Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Protective Proceedings of M.K. (6/15/2012) sp-6682

In Re Protective Proceedings of M.K. (6/15/2012) sp-6682

        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-13787 

                                                  ) 

M.K.                                              )       Superior Court No. 3DI-08-00023 PR 

                                                  ) 

                                                  )       O P I N I O N 

                                                  ) 

                                                  )       No. 6682 - June 15, 2012 

                                                  ) 



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

                 Judicial District, Dillingham, Fred Torrisi, Judge. 



                 Appearances:         Joseph     R.   Faith,   Dillingham,      for  M.K., 

                 Appellant.     Laura   C.   Bottger,   Assistant   Attorney   General, 

                 Anchorage,       and    Daniel    S.  Sullivan,     Attorney     General, 

                 Juneau, for Appellee State of Alaska, Department of Health 

                 & Social Services. 



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

                 Stowers, Justices.      [Christen, Justice, not participating.] 



                 STOWERS, Justice. 


----------------------- Page 2-----------------------

I.      INTRODUCTION
 



                M.K. is a 34-year-old mentally ill Alaska Native woman who lives in a 

rural village.1  In 1999, when M.K. was 22, her father A.K. sexually assaulted her.  M.K. 



reported the crime to police, but soon changed her story and A.K. was not tried at that 



time.   A.K. continued to live with the family for four years until advances in DNA 



evidence led to his case being reopened, and to A.K. being charged and convicted in 



2003 of the sexual assault.   M.K.'s mother remains married to A.K., who has since been 



released from prison and is on probation and prohibited from living with M.K.  M.K.'s 



mother has no plans to divorce A.K., and testified that she is not sure whether A.K. will 



return to live with the family when his probation ends. 



                The   Department   of   Health   and   Social   Services   (DHSS)   petitioned   for 



guardianship of M.K. in July 2008 based on M.K.'s mental illness and her inability to 



manage her own care. The court visitor completed a report, and a hearing was held over 



several    days,   following    which    the  superior   court   appointed    the  Office   of  Public 



Advocacy (OPA) as M.K.'s full guardian.   M.K. objected to this decision.  The superior 



court treated her written objection as an implicit motion for reconsideration and denied 



it.  M.K. now appeals, arguing that the superior court erred in its application of the 



guardianship      statutes  in  her  case,   in  its  best   interest   finding  that   OPA  should  be 



appointed in place of M.K.'s mother, and in appointing OPA as a full (as opposed to 



partial) guardian.    We affirm. 



        1       We use initials to protect M.K.'s privacy; for the same reason, we do not 



identify M.K.'s village. 



                                                  -2-                                              6682 


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

II.      FACTS AND PROCEEDINGS 



        A.       Factual Background 



                M.K.    is   a   34-year-old     Alaska    Native    woman.       When      M.K.    was 



approximately 16-18 years old, she was severely beaten by her boyfriend, and is thought 



to have sustained a brain injury from the assault.           M.K. has also been diagnosed with 



schizophrenia, depressive disorder, and possible post-traumatic stress disorder. 



                M.K.   lives   in   a   small   rural   Alaska   village   in   a   house   adjacent   to   her 



mother's.     Although M.K. is capable of routine activities such as dressing, bathing, 



feeding herself, cooking, cleaning for the family, and caring for her daughter while her 

mother works,2 her mental illness prevents her from being able to concentrate on the 



activities of daily living. 



                M.K. currently receives a Social Security payment of $700 per month. 



Although she should qualify for additional aid, M.K. has not obtained it, even with the 



assistance of the Alaska Legal Services Corporation; Don Cline, M.K.'s therapist; and 



Page O'Connell, a case manager.           According to Cline, M.K. is unable to secure aid on 



her   own   because   her   thinking   is   too   disorganized   and   slow   to   enable   her   to   follow 



through. 



                M.K. does not want a guardian.          However, Cline, Dr. Kathryn Hyndman 

(M.K.'s   physician),   the   court   visitor,3  and   M.K.'s   mother  agree   that   M.K.   needs   a 



        2       M.K. has had five children, though all have been placed elsewhere.  One 



of M.K.'s daughters was placed with M.K.'s mother by the village Traditional Council. 



        3       Alaska Statute 13.26.106(c) requires the court to appoint   a "visitor" to 



evaluate the facts and circumstances underlying a guardianship petition and report to the 

court: "The visitor shall arrange for evaluations to be performed and prepare a written 

report to be filed with the court. . . . The visitor shall interview the respondent . . . . The 

visitor   shall   conduct    the  interviews     and   investigations    necessary     to  prepare   the 

                                                                                        (continued...) 



