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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceedings of Tammy J. (3/2/2012) sp-6654

In the Matter of the Protective Proceedings of Tammy J. (3/2/2012) sp-6654

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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In the Matter of the Protective                 ) 

Proceedings of                                  )       Supreme Court No. S-13698 


TAMMY J.                                        )       Superior Court No. 3AN-08-00945 PR 


                                                )       O P I N I O N 


                                                )       No. 6654 - March 2, 2012 

                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:  Ted Stepovich, Law Office of Ted Stepovich, 

                Fairbanks,  for   Appellants   Theresa   H.  and   Jeff   J.   (limited 

                appearance for oral argument).          Elizabeth Russo, Assistant 

                Public     Advocate,     and   Rachel    Levitt,   Public    Advocate, 

                Anchorage,  for Amicus  Curiae Public  Guardian, Office of 

                Public     Advocacy.      Meg     K.   Allison    Zaletel,   Leslie   A. 

                Jaehning, and Mark Regan, Anchorage, for Amicus Curiae 

                Disability Law Center of Alaska. Laura C. Bottger, Assistant 

                Attorney General, Anchorage, and John J. Burns, Attorney 

                General, Juneau, for Amicus Curiae State of Alaska. 

                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 

                and Stowers, Justices. 

                CARPENETI, Chief Justice. 


                The parents of a developmentally disabled adult woman appeal the superior 

court's decision to appoint the public guardian, rather than the parents, as the woman's 

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legal guardian.      The superior court found that the parents failed to take advantage of 

resources available for the daughter's development and did not support the daughter's 

contact with extended family.   The parents appealed.   The parents argue that they should 

have been appointed as guardians and that the appointment of a public guardian, in the 

absence   of   clear   and   convincing    evidence   that   the   parents   were   unfit   to   serve   as 

guardians, violated their constitutional right to parent their child.  Because the superior 

court did not abuse its discretion in appointing the public guardian, and because the 

superior court's action did not violate the parents' substantive due process rights under 

the 14th Amendment, we affirm the decision of the superior court in all respects. 


        A.      Facts1 


                Tammy J.  was born in 1990.   She is the daughter of appellants Theresa H. 

and   Jeff   J.   (collectively   "Tammy's   parents")   from   the   Kotzebue   area.     Tammy   is 

developmentally disabled. The parties do not contest that Tammy functions at roughly 

the level of an eight- or nine-year-old and is incapacitated to an extent warranting the 

appointment of a guardian. 

                According to Theresa, the family moved to Anchorage after Tammy's birth 

to be closer to medical facilities for Tammy.         Approximately two years after Tammy's 

birth, Theresa and Jeff divorced, but the record suggests that they have continued to 

share responsibility for raising Tammy.          Theresa worked on the North Slope in three- 

week shifts, and Tammy would stay with Jeff while Theresa was away. 

        1       The superior court adopted the probate master's recommendation, and the 

probate master adopted the recommendation of the court visitor.  The following factual 

summary       relies  heavily   on   facts  from   the   court  visitor's   preliminary    report   and 

addendum, except where those facts were later contested. 

        2       We use pseudonyms for the parties to protect the family's privacy. 

                                                  -2-                                            6654

----------------------- Page 3-----------------------

                 Tammy   attended   special   needs   programs   in   elementary   school,   middle 

school, and high school. But school personnel reported that Tammy last attended school 

with   any   regularity   in   the   2006-2007   school   year.    According   to   the   Court   Visitor 

Marieann Vassar, Tammy's former high school teacher stated that Tammy "appeared to 

be very happy when she was in school."             The teacher also reported that Tammy 

                 had   some   long   periods   of   absence   due   to   a   chronic   lung 

                 condition, but [the teacher] also believed [Tammy] missed a 

                 significant amount of school to babysit her sister's child in 

                 Anchorage.   .   .   .   [Tammy]   was   successful   at   a   couple   of 

                 supported job sites . . . . [Theresa] responded when contacted 

                by the school and seemed concerned about [Tammy] . . . . 

                 Her family was slow to obtain hearing [aids] for her, which 

                 impacted her ability to progress. 

                 At some point prior to the commencement of proceedings, Tammy went to 

stay   with   her   sister,   Marcy   D.,   and   Marcy's   husband,   Jack.    The   record   is   unclear 

regarding when her stay began, why, how long it lasted, and how frequently it was 

interrupted.    But in general, Marcy and Jack claim that Tammy stayed with them for a 

year and a half in 2007 and 2008, while Tammy's parents claim that Tammy stayed with 

Marcy and Jack for only six weeks when Theresa was working on the North Slope and 

Marcy was recovering from a difficult pregnancy and needed assistance. 

