Maybe
          I   should  have,  but,  you  know,  I   made
          arrangements in  my way.
Samuel  may not have made formal arrangements with OCS,  but  his
testimony indicates that he did make arrangements in the only way
he  knew how  by arranging with his family members to assure that
Georgia  had  a safe home in the care of someone other  than  the
babys  drug-addicted mother.  To require any more formality would
impose  a  substantial  and unnecessary  burden  on  incarcerated
parents, who may not have access to attorneys or the court system
to  instruct them on how to protect their legal relationship with
children in their absence.  In the CINA hearing, the state argued
that  Samuel  should have (1) arranged to have Loretta  appointed
the legal guardian, (2) signed a power of attorney to Loretta for
Georgias care, or (3) otherwise given Loretta legal authority  to
care  for  Georgia.  The state further argues that  Samuel  could
have  suggested  contingent placements  in  the  event  that  the
placement with Loretta did not work out.  We decline to hold that
adequate   arrangements  under  AS  47.10.080(c)   includes   the
requirement  that  an incarcerated parent must  follow  a  formal
procedure to initiate legal proceedings to formalize arrangements
made for the child and make alternative plans merely because  the
parents plans overlap with OCSs arrangements.  An arrangement  is
adequate if, when followed, it will provide for the care  of  the
child.  If Samuels testimony concerning this point, therefore, is
true, he did make adequate arrangements for Georgia.
          Samuels testimony on his participation in the placement
of  Georgia  with  Loretta was not rebutted  in  his  termination
hearing.  The superior court, in its order, did not make  factual
findings  on  Samuels credibility or the evidence  he  submitted.
The  courts only finding on the issue of adequate provisions  was
conclusory:   Samuel has failed to make adequate  provisions  for
care of the child during the period of incarceration that will be
during  the  childs  minority.  We  must,  therefore,   review  a
superior  courts  order that does not contain  specific  findings
relevant to the issue on appeal.
          We   have  confronted  this  issue  before  in  several
different legal contexts and concluded that it is not the role of
an  appellate  court to make findings of credibility.15   When  a
trial  court  discredits a witnesss testimony but fails  to  make
specific  findings  on credibility we will remand  to  the  trial
court  to  make  such findings or to reverse  its  decision.   In
Brooks  v. Brooks,16 the superior court entered an order dividing
assets between a husband and wife that did not credit the husband
with  assets  that  his accountant testified were  owned  by  the
husband prior to the marriage.17  In reviewing the order, we found
[t]he  trial  court  made no credibility findings  and  there  is
absolutely  no  indication as to what  weight  it  accorded  this
evidence.18  Accordingly, we vacated that portion of the order and
remanded  to the superior court with instructions to either  make
findings  that support its conclusion or reverse its prior  order
to comport with the uncontested testimony.19
          In  the torts context, we addressed a similar issue  in
Graham  v.  Rockman.20  In Graham, we remanded in part where  the
trial  court  stated broadly that the alleged tortfeasor  had  no
defenses to such liability.21  The superior court failed to  make
any  further  findings regarding the appellants  defenses.22   We
remanded,  holding that we were unable to determine  whether  the
trial court specifically judged this issue, and if so, whether he
considered  that  the defense failed due to  a  legal  theory  or
inadequate proof of requisite facts.23  We noted that trial courts
must  follow  Civil Rule 52(a), which requires that  judges  make
factual findings to support legal conclusions, and emphasized the
importance of specific factual findings for appellate review.24
          These  cases  are not aberrant.25  We can review  legal
conclusions  only  when  the trial court  has  made  sufficiently
detailed  factual  findings to support those  legal  conclusions.
Without  explicit  findings  on Samuels  credibility  or  factual
findings  on Samuels testimony that he arranged, along  with  his
mother  and  Loretta, to place Georgia in Lorettas care,  we  are
unable  to  review  the  superior courts conclusion  that  Samuel
failed  to  make adequate provisions.  We remand to the  superior
court  to  make  findings  as to this  specific  portion  of  the
evidence.
     B.   It Is Not Necessary To Reach the Issue of Georgias Best
     Interests.
          As  we are remanding the issue of adequate arrangements
to  the  superior  court, it is unnecessary  to  reach  the  best
interests of the child issue.
V.   CONCLUSION
          Because   the  superior  court  did  not  make  factual
findings on the credibility of the fathers testimony and  because
his  testimony,  if  believed,  demonstrates  that  he  did  make
adequate  arrangements for his daughter, we VACATE  the  superior
courts termination of the fathers parental rights.  We REMAND  to
the  superior court for further proceedings consistent with  this
opinion.
_______________________________
     1     In order to protect the privacy of the parties, we use
pseudonyms.

     2    Erika A. v. State, 66 P.3d 1, 6 (Alaska 2003).

     3    Burke P. v. State, 162 P.3d 1239, 1242-43 (Alaska 2007)
(internal citations omitted).

     4     As  the second prong of the test turns on establishing
one of the conditions outlined in the first prong, we do not need
to reach this prong because Samuel only argues that the condition
never existed and therefore there is no condition to be remedied.

     5    93 P.3d 403 (Alaska 2004).

     6    26 P.3d 1089 (Alaska 2001).

     7    93 P.3d at 406; AS 47.10.080(c).

     8    93 P.3d at 406.

     9    Id.

     10    Id.

     11    Id.

     12    Id.

     13    Id.

     14    Id.

     15     See,  e.g., State v. Adams, 145 P.3d 590, 591 (Alaska
2006)  (finding  court of appeals erred in substituting  its  own
judgment  as to credibility of  witness); Anthony v.  State,  521
P.2d   486,   492  (Alaska  1974)  (The  assessment  of   witness
credibility  is  exclusively within the  province  of  the  [fact
finder].).

     16    733 P.2d 1044 (Alaska 1987).

     17    Id. at 1052.

     18    Id.

     19    Id.

     20    504 P.2d 1351 (Alaska 1972).

     21    Id. at 1354-55.

     22    Id.

     23    Id.

     24    Id.

     25     See,  e.g., Bakke v. State, 744 P.2d 655, 656 (Alaska
1987)  (From the record and findings before us, we are unable  to
determine  the  basis  of  the trial  court's  decision.  .  .  .
Accordingly,  we  remand this action with instructions  that  the
trial  court  either support its conclusion . . . or dismiss  the
action in favor of the State.);  Murray v. Murray, 856 P.2d  463,
466  (Alaska 1993) (remanding for findings sufficiently  detailed
and explicit to give us a clear understanding of the trial courts
decision).

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