                                                  -3-                                             6682
 


----------------------- Page 4-----------------------

guardian.  M.K. proposed that her mother help her make choices if the court determined 



that she had to have assistance; M.K. testified she wanted to be "[her] own guardian" and 



would prefer to make her own choices. 



                Dr. Hyndman testified that M.K. was so preoccupied with her delusions - 



which include a belief that "the peoples of [her village] are . . . 'puppets of the devil' " 



and that there is a muskrat living in her stomach - that she could not make decisions on 



other aspects of her life, and that M.K. "spends so much time dealing with her delusions 



that she is unable to concentrate on . . . the activities of daily living."             Dr. Hyndman 



testified that M.K. was not taking her anti-psychotic medication because she was breast- 



feeding her daughter. Dr. Hyndman also testified that M.K.'s schizophrenia was unlikely 



to improve without such medication. 



                Dr.    Kerry    J.  Ozer   assessed    M.K.    in  May     2009   and    recommended 



psychotropic medication, a structured living situation, and wrap-around services.                    Dr. 



Ozer stated that "[w]ithout a higher level of care [M.K.] is likely to continue to suffer 



from her paranoid delusions and further deterioration in functioning is to be expected." 



                M.K.'s mother received her personal care attendant certificate in 2002 in 



order to take care of M.K.         M.K.'s mother's work includes helping clients complete 



applications   for   assistance   such   as   Medicaid,   food   stamps,   and   lighting   and   heating 



assistance. 



                M.K.'s father A.K. sexually assaulted M.K. in 1999, when she was 22 years 



old.   M.K. reported the crime, but M.K.'s mother did not believe M.K. and has not 



always been supportive.  A.K. continued to live with M.K. and the family for years after 



        3(...continued) 



report . . . ." Cf. BLACK 'S LAW DICTIONARY           1708 (9th ed. 2009) ("visitor . . . A person 

appointed to visit, inspect, inquire into, and correct corporate irregularities."). 



                                                   -4-                                               6682 


----------------------- Page 5-----------------------

the assault until - with advances in DNA evidence processing - A.K. was charged 



with and convicted of sexual assault. 



               Superior Court Judge Fred Torrisi presided at A.K.'s criminal trial, as well 



as at several Child in Need of Aid (CINA) cases involving M.K. and her family. The 



court found in one of the CINA cases that "[M.K.'s] testimony [in the criminal case] was 



vague and inconsistent; neither [M.K.] nor her mother seemed to want [M.K.'s father] 

to be convicted."4 



               In a 2009 assessment, M.K.'s therapist Don Cline wrote: 



               [M.K.] is very delusional and paranoid, afraid others are out 

               to harm her at home. . . . Because of the level of abuse she 

               has    suffered   in   her   life  coupled    with   her   paranoid 

               thoughts/delusions this has made her access to health care 

               difficult for she trusts no one and it is hard for her to reach 

               out.  Also, her family [is] tired of listening to her delusions 

               and she really has no one but us to talk out her delusional 

               thoughts. 



Cline also wrote:   "[M.K.'s] mother tends not to believe her when she says she has been 



abused and will dismiss the complaints." 



               M.K. wishes to remain in her village.   The conditions of A.K.'s probation 



bar contact with M.K. until he is released from parole in 2012.           During his probation, 



A.K. planned to live elsewhere, and M.K.'s mother testified that no decision had been 



made   concerning   where   he   would   live   after   his   probation   ends. However,  M.K.'s 



mother also testified that in her opinion M.K. will be safe from A.K. while she is around. 



Cline noted his concern that upon A.K.'s release from probation, A.K. would end up 



returning to M.K.'s village and living with M.K. and her mother once more. 



        4      In the guardianship proceeding, the superior court expressly relied on its 



previous findings. 



                                               -5-                                            6682 


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

                Cline testified that M.K. is unable to feel safe due to trauma from past 



abuse, and that her fear of sexual abuse can be incapacitating to such an extent that she 



does not want to leave her house.   Dr. Ozer explained that M.K.'s family does not "seem 



to understand the nature and severity of her mental illness," and Cline testified that 



although    M.K.'s mother was aware that M.K. had delusions, she was not familiar with 



the specifics.   M.K. has frequently called crisis lines for reassurance and help. 



        B.      Procedural Background 



                A social worker with DHSS filed a petition for guardianship of M.K. in July 



2008, based on M.K.'s mental illness and inability to manage her own care.                      In June 



2009 the court-appointed visitor for M.K. visited her village and interviewed M.K., along 



with her social worker, her mother, and Cline.             The visitor found that M.K.'s mental 



condition "impairs her insight and judgment for decision making.   It is not expected that 



her abilities will improve significantly without medication and wraparound services." 