                 According to Jack, Tammy said during the visit that she wanted to go back 

to school, so Marcy and Jack tried to enroll her for services at the Arc of Anchorage.  An 

Arc employee later reported to the court visitor that Marcy and Jack "seemed genuinely 

interested in getting support services for [Tammy], but . . . [Theresa] seemed resistant, 

and   didn't   appear   to   see   a   need   for   services."  Jack   stated   that   he   and   Marcy   had 

difficulties in obtaining the necessary information from Theresa in order to complete the 


                                                    -3-                                              6654

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               On August 7, 2008, after Marcy and Jack discovered what they believed to 

be evidence that Tammy's parents were misusing Tammy's Social Security benefits, 

Marcy petitioned      for sole guardianship and conservatorship of Tammy. (The Social 

Security   Administration   later   determined   that   Tammy's   parents   were   not   misusing 

Tammy's benefits.)      On August 13, 2008, Theresa picked up Tammy from Marcy and 

Jack's home. According to Marcy and Jack, Theresa then announced that Tammy would 

not be returning and that they would never see Tammy again. 

        B.     Proceedings 

               As noted above, Marcy filed a pro se emergency petition for appointment 

of a temporary guardian for Tammy on August 7, 2008, while Tammy was still staying 

in Marcy and Jack's home, and apparently without the knowledge of Tammy's parents. 

The petition claimed that Tammy "needs regular team medical attention" but that "due 

to . . . relu[c]tance from her mother [Tammy] has not been receiving care she needs." 

The petition also claimed that "[t]here is a history of domestic violence in the home of 

her parents and she frequently requests to not go back to [her] parents's home," and that 

Tammy had been living with Marcy and Jack for "approximately (more than) one year." 

In her accompanying petition to be appointed Tammy's guardian and conservator, Marcy 

listed herself as Tammy's "representative payee" for Social Security and other benefits, 

and identified her mother's address as "transient, in Alaska." 

               Probate    Master   John   Duggan    determined     that  there  was  no  medical 

emergency justifying a hearing within 72 hours and scheduled an expedited hearing for 

September      2,  2008.  In   the  interim,  Court   Visitor  Marieann    Vassar   assembled    a 

preliminary report on Tammy's affairs, based on contact with   over a dozen individuals 

acquainted with Tammy.         The court visitor's report concluded with a recommendation 

that the Office of Public Advocacy be appointed Tammy's temporary full guardian. 

                                               -4-                                          6654

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After the September 2, 2008 hearing, the probate master appointed the Office of Public 

Advocacy as a temporary conservator for Tammy. 

               An    evidentiary   hearing    took  place   on  December     4,   2008,   to  resolve 

Tammy's       guardianship     and    conservatorship.      Tammy's       parents    arrived   with 

representation, while Marcy and Jack continued to appear pro se.             Because Marcy and 

Jack's case required more time than expected, the probate court scheduled a further 

hearing for February 19, 2009.       The probate master also encouraged Tammy's parents 

and Marcy and Jack to agree on a time and place when Tammy could spend time with 

Marcy and Jack's young daughter in a neutral setting. 

               The February hearing was largely consumed by disputes regarding (1) the 

failure of the parties to arrange a visit between Tammy and Marcy and Jack's daughter 

around the holidays; (2) the last-minute exchange of exhibits; and (3) Tammy's parents' 

unsuccessful attempt to replace Tammy's court-appointed attorney, Chad Holt of the 

Office of Public Advocacy, with Lisa Nelson, an attorney from the same law firm as their 

own counsel, Suzanne Lombardi. 

               Unable to proceed with the evidentiary hearing, the probate master detailed 

a more specific plan for a visit between Tammy and Marcy and Jack the following 

Sunday, February 22, 2009.  When this meeting failed to take place, the probate master 

ordered another visit for March 29, 2009, which also apparently never happened. Marcy 

and Jack also stated that Tammy's parents had failed to follow the probate master's 

recommendation of a visit for their daughter's birthday on March 14, 2009. 

               During this period, Tammy's parents cross-petitioned to be appointed as 

Tammy's guardian and conservator.  After some delay, partly due to Tammy's parents' 

substitution of counsel, the fourth and final hearing took place on August 12, 2009. 

Probate Master Duggan heard the remaining evidence and witnesses.                 On August 24, 

2009,   the   probate   master   issued  a  report   in  which  he  adopted    the  court  visitor's 

                                                -5-                                           6654

----------------------- Page 6-----------------------

recommendation   that   a   public   guardian   be   appointed   Tammy's   full   guardian   with 

conservator authority. 

                Tammy's parents objected, arguing among other things that "[t]he probate 

court has substituted [its] view and decision making for [that of] the parents and that 

violates the parents' constitutional right to parent their own child."           Tammy's attorney, 

Chad   Holt,   joined   in   the   parents'   objections.  After   considering   Tammy's   parents' 

objections,      Superior     Court    Judge    Peter    A.   Michalski      adopted     the   master's 

recommendation, emphasizing "the utter failure of the mother of the incapacitated person 

to develop resources or take action for her."3 

                Tammy's parents appeal. 


