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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
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
A. Facts1
2
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.
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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
enrollment.
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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.
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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
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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.
III. STANDARD OF REVIEW
"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)).
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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
IV. DISCUSSION
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
(continued...)
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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
priority.[10]
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,
(continued...)
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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
(continued...)
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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
incapacitated."15
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
(continued...)
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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).
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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
guardianship.
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.
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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.
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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).
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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.
32
530 U.S. 57 (2000).
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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.
40
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.
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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.
2001)).
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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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
protection").
51 406 U.S. 205 (1972).
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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).
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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.
V. CONCLUSION
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.
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