The visitor noted that A.K. would likely return to M.K.'s village upon his release, and 



expressed concern for M.K.'s safety.   The visitor explored alternatives to guardianship, 



but concluded that a full guardian was appropriate for M.K. "given her impairments," 



and   requested   that   OPA   be   appointed   as   her   guardian   "because   no   one   in   [M.K.'s] 



family, including [her mother,] can objectively make decisions in [M.K.'s] best interest." 



                The superior court held a hearing over three days, on July 30, August 5, and 



August 11, 2009.  Both parties were represented by counsel; the court visitor submitted 



her report and also testified; and Cline, Dr. Hyndman, M.K., and M.K.'s mother testified 



as well.   Judge Torrisi gave the parties notice that he had heard "several other matters" 



involving M.K. over the years, and set forth various findings he intended to rely on from 



these other proceedings. 



                These findings included A.K.'s conviction for sexual assault, the fact that 



neither M.K. nor      M.K.'s mother "seemed to want [A.K.] to be convicted," that A.K. 



                                                  -6-                                             6682
 


----------------------- Page 7-----------------------

remained   in   the   house   for   years   after   his   assault   on   M.K.,   and   that   M.K.'s   mother 



"doesn't believe that any crime was committed."  The court had also found that M.K. "is 



mentally   ill   and   easily   influenced,   especially   by   her   mother,"   and   found   based   on 



observing M.K. at various trials over a ten-year period that M.K. "was indeed abused as 



a child, [and] that her mother failed to protect her." 



                 Following the hearing, the superior court issued initial findings of fact and 



conclusions of law, but allowed the parties more time "to provide further input before 



disposition is completed."         The court found that M.K. required a guardian because the 



"evidence [was] overwhelming that she [was] incapacitated within the meaning of the 



[guardianship]   statute,"   and   that   OPA,   not   M.K.'s   mother,   should   be   appointed   as 



guardian.      The superior court explicitly noted that it had considered M.K.'s preference 

in   accordance   with   AS   13.26.113(g),5        but   found   that   OPA   had   the   "expertise   and 



independence"   to   act   in   M.K.'s   best   interest.     The   court   also   reserved   to   M.K.   the 



decision to "determine in what community she lives" under AS 13.26.113(e). 



                 M.K., acting through counsel, filed a statement of her "position with respect 



to the court's findings" on September 10, 2009.  In this statement, M.K. objected to the 



court's finding that she was incapacitated and needed a guardian, and also objected to 



the appointment of OPA instead of her mother, who she argued has statutory priority 

under AS 13.26.145(d)(1) and (3).6           M.K. further argued that "[u]nder AS 13.26.145(f), 



        5        Alaska   Statute   13.26.113(g)   provides:   "If   it   is   necessary   to   appoint   a 



guardian, the court shall consider the ward's preference." 



        6        Alaska Statute 13.26.145(d) provides in part: 



                 [Q]ualified persons have priority for appointment as guardian 

                 in the following order: 



                 (1)	   an   individual      or   organization      nominated       by   the 

                                                                                            (continued...) 



                                                     -7-	                                              6682
 


----------------------- Page 8-----------------------

the court is required to make [an] appropriate written finding related to why the best 



interests   of   the   respondent   require   appointment   of   a   person   with   a   lower   priority." 



Finally, M.K. argued that the court can appoint OPA as guardian only if " 'no person' 

is willing and qualified to perform the functions," citing AS 13.26.370(b).7                        M.K. also 



complained that the court visitor's report was conclusory in asserting that "[a]lthough 



family does have a higher priority, a public guardian is more appropriate at this time 



because no one in [M.K.'s] family, including [M.K.'s mother], can objectively make 



decisions in M.K.'s best interest"; M.K. argues that the court should not have relied on 



this "generalized conclusion." 



                 The superior court treated M.K.'s filing as a motion for reconsideration and 



denied it on September 14, 2009. On January 15, 2010, the superior court issued its final 



findings of facts and conclusions of law, and its order of guardianship.                         It found that 



                                                                        8 

M.K. was incapacitated as defined in AS 13.26.005(5) , and appointed OPA as a full 



         6(...continued) 



                 incapacitated   person   if,   at   the   time   of   the   nomination,   the 

                 incapacitated        person    had,    in   the  opinion      of  the   court, 

                  sufficient mental capacity to make an informed choice; 

                  . . . 