                "The . . . selection of a guardian or conservator for an incapacitated person 

is committed to the sound discretion of the superior court. We review that decision for 

abuse   of   discretion."4   Specifically,   "[t]he   superior   court   abuses   its   discretion   if   it 

considers improper factors, fails to consider statutorily mandated factors, or assigns too 

much weight to some factors."5         Constitutional claims are questions of law to which we 

        3       Judge Michalski also noted that Tammy's public guardian could follow 

Tammy's preference for placement with her mother. 

        4       H.C.S.  v.   Cmty.   Advocacy   Project   of   Alaska,   Inc., 42   P.3d   1093,   1096 

(Alaska 2002) (citations omitted). 

        5       Id. at 1096 (citing S.N.E. v. R.L.B ., 699 P.2d 875, 878 (Alaska 1985)). 

                                                  -6-                                             6654

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apply our independent judgment.6        "As with all questions of law, we will adopt the rule 

that is most persuasive in light of precedent, reason, and policy."7 


               Tammy's parents raise two points on appeal.  First, they argue that the trial 

court failed to apply the preference for parents in guardianship appointments as required 

by AS 13.26.145.      Second, they argue that the trial court erred in concluding that the 

constitutional right to parent a child dissolves when the child reaches the age of majority, 

especially in cases where the adult child is developmentally disabled. 

        A.	    The Superior Court Did Not Abuse Its Discretion Under AS 13.26.145 

               By Appointing The Public Guardian For Tammy . 

               Alaska Statute13.26.145 contains the factors that Alaska's legislature has 

provided as guidance for courts in selecting a guardian.         Subsection (d) establishes an 

order of priority -     "parent of the incapacitated person" appears third in the list, while 

"the public guardian" appears   seventh and last.8        As Tammy's parents concede, the 

statute    also  "give[s]   the   appointing    court  discretion   to   override   the  statutory 

preferences."9   As most recently amended, the statute provides: 

        6      Bailey v. State, Dep't of Corr., Bd. of Parole , 224 P.3d 111, 116 (Alaska 

2010) (citing Covington v. State, 938 P.2d 1085, 1089 (Alaska App. 1997)). 

        7	     Id. (citing Lewis v. State , 139 P.3d 1266, 1269 (Alaska 2006)). 

        8	     AS 13.26.145(d). 

        9      Tammy's       parents'   brief   on   appeal   discusses    both   AS     13.26.145 

(guardianship     priorities)  and  similar   provisions   in  AS  13.26.210    (conservatorship 

priorities).  The superior court's order merges the roles of guardian and conservator, 

adopting the probate master's recommendation that "the   Office of Public Advocacy 

Public Guardian be appointed as full guardian including conservator authority." Because 

Tammy's parents did not raise an objection to the conservatorship assignment either in 

their Points on Appeal or prior to appeal, even though they were represented by counsel 


                                                -7-	                                         6654

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                (f) When in the best interest of the incapacitated person, a 

                court may decline to appoint a person who has priority under 

                (d) of this section as guardian of an incapacitated person and 

                may appoint as guardian a person who has a lower priority 

                than another person or who does not have a priority.              If the 

                court appoints a person with a lower priority under (d) of this 

                section than another person, the court shall make appropriate 

                written    findings    related  to  why    the  best   interests  of  the 

                respondent require appointment of the person with a lower 


        9       (...continued) 

at trial, we treat their objection to the conservatorship assignment as waived.                "[A] pro 

se litigant who fails to raise an issue below should not be able to raise the issue on appeal 

absent plain error." Maness v. Daily , 184 P.3d 1, 9 n.25 (Alaska 2008) (quoting Thoeni 

v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007)). 

        10      AS 13.26.145(f).   In 2008, the legislature added the second sentence to the 

subsection.  Ch. 53,  20, SLA 2008.   As the Director of the Office of Public Advocacy 

explained to the Senate Labor and Commerce Committee, the order of priority for who 

should be appointed as a guardian or conservator 

                starts with the person requested by the respondent, then the 

                spouse, then the adult child or parent, then a relative, family 

                friend, private guardian and then finally, as a last resort, the 

                Office of Public Advocacy.  This change simply asks that the 

                court     make    written    findings    as  to  why     someone     was 

                appointed.      Sometimes       .   .   .   family  members  exploit   the 

                protected person or were part of the problem and yet after the 

                appointment   [of   a guardian] they are at his door trying to 

                micromanage   the   ward's   affairs.       This   gives   his   office   a 

                written record of why that person was not appointed. Making 

                the court explain what it is doing is just good policy. 

Minutes, Sen. Labor & Commerce Comm. Hearing on S.B. 101, 25th Leg., 2nd Sess. 

(Jan. 25, 2008) (comments of Josh Fink, Director, Office of Public Advocacy).  Prior to 

2004, subsection (f) did not exist, and subsection (e) stated that "priorities established 

in (d) of this section are not binding, and the court shall select the person, association, 


                                                   -8-                                             6654

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               The Alaska legislature has provided further guidance in AS 13.26.090, 

which addresses the general purpose and basis for guardianship.             As we have noted, 

"guardians     for  incapacitated   persons   are  appointed    to  'promote    and  protect   the 

well-being of the person.' "11     "Guardianship for an incapacitated person . . . shall be 

designed to encourage the development of maximum self-reliance and independence of 

the person. . . ."12 It is clear that the legislature intended one of the primary underlying 

goals of guardianship for a developmentally disabled ward to be the promotion of the 

ward's autonomy and individual development.13 

        10     (...continued) 

or nonprofit corporation that is best qualified and willing to serve."        AS 13.26.145(e) 

(repealed and reenacted by ch. 84,  17, SLA 2004); see H.C.S., 42 P.3d at 1097.  The 

2004 amendments can be found in H.B. 427. 

               The 2004 amendments appear to have been motivated in general by a desire 

to provide greater protection for Alaskan wards.  See Minutes, House Health, Education 

& Social Services Comm. Hearing on H.B. 427, 23rd Leg., 2nd Sess. (Apr. 1, 2004) 

(sponsor statement by Jim Shine, Staff to Representative Tom Anderson, Alaska State 

Legislature)   (advocating     regulation  of   private   guardians   and  conservators  because 

"[v]ulnerable and incapacitated adults are easy prey for those wishing to exploit their 

resources" and because of need for "minimum qualifications and standards").  None of 

the testimony at the hearing suggested a concern for infringing the rights of potential 

guardians or conservators to be appointed to those roles. 

        11     H.C.S. , 42 P.3d at 1099 (quoting AS 13.26.090). 

        12     AS 13.26.090. 

        13     See  AS     13.26.116(c)    ("The   guardianship    plan  shall  be  designed    to 

encourage a ward to participate in all decisions that affect the ward and to act on the 

ward's own behalf to the maximum extent possible."); AS 13.26.117 ("The primary goal 

of the program described in the report must be, to the maximum extent possible, to 

develop     or  regain    the  ward's    abilities  to  handle   the   ward's    own   affairs."); 

AS 13.26.150(a) ("[T]he guardian shall encourage the ward . . . to develop or regain, to 

the maximum extent possible, the capacity to meet the essential requirements for physical 


                                               -9-                                          6654

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                 By contrast, nowhere in Alaska's guardianship statutes, AS 13.26.090-.150, 

and thereafter, does the legislature suggest that the interests of family members should 

be   considered   in   choosing   a   guardian.     The   best   interests   of   the   ward   appear   to   be 

paramount.14      The legislature may have given relative priority to close family in the 

appointment   of   guardians   for   the   same   reason   that   Missouri   did   in   its   guardianship 

priority scheme, not out of concern for the interests of the potential guardian but because 

"a   relative   is   likely   to   be   more   solicitous   than   a   stranger   in   providing   care   for   the 


                 In   the  present    case,   the  superior    court   adopted     the  probate     master's 

recommendation          "that   there   is  good   and    overriding     cause   to  appoint     the  Public 

Guardian."16        In   support    of   this  statement,     the  probate    master     focused    on   two 

         13      (...continued) 

health   or   safety,   to   protect   the   ward's   rights,   and   to   manage   the   ward's   financial 

resources."); AS 13.26.150(c)(1) (The guardian "shall assure that the ward has a place 

of abode in the least restrictive setting consistent with the essential requirements for the 

ward's physical health and safety. . . ."). 

         14      See 39 AM . JUR . 2D  GUARDIAN  & WARD   39 ("Best interests of ward or 

conservatee   as   paramount");  cf.   H.C.S.,   42   P.3d   at   1099   (noting   analogy   between 

analytical model in child custody cases, based on child's "best interests," and the similar 

aim in guardianship cases to "promote and protect the well-being of the person"). 

         15      Prost v. Schuffman , 202   S.W.3d 41, 44 (Mo. App. E.D. 2006) (intrnal 

quotation marks omitted). 

         16      The   "good   cause"   standard   invoked   by   the   master's   report   may   be   a 

reference to the pre-2004 version of the conservatorship statute, which stated that the 

"court, for good cause, may pass over a person having priority and appoint a person 

having less priority or no priority."           See H.C.S., 42 P.3d at 1097 (emphasis omitted) 

(quoting     AS    13.26.210(b)      (amended      2004)).    The     guardianship      statute  has   never 

contained "good cause" language.              But to the extent that the master applied a "good 

cause" standard in his analysis, the error was harmless.   The master found that there was 


                                                    -10-                                               6654

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considerations.       First,   he   found   "no   credible   evidence"   that   Theresa   would   provide 

Tammy with "reasonable access . . . [to] her extended family."  He based this conclusion 

partly on Theresa having "clearly subverted" an earlier agreement with the probate court 

to provide such access, and partly on Theresa being "not credible in her testimony that 

she supported and encouraged [Tammy's] access to extended family including her sister 

. . . and [her sister's] children."  Second, the probate master found the extent of Tammy's 

parents' efforts to "obtain services . . . or other . . . vocational and life skills training" for 

Tammy inadequate "in view of [Tammy's] important needs, young age and the ready 

availability of such services." 