                  (3) an adult child or parent of the incapacitated person; 



                  . . . 



                  (7) the public guardian. 



         7       Alaska   Statute   13.26.370(b)   provides:   "A   court   may   order   the   public 



guardian to act as full guardian, partial guardian, conservator, or special conservator for 

a   person    who     is  determined      under    this  chapter    to  be   in  need    of   guardianship     or 

conservatorship service if no person or private guardianship association is willing and 

qualified to perform the function." 



         8       The superior court's findings stated that it found M.K. was incapacitated 



                                                                                                (continued...) 



                                                       -8-                                                 6682
 


----------------------- Page 9-----------------------

guardian, reserving to M.K. the right to choose the community in which she wanted to 



live.  The court explained that it 



                is in the best interest of the ward and is in compliance with 

                AS 13.26.145(f) because [M.K.'s] family members are not 

                appropriate for this appointment at this time. The Office of 

                Public Advocacy has the expertise and independence to act 

                [on M.K.'s] behalf, and may delegate powers where that is in 

                her best interest. 



M.K. appeals. 



III.    STANDARD OF REVIEW 



                "The   initial   selection   of   a   guardian   or   conservator   for   an   incapacitated 

person is committed to the sound discretion of the superior court,"9  and we will review 



the superior court's selection for abuse of discretion.10        Best interest findings are subject 



to review for abuse of discretion.11      In appointing a guardian, the superior court "abuses 



        8(...continued) 



as defined in AS 13.26.005(4). However, AS 13.26.005(4) defines the term "guardian." 

Alaska Statute 13.26.005(5) provides: " '[I]ncapacitated person' means a person whose 

ability to receive and evaluate information or to communicate decisions is impaired for 

reasons other than minority to the extent that the person lacks the ability to provide the 

essential requirements for the person's physical health or safety without court-ordered 

assistance."    The court's erroneous reference to subsection (4) is harmless. 



        9       H.C.S. v. Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S., 42 P.3d 



1093, 1096 (Alaska 2002) (citing In re Estate of Romberg , 942 S.W.2d 417, 419 (Mo. 

App. 1997); 39 AM . JUR . 2D  Guardian and Ward  40 (1999)). 



        10      Id. (citing 39 AM . JUR . 2D  Guardian and Ward  40). 



        11      See id.; see also Nichols v. Mandelin , 790 P.2d 1367, 1373 (Alaska 1990). 



                                                  -9-                                            6682
 


----------------------- Page 10-----------------------

its   discretion   if   it   considers   improper   factors,   fails   to   consider   statutorily   mandated 

factors, or assigns too much weight to some factors."12 



                We     will  review    "factual   findings   involved    in  determining      whether    a 

guardian or conservator should be appointed for clear error."13               "[A] finding is clearly 



erroneous   when   a   review   of   the   entire   record   leaves   [us]   with   a   definite   and   firm 

conviction that the superior court has made a mistake."14            We review "the interpretation 



of a statute de novo, adopting the rule of law that is most persuasive in light of precedent, 

reason, and policy."15  When construing statutes, we consider three factors: "the language 



of the statute, the legislative history, and the legislative purpose behind the statute."16 



We have held that "the plainer the language of the statute, the more convincing any 

contrary legislative history must be . . . to overcome the statute's plain meaning."17 



        12      Farmer v. Farmer , 230 P.3d 689, 693 (Alaska 2010) (citing H.C.S. , 42 P.3d 



at 1096). 



        13      Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004) (citing In re S.H. , 



987 P.2d 735, 738-41 (Alaska 1999)). 



        14      Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 



Servs., 77 P.3d 715, 717 (Alaska 2003) (internal quotation marks omitted). 



        15      H.C.S. , 42 P.3d at 1096 (citing Sosa v. State, 4 P.3d 951, 953 (Alaska 



2000)). 



        16      Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010). 



        17      Peninsula Mktg. Ass'n v. State , 817 P.2d 917, 922 (Alaska 1991). 



                                                  -10-                                             6682
 


----------------------- Page 11-----------------------

IV.	     DISCUSSION 



        A.	      The Superior Court Did Not Abuse Its Discretion In Appointing The 

                Office Of Public Advocacy As M.K.'s Guardian. 



                M.K.     asks   us  to  reverse   the   superior   court,   arguing    that  it  erred  in 



appointing OPA as guardian instead of M.K.'s mother, that it failed to properly apply 



AS 13.26.370(b), and that it erred in appointing a full as opposed to a partial guardian. 



                1.	      AS 13.26 does not require that the public guardian be appointed 

                        only when no other person is willing and qualified. 