                 In   adopting    the   probate    master's   recommendation,   the         superior   court 

responded to Tammy's parents' objections, including the suggestion that Tammy wished 

to remain under the care of her parents: 

                 It is important to consider the respondent's preferences and 

                 yet   that   is  only   one   consideration.       The   "standard"     for 

                 appointing   a   guardian   other   than   a   parent   for   an   adult   is 

                 different    than   the  considerations      related   to  custody     of  a 

                 biological minor child. Here the utter failure of the mother of 

                 the incapacitated person to develop resources or take action 

                 for   [Tammy]   supports   the   master's   recommendation   very 

                 strongly.     The   father   is   incapable   of   driving   the   child   to 

                 needed services and the mother is gone three [weeks] and 

                 then back three weeks.          The adult respondent needs more 

                 help than is or can be given by her parents. 

                         All    this  said,  the   guardian    is  not   prevented     from 

                 determining that [Tammy's] preference for placement with 

                 her mother is appropriate. 

         16      (...continued) 

"good     and   overriding   cause"   to   override   the   statutory      priorities   in  order   to  serve 

Tammy's "important needs."  This implies that the master found that it was in Tammy's 

"best interest" to override the statutory priority. AS 13.26.145(f). 

                                                    -11-                                                 6654 

----------------------- Page 12-----------------------

                The superior court's reasoning, and the probate master's reasoning behind 

it, faithfully took account of the factors mandated by AS 13.26.145.  The superior court 

recognized the generic priority for parental over public guardians, but declined to apply 

it in this case because a public guardian would be in the best interests of the incapacitated 

person.17   In accordance with the requirements of AS 13.26.145(f), the written findings 

explained why Tammy's best interests would be served by the appointment of a public 

guardian.       The    superior    court   carefully   adhered     to  Alaska's    statutes   regarding 


                Both   the   probate   master   and   the   superior   court   offer   legally   sufficient 

reasons why the appointment of a public guardian instead of Tammy's parents would 

have a greater chance of "encourag[ing] the development of maximum self-reliance and 

independence"18 of Tammy.  It is clear from the record as a whole that Tammy's parents 

have dedicated great efforts to raising Tammy and care for her deeply.   But the probate 

master found, and the record sufficiently supports, that Theresa had a difficult work 

schedule on the North Slope, alternating between three weeks there and three weeks at 

home; that Jeff relied on others to drive Tammy from their home to needed medical and 

social services; and that despite her parents' efforts, Tammy did not receive at least some 

readily available services for vocational and life skills training. Based on these findings 

of fact, we conclude that it was not an abuse of discretion   for the superior court to 

conclude that the appointment of a public guardian would be in Tammy's best interests. 

The superior court did not "consider[] improper factors, fail[] to consider statutorily 

        17      AS 13.26.145(f). 

        18      AS 13.26.090. 

                                                  -12-                                               6654 

----------------------- Page 13-----------------------

mandated factors, or assign[] too much weight to some factors," despite the statutory 

priority list.19 

                Finally, Tammy's parents suggest that in light of precedent, reason, and 

policy, it would have been better to appoint a temporary public guardian "with the goal 

of educating the parents on the duties of a guardian . . . , and then allowing the parents 

to assume those duties in full."       But it was not an abuse of discretion for the superior 

court to choose a different approach.   The probate master's factual findings support the 

conclusion that the appointment of a public guardian would lessen the risk of Tammy not 

receiving   important   developmental   services   at   this   important   stage   in   her   life.  In 

addition, training regarding guardianship would not necessarily address the problem of 

dissension in Tammy's family.          Finally, it remains possible under the superior court's 

judgment that Tammy's parents might one day become Tammy's guardians.  One of the 

public    guardian    roles  is  to  "endeavor    .  .  .  to  find  a  suitable  private  guardian  or 

conservator for the public guardian's ward . . . ."20           Tammy's parents remain free to 

petition the court in the future for a change in Tammy's guardianship.21 

        B.	     The     Superior     Court    Did   Not   Violate    The    14th   Amendment         By 

                Appointing The Public Guardian For Tammy Without Finding By 

                Clear And Convincing Evidence That Tammy's Parents Were Unfit 

                To Serve As Guardians. 