                M.K. first argues that Alaska Statute 13.26.370(b), which states "[a] court 



may    order    the  public   guardian    to  act  as  [guardian]    .  .  .  if  no  person  or  private 



guardianship association is willing and qualified to perform the function" - when read 



in conjunction with AS 13.26.145, which lists priority of appointment - requires that 



M.K.'s mother be appointed as M.K.'s guardian. 



                        a.	      Applicable AS 13.26 guardianship statutes 



                Alaska   Statute   13.26.145   governs   guardianship  selection.          This   statute 



provides     that  "[t]he   court   may   appoint     a  competent     person,   including     a  private 



professional   guardian,   or   the   public   guardian,   as   the   guardian   of   an   incapacitated 

person,"18 but may not appoint someone who has, or is likely to have, "interests that may 



conflict   with   those   of   the   incapacitated   person."19  Notwithstanding   this   limitation, 



however,   the   court   may   appoint   "the   spouse,   adult   child,   parent,   or   sibling   of   the 



incapacitated person [if] the court determines that the potential conflict of interest is 



        18      AS 13.26.145(a). 



        19      AS 13.26.145(b)(3). 



                                                  -11-                                               6682 


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

insubstantial   and   that   the   appointment   would   clearly   be   in   the   best   interests   of   the 

incapacitated person."20 



                 Section .145(d) sets forth the order in which qualified persons have priority 



for appointment as guardian: 



                 (1)	    an     individual     or  organization      nominated       by   the 

                         incapacitated person if, at the time of the nomination, 

                         the   incapacitated   person   had,   in   the   opinion   of   the 

                         court, sufficient mental capacity to make an informed 

                         choice; 



                 (2)	    the spouse of the incapacitated person; 



                 (3)	    an adult child or parent of the incapacitated person; 



                          . . . 

                 (7)	    the public guardian.[21] 



This order of priority is subject to alteration by section .145(f), which provides: 



                 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.[22] 



        20       AS 13.26.145(c). 



        21       AS 13.26.145(d). 



        22       AS 13.26.145(f) (emphasis added). 



                                                    -12-                                                6682 


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

                 The second statute at issue, AS 13.26.370(b), states that the "court may 



order the public guardian to act as full guardian . . . if no person or private guardianship 



association is willing and qualified to perform the function." 



                         b.	     There       is   no    conflict    between       AS     13.26.145      and 

                                 AS 13.26.370. 



                 M.K. argues that the statutory language quoted above should be construed 



to mean that the public guardian may be appointed "only if no person is willing and 



qualified to be a guardian" (emphasis added), and that it was erroneous to appoint OPA 



when      M.K.'s    mother     was    willing    to  serve   instead.     M.K.     argues    that   reading 



section .370(b) together with section .145 compels this conclusion. 



                 The   State   responds   that   the   best   interest   of   the   ward   is   paramount   in 



guardianship decisions, that the plain meaning of these statutes does not suggest any 



conflict,   and   that   if   these   sections   are   in   conflict   then   section   .145,   being   the   more 



specific, should control. 



                 When construing statutes, we consider three factors: "the language of the 

statute, the legislative history, and the legislative purpose behind the statute."23 "[T]he 



plainer the language of the statute, the more convincing any contrary legislative history 

must be . . . . to overcome the statute's plain meaning."24 



                 M.K.   contends   that   the   plain   meaning   of   section   .370(b)   "states   with 



unmistakable clarity that the public guardian may be appointed as guardian if no person 



is   willing   and   qualified   to   serve   the   function." This   is   true. What   it   does   not   say, 



however, is that the public guardian may be appointed only in such cases. 



        23       Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010). 



        24       Peninsula Mktg. Ass'n v. State , 817 P.2d 917, 922 (Alaska 1991). 



                                                   -13-                                                 6682 


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

                M.K. offers an explanatory passage from AS 13.26.360, which states the 



purpose of the guardian statutes and observes that "[o]ften [incapacitated] persons cannot 



find   a   person   able   and   willing   to   serve   as   guardian." Again,   however,   this   merely 



reinforces OPA's chief mandate and does not imply that such cases are the only ones in 



which OPA may be appointed. 



                The State does not appear to contest - nor could it reasonably - that the 



public guardian exists as guardian of last resort.            However, section .145(f) expressly 



permits the court to alter the default priority order set out in section .145(d). M.K. points 



to no statutory language that limits OPA's appointment only to cases in which no person 



is willing to serve, or indeed to any language that purports to override section .145(f). 



The plain meaning of these statutory provisions permits the superior court to appoint 



OPA as guardian instead of persons or agencies with higher priority, provided the court 



does so in conformity with the statutes. 



                        c.	     The legislative history of the statutes   does not support 

                                M.K.'s argument. 



                M.K. offers excerpts from the legislative history of these statutes, arguing 



that "[t]he purpose and intent of the [l]egislature supports an interpretation that the public 



guardian   is   appointed  only if no person is willing and qualified to be a guardian or 



conservator." (Emphasis added.) M.K. relies on legislative statements that explain, "The 



second thrust [of the bill] would establish a public guardian so that if no private guardian 

could   be   found,   there   would   still   be   a   public   guardian   available,"25  and   the   public 



guardian office "provides guardianship . . . services to incapacitated persons . . . when 



        25      Minutes, Sen. Fin. Comm. Hearing on S.B. 3, 12th Leg., 1st Sess. (May 20, 



1981) (statement of Senator Parr). 



                                                  -14-	                                              6682 


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

no one else is willing or qualified to perform in this capacity."26              While the available 



legislative history reinforces the notion that the public guardian exists to provide services 



when no other person is qualified, it does not indicate   legislative intent to limit the 



appointment of OPA only to such cases. 



                The     State  points   to  more    recent   legislative   history   pertaining    to  the 



legislature's later addition of a requirement that the court enter written findings in cases 

where it appoints OPA in place of family members.27               The legislature explained that it 



did not want to see "the state guardian take[] the place of the spouse unless there is some 

detrimental effect or that the spouse is incapable of serving."28 



                The legislative history considered as a whole does not establish that the 



public guardian may be appointed only when no qualified and willing person exists. 



Rather,   the   history   demonstrates   that   the   legislature   intended   courts   to   do   what   the 



superior court did here: appoint OPA rather than someone with higher priority under 



section .145(d) pursuant to section .145(f)'s best interest mandate if the ward's best 



interest so requires. 



                        d.	     The     superior     court    did   not   err   in  failing    to  apply 

                                AS 13.26.370(b). 



                M.K. argues that the superior court erred by failing to apply section .370(b). 



She    asserts   that   the  superior  court   was   required    to  find  that   her  mother   was   not 



"qualified" before it appointed OPA under section .370(b).  The State responds that the 



        26       1983 Senate Journal 1250. 



        27      Ch. 50,  20, SLA 2008 (codified at AS 13.26.145(f)). 



        28      Minutes, H. Health, Educ., & Soc. Servs. Comm. Hearing on H.B. 427, 



23rd Leg., 2nd Sess. (April 6, 2004) (statement of Paul Seaton, Representative, House) 

(emphasis added). 



                                                  -15-	                                            6682
 


----------------------- Page 16-----------------------

superior court was not required to specifically disqualify anyone under section .370(b) 



or to make any separate finding under that section. 



                We agree with the State.          Section .370 is part of AS 13.26.360 - .410, 



which establishes the office of the public guardian, and sets forth its powers and duties. 



Section .370(a) provides that "[t]he office of public advocacy . . . shall serve as the public 



guardian," and section .370(b) explains that "[a] court may order the public guardian to 



act as full guardian . . . if no person or private guardianship association is willing and 

qualified to perform the function."29       This language is enabling authority, not a limitation 



of authority. Moreover, as explained above, even if section .370(b) did apply, it does not 



limit OPA's appointment to only those cases in which no other qualified person exists. 



                        e.	     Summary. 



                Neither   the   plain   meaning   nor   the   legislative   history   of   the   applicable 



statutes supports M.K.'s contention that the public guardian may be appointed "only if 



no person is willing and qualified to be a guardian."              Nothing in the language of the 



statutes or the legislative history indicates that the legislature intended that the public 



guardian act as guardian only when no other qualified person was available.                 Indeed, the 



public   guardian   is   expressly   included   in   AS   13.26.145(d)(7)   on   the   priority   list   for 



appointment, and AS 13.26.145(f) expressly provides that the court "may appoint as 



guardian a person who has a lower priority than another person or who does not have a 



priority." 



                2.	     The superior court did not abuse its discretion in finding that it 

                        was not in M.K.'s best interest for her mother to serve as her 

                        guardian. 



                The superior court stated in its findings and order of guardianship that 



        29      AS 13.26.370. 



                                                  -16-	                                              6682 


----------------------- Page 17-----------------------

                [t]he appointment of the Office of Public Advocacy is in the 

                best   interest   of  the   ward   and    is  in  compliance     with 

                AS 13.26.145(f) because respondent's family members are 

                not appropriate for this appointment at this time.  The Office 

                of Public Advocacy has the expertise and independence to act 

                [on] respondent's behalf, and may delegate   powers where 

                that is in her best interest. 