                Tammy's parents contend that the superior court violated their substantive 

due process rights under the 14th Amendment by appointing the public guardian for 

Tammy without finding by clear and convincing evidence that they were unfit to serve 

        19      H.C.S. , 42 P.3d at 1096 (citations omitted). 

        20      AS 13.26.380(b). 

        21      See AS 13.26.125. 

                                                 -13-                                              6654 

----------------------- Page 14-----------------------

as guardians.       They note that in Evans v. McTaggart22 we held that overcoming the 

parental   preference   for   child   custody   constitutionally   requires   clear   and   convincing 

evidence that parental custody would be detrimental to the child, and contend that the 

parental   right   to   substantive   due   process   extends   to   the   care   of   adult   children   who, 

because of developmental disabilities, remain dependent on their parents no less than 

minors.  Thus, they argue that we should recognize that overcoming the parental priority 

in guardianship proceedings constitutionally requires clear and convincing evidence that 

the   parents   are   unfit   to   serve   as   guardians,   or   that   parental   guardianship   would   be 

detrimental to the child. 

                 As    Tammy's      parents    implicitly    concede    in   their  brief,23  the  Alaska 

legislature     has   decided     otherwise.      The     legislature    established     a  guardianship 

appointment process for adults in general, with no separate track for developmentally 

disabled adults.24    This process gives priority to parents over public guardians, but does 

not require any special evidentiary showing to overcome the priority if doing so is in the 

developmentally disabled adult's best interests. 

                 The Due Process Clause of the 14th Amendment includes a substantive 

component that protects "those fundamental rights and liberties which are, objectively, 

deeply rooted in this Nation's history and tradition."25          The United States Supreme Court 

has repeatedly "confirmed that our laws and tradition afford constitutional protection to 

personal decisions relating to marriage, procreation, contraception, family relationships, 

        22       88 P.3d 1078 (Alaska 2004). 

        23       Tammy's parents concede that "both statutes give the appointing court 

discretion to override the statutory preferences." 

        24       See AS 13.26.090-.155. 

        25       Washington v. Glucksberg, 521 U.S. 702, 703 (1997) (citation omitted). 

                                                   -14-                                              6654

----------------------- Page 15-----------------------

child rearing, and education."26        "Neither the Bill of Rights nor the specific practices of 

States at the time of the adoption of the Fourteenth Amendment marks the outer limits 

of the substantive sphere of liberty which the Fourteenth Amendment protects."27 

                But the Court has also recognized that "[s]ubstantive due process has at 

times been a treacherous field" due to the "risks [that exist] when the judicial branch 

gives enhanced protection to certain substantive liberties without the guidance of the 

more specific provisions of the Bill of Rights."28             "As the history of the Lochner era 

demonstrates, there is reason for concern lest the only limits to such judicial intervention 

become the predilections of those who happen at the time to be Members of this Court."29 

As a result, the Court has "always been reluctant to expand the concept of substantive 

due process . . . ."30  "By extending constitutional protection to an asserted right or liberty 

interest," a court "to a great extent, place[s] the matter outside the arena of public debate 

and legislative action."31 

                In   Troxel    v.  Granville,32    the  Court's    most    recent   exploration    of  the 

substantive due process rights of parents, the Court noted that "[t]he liberty interest . . . 

of parents in the care, custody, and control of their children . . . is perhaps the oldest of 

        26      Lawrence v. Texas , 539 U.S. 558, 573-74 (2003) (citation omitted). 

        27      Planned Parenthood v. Casey , 505 U.S. 833, 848 (1992) (citation omitted). 

        28      Moore v. City of E. Cleveland , 431 U.S. 494, 502 (1977). 

        29      Id. (citation omitted). 

        30       Washington, 521 U.S. at 720 (quoting Collins v. City of Harker Heights, 

503 U.S. 115, 125 (1992)). 

        31      Id.

     530 U.S. 57 (2000). 

                                                   -15-                                             6654

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the fundamental liberty interests recognized by this Court."33               But at the same time, the 

Court has never taken a position on whether the substantive due process rights of parents 

extend to relationships with adult children.34         A number of circuit courts have concluded 

that the Constitution does not protect a parent's relationship with an adult child "in the 

context of state action which has the incidental effect of severing that relationship."35 

But the factual and procedural surroundings of these cases are distant from those of the 

present case.     They involved attempts by relatives to recover damages based on state 

action (such as a shooting by a police officer) that resulted in the death of a loved one.36 

                 Tammy's parents raise a more challenging issue.  They ask us to determine 

whether a parent has a constitutionally protected right to make decisions regarding the 

care,   custody,   and   control   of   an   adult   child   who,   due   to   developmental   disabilities, 

possesses the general competencies of a young minor.37 

        33      Id. at 65 (surveying over 75 years of case law, beginning with Meyer v. 

Nebraska , 262 U.S. 390 (1923)). 

        34      McCurdy   v.   Dodd ,   352   F.3d   820,   828   (3d   Cir.   2003)   ("[T]he   Court's 

parental liberty cases have exclusively dealt with the right to make critical child-rearing 

decisions concerning the care, custody, and control of minors."); see also id. at 828 n.5 

(noting that "[o]n two occasions," in 1977 and 1981, "the Court granted review in cases 

where      the   issue   might     have    arisen,   but   subsequently       dismissed     certiorari    as 

improvidently granted."). 

        35      Russ v. Watts , 414 F.3d 783, 787 (7th Cir. 2005) (surveying cases). 

        36       See id. at 787-88. 

        37       As noted above, it is uncontested that Tammy functions at the level of an 

eight- or nine-year-old. 

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                 We are aware of only a single opinion,  Chambers v. School District of 

Philadelphia Board of Education ,38  in which a court was confronted with the extension 

of a parent's substantive due process rights with regard to an adult, developmentally 

disabled offspring. But that case involved parents claiming that a school district's failure 

to   provide   their   adult,   developmentally   disabled   daughter   with   certain   services   had 

"deprived them 'of their daughter's companionship and association . . . .' "39                     Because 

the parents' claim involved companionship and association - rather than a parent's right 

to make decisions about a child's upbringing without undue government interference - 

it   raised   a   different   and   distinguishable   issue.   And,   in   any   case,   the   Third   Circuit 

disposed of the parents' due process claim in Chambers on other grounds.40 

                 In   an   earlier   case,  McCurdy   v.   Dodd ,41   the   Third   Circuit   foresaw   the 

possibility of a case like Chambers and the difficulties it would pose.42               In McCurdy , like 

Chambers, the court dealt with a parent's claim for recovery based on incidental state 

interference with the companionship and affection of an adult child.  McCurdy explained 

why substantive due process protections do not extend to the relationship between a 

parent and an adult dependent child: 

                 [T]he   parental   liberty   interest   as   defined   by   the   Supreme 

                 Court   .   .   .   concerns   the   right   of   parents   to   make   critical 

                 child-rearing   decisions   concerning   the   care,   custody,   and 

                 control of minors.   So defined, this fundamental right cannot 

        38       587 F.3d 176 (3d Cir. 2009).          

        39       Id. at 190.

     Id. at 192 (concluding that the parents' claim failed because they did not 

allege that the state deliberately sought to interfere in the parent-child relationship). 

         41      352 F.3d 820 (3d Cir. 2003). 

         42      Id. at 830 n.8. 

                                                    -17-                                               6654

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                 exist indefinitely. By its very definition, it must cease to exist 

                 at the point at which a child begins to assume that critical 

                 decisionmaking responsibility for himself or herself.[43] 

The Third Circuit then approvingly cited the District of Columbia Circuit: 

                 When children grow up, their dependence on their parents for 

                 guidance, socialization, and support gradually diminishes.  At 

                the same time, the strength and importance of the emotional 

                bonds      between    them    and   their  parents    usually   decrease. 

                 Concededly, the bond between a parent and child when the 

                 child is an adult usually bears some resemblance to the same 

                bond   when   the   child   was   a   minor.   But,   as   a   long   line   of 

                 Supreme Court cases attests, the differences between the two 

                 stages of the relationship are sufficiently marked to warrant 

                 sharply different constitutional treatment.[44] 

                 Most     of  the  U.S.   Supreme      Court's   parental    rights   jurisprudence     has 

concentrated on the need to protect families from state interference in shaping their 

children, sometimes suggesting that it is important for families to transmit a heritage 

apart from the state's traditions.        For example, in Meyer v. Nebraska 45 the Court notes 

"the power of parents to control the education of their own."46                 In Pierce v. Society of 

Sisters,47 the Court spoke of "the liberty of parents and guardians to direct the upbringing 

and    education     of  children    under    their  control."48    The    Court    explained     that  the 

        43      Id. at 829 (internal citations omitted). 

        44      Id.  (citing Butera v. District of Columbia , 235 F.3d 637, 656 (D.C. Cir. 


        45       262 U.S. 390 (1923). 

        46      Id. at 401. 

        47       268 U.S. 510 (1925). 

        48      Id. at 534-35. 

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----------------------- Page 19-----------------------

Constitution's "fundamental theory of liberty . . . excludes any general power of the state 

to standardize its children by forcing them to accept instruction from public teachers 

only.   The child is not the mere creature of the state."49           While these principles remain 

relevant in the case of a developmentally disabled child, they may carry less weight after 

the developmentally disabled child has been exposed to her parent's formative influences 

for 18 years.     It is inappropriate to refer to care for a developmentally disabled adult 

offspring as a form of "child rearing."50        The risk to the passing on of a family's heritage 

also seems substantially less when the state interferes in the care and custody of an adult 

developmentally disabled child than when the state interferes in decisions about the 

upbringing of a non-disabled minor. 