The superior court also specifically adopted by reference the reasons articulated in the 



visitor report, namely that "[n]o one in [M.K.]'s family, including [M.K.'s mother,] can 



objectively   make   decisions   in   [M.K.]'s   best   interest." The   court   also   incorporated 



findings from 2005 and 2008 CINA cases involving M.K., including findings that M.K.'s 



mother "failed to protect [M.K.]" from abuse as a child, that M.K. had apparently been 



swayed by her mother's testimony into reversing her position during A.K.'s criminal 



trial, that M.K.'s mother had no plans to divorce A.K. despite his having been convicted 



of sexually assaulting M.K., that "[t]he family remained together for years after this 



disclosure [of sexual abuse] until [A.K.] was jailed, and [M.K.'s mother] doesn't believe 



that any crime was committed," and that M.K. is "mentally ill and easily influenced, 



especially by her mother." 

                Best interest findings are subject to review for abuse of discretion.30 



                       a.	     The superior court's best interest findings are adequate, 

                               are supported by the record, and are not conclusory. 



                M.K. argues that the superior court's best interest findings are conclusory, 



and points to H.C.S. v. Community Advocacy Project of Alaska , a 2002 guardianship case 



        30      See H.C.S. v. Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S., 42 P.3d 



1093, 1096 (Alaska 2002); see also Nichols v. Mandelin , 790 P.2d 1367, 1373 (Alaska 

1990). 



                                                -17-	                                            6682 


----------------------- Page 18-----------------------

in   which   we   found   the   superior   court's   best   interest   finding   to   be   conclusory.31   In 



H.C.S. , we set forth certain factors relevant to determining the ward's best interest: 



                 This best interests determination will require the court to take 

                 into account the closeness of the ward's relationships to the 

                 existing   and   prospective   guardians   and   conservators.   This 

                 inquiry gives weight to the substantive values that apparently 

                 underlie the statutory priorities for appointing guardians and 

                 conservators. . . . [I]f a change would likely affect the ward's 

                 physical placement, the extent to which the ward has formed 

                 relationships with caregivers or others in the ward's present 

                 living   arrangement   may   be   relevant.   Other   circumstances 

                 may also be relevant in particular cases.[32] 



                 M.K. argues that appointing her mother would be in her best interest. M.K. 



also argues that considerations of continuity favor keeping M.K. with her mother, that 



M.K.'s mother wishes to be M.K.'s guardian, and that M.K. wishes her mother to fill this 



role. 



                 The State admits that the superior court's best interest findings "were not 



elaborate," but argues that "its shorthand reference to [M.K.'s   mother]'s inability to 



'objectively make decisions in [M.K.]'s best interest' speaks volumes, considering Judge 



Torrisi's familiarity with the . . . family."           The State also argues that by specifically 



incorporating       the  findings    from    M.K.'s     earlier  CINA      cases,   the  court   adequately 



supported its decision. 



                 Also,    unlike    in  H.C.S.    "where    the   hearing    'failed   to  address    several 

unresolved   factual   disputes'[33]      and   the   conclusory   finding   of   best   interest   gave   no 



indication whether the court considered relevant factors," in this case the superior court's 



         31      Id . at 1100-01. 



         32      Id . 



         33      Id. at 1101. 



                                                    -18-                                                  6682 


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

findings offer a sufficient basis for us to determine the factual basis for the superior 



court's conclusion, as well as whether the court considered the appropriate factors.  We 



agree. 



               We have held that the superior court's "findings need not be extensive, but 



must either give us a clear indication of the factors which the superior court considered 



important     in  exercising   its  discretion  or  allow  us  to  glean  from   the   record  what 

considerations   were   involved."34     The   superior   court   expressed   its   serious   concerns 



regarding M.K.'s mother's ability and willingness to act in M.K.'s best interest.  Judge 



Torrisi had extensive experience with M.K. and   her family, and explicitly stated his 



intent to rely on his findings from these past experiences.         Prior to entering its January 



2010 guardianship order, the superior court issued thoughtful, six-page findings of fact 



and conclusions of law.       The court also stated that it had considered M.K.'s preference 



in accordance with AS 13.26.113(g). 



                The court explained that "for the reasons articulated" in the visitor's report 



- which include that "[n]o one in [M.K.]'s family, including [M.K.'s mother,] can 



objectively make decisions in [M.K.]'s best interest" - M.K.'s mother was not the best 



choice for guardian.     This reason alone is sufficient to support the best interest finding. 



               Moreover, the visitor's report and the prior CINA findings also highlight 



that   M.K.'s mother has chosen to remain married to A.K., to allow him to remain in the 



home, and had no plans to divorce A.K., even in light of his conviction and incarceration 



for sexually assaulting their daughter M.K. M.K.'s mother testified that no decisions had 



been made yet regarding where A.K. would live after being released from parole.  The 



court visitor reported that, "[a]ccording to [A.K.'s] probation officer, his plans are to 



        34     Bird v. Starkey , 914 P.2d 1246, 1249 n.4 (Alaska 1996); see also Julsen v. 



Julsen , 741 P.2d 642, 649 n.10 (Alaska 1987) (rejecting need for express tally of all 

statutory factors where record reflects careful scrutiny by superior court). 



                                                -19-                                            6682 


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

return to [M.K.'s village], a fact that [M.K.'s mother] confirmed."   The superior court's 



reservations that M.K.'s mother would not make decisions in M.K.'s best interest are 



amply supported by the record. 



                 The    superior    court's   findings   also   clearly   indicate   the  factors   that   it 

considered important in exercising its discretion.35              We conclude that these findings 



constitute appropriate written findings for the purposes of section .145(f),36 and the court 



did not abuse its discretion in appointing OPA as guardian. 



                         b.	     The superior court did not err in failing to perform an 

                                 AS 13.26.145(b) conflict of interest analysis. 



                 M.K. also complains that "[t]he trial court did not perform a conflict of 

interest analysis as provided in AS 13.26.145(b)."37            M.K. calls her father's sexual abuse 



        35	      See Bird, 914 P.2d at 1249. 



        36       Alaska Statute 13.26.145(f) requires that "[i]f the court appoints a person 



with a lower priority under (d) of this section . . . 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."  (Emphasis   added.)        In   other   cases   we   have 

remanded for "appropriate written findings" when we "cannot ascertain from the record 

the factual or legal basis for the trial court's order," and "the trial court failed to make 

any findings of fact and conclusions of law" in support of its order.  See, e.g., Krkovich 

v. Hodges , Mem. Op. & J. No. S-2297, 1988 WL 1514918 at *3 (Alaska, June 8, 1988). 

Because   the   superior   court   elucidated   reasons   sufficient   to   support   its   best   interest 

analysis, this standard has been met. 



        37       Alaska   Statute   13.26.145(a)   provides        that   "[t]he   court   may   appoint   a 



competent person, including a private professional guardian, or the public guardian, as 

the guardian of an incapacitated person," but section .145(b)(3) provides that the court 

may not appoint someone who has, or is likely to have, "interests that may conflict with 

those of the incapacitated person." Notwithstanding this limitation, under section .145(c) 

the court may appoint "the spouse, adult child, parent, or sibling of the incapacitated 

person [if] the court determines that the potential conflict of interest is insubstantial and 

that the appointment would clearly be in the best interests of the incapacitated person." 



                                                   -20-	                                             6682
 


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

"the invisible elephant in the room" and concedes that "[i]t is certainly arguable that 



information   was   presented   that   might   have   been   used   by   the   trial   court   to   reach   its 



conclusion."  Nonetheless, she argues that "one is left to speculate what information the 



trial court used." 



                M.K. is correct that the superior court did not conduct a separate conflict 



of interest analysis under AS 13.26.145(b), and that it likely could have: M.K.'s mother's 



continuing marriage to M.K.'s sexual abuser is clear evidence of a conflict of interest. 



But although the court could have engaged in a conflict of interest analysis, it was not 



required to do so.  There was a sufficient basis for the court to have proceeded as it did, 



identifying OPA as the guardian that would best serve M.K.'s best interest in accordance 



with section .145(f).       The superior court did not abuse its discretion in declining to 

consider AS 13.26.145(b)'s conflict of interest analysis.38 



        B.	     The Superior Court Did Not Abuse Its Discretion In Appointing A Full 

                Guardian, As Opposed To A Partial Guardian. 



                M.K. finally argues that the superior court erred in appointing OPA as a full 



guardian rather than a partial guardian. 



                Alaska Statute 13.26.113 provides in relevant part: 



                (e) If it is found that the respondent is able to perform some, 

                but    not  all,  of  the  functions    necessary     to  care   for  the 

                respondent, and alternatives to guardianship are not feasible 

                or adequate to provide for the needs of the respondent, the 

                court may appoint a partial guardian, but may not appoint a 

                full guardian . 



        38      It is also difficult to understand how the outcome would have changed had 



the superior court conducted a conflict of interest analysis.