                 But   there   is   a   far   more   significant   factor   we   weigh   against   extending 

substantive due process protection to parents' care for a developmentally disabled adult 

child: the interests of the developmentally disabled adult herself.  Even in the context of 

minor children, when a child's preferences and interests conflict with the choices of 

parents, protection of the parents' rights may come at the expense of the rights of the 

child.   In  Wisconsin v. Yoder,51 the Court protected the rights of parents to direct the 

education of their children against a compulsory education law, but made clear that its 

analysis might not apply in a case "in which any harm to the physical or mental health 

of the child or to the public safety, peace, order, or welfare has been demonstrated or 

        49      Id.   at   535. For   a   further   summary   of   Supreme   Court   case   law   on   the 

fundamental liberties of parents to direct the upbringing of their children, see Troxel v. 

Granville, 530 U.S. 57, 65-66 (2000). 

        50       Cf. Moore v. City of E. Cleveland, 431 U.S. 494, 505 (1977) (citing cases 

recognizing that "[d]ecisions concerning child rearing . . . [are] entitled to constitutional 


        51       406 U.S. 205 (1972). 

                                                   -19-                                              6654

----------------------- Page 20-----------------------

may be properly inferred."52        An even stronger case can be made that the fundamental 

liberty   interests   of   developmentally   disabled   adults   "must   .   .   .   be   balanced   in   the 

equation."53    The general trend over the previous decades has been to recognize that 

developmentally disabled individuals "are not, and should not be, viewed or treated as 

'eternal children.' "54     This trend is reflected in the Americans with Disabilities Act, 

which states that "the Nation's proper goals regarding individuals with disabilities are 

to assure equality of opportunity, full participation, independent living, and economic 

self-sufficiency   .   .   .   ."55 The   present   case   illustrates   the   essential   tension   between 

protecting the parental interest in maintaining control over the care and custody of an 

adult developmentally disabled child, and that child's interest in maximal participation 

in society and the development of maximum self-sufficiency.                 The probate master and 

the superior court concluded that appointing Tammy's parents as her guardians could 

limit her potential by constraining her access to life skills training and to her extended 

family.  We cannot conclude that the United States Constitution requires us to overturn 

the Alaska Legislature's decision to value Tammy's interest in obtaining the greatest 

possible self-sufficiency and independence above her parents' interests. 

                We therefore affirm the superior court and decline to hold that parents have 

a substantive due process right to make decisions regarding the care and custody of their 

        52      Id. at 230 (citation omitted). 

        53      Troxel, 530 U.S. at 88 (Stevens, J., dissenting). 

        54      Melinda Hunsaker, Limited Conservatorships:                 A Delicate Balance , 50 

ORANGE  COUNTY  LAW . 26, 26 (2008).               "A delicate balance must be struck between 

respecting the developmentally disabled individual's adult status, and the implicit legal 

rights granted by that status, with the parents'   interest and understandable desire to 

continue to protect and assist their developmentally disabled child."  Id. 

        55      Americans with Disabilities Act of 1990, 42 U.S.C.  12101(7) (1990). 

                                                  -20-                                             6654

----------------------- Page 21-----------------------

adult developmentally disabled child unless shown to be unfit by clear and convincing 

evidence.    This conclusion is consistent with the states's traditional involvement in the 

care and maintenance of the developmentally disabled.56             The Constitution requires the 

state to determine guardianship for any adult based on the adult's best interests, nothing 

more. Given the difficult balance between the interests of parents, their developmentally 

disabled     adult  offspring,   and   the  state,  and   the  lack  of  any   clear  violation    of  a 

fundamental liberty interest in the present case, we see no reason to upset the careful 

balance struck by the Alaska Legislature. 


                Because the superior court did not abuse its discretion in its application of 

AS 13.26.145, including its overriding of the parental priority for guardianship based on 

the best interests of the ward, and because the superior court's action did not violate 

Tammy's   parents'   substantive   due   process   rights   under       the   14th   Amendment,   we 

AFFIRM the decision of the superior court. 

        56      The law of guardianships has been traced back to the English feudal system. 

See Joan L. O'Sullivan, Role of the Attorney for the Alleged Incapacitated Person , 31 

STETSON L. REV . 687, 689-92 (2002) (recounting history of guardianship). Traditionally 

the King of England had jurisdiction over mentally disabled individuals, arising from his 

parens patriae     authority.   Id.  at 169.   After the American Revolution, "the care and 

custody of persons of unsound mind, and the possession and control of their estates . . 

 . were deemed to be vested in the people . . . ."         Bliss v. Bliss , 104 A. 467, 471 (Md. 

 1918)   Case law reflects that courts of equity exercised "full and complete jurisdiction 

over the persons and property of [the mentally disabled]."  Id. 

                                                 -21-                                              6654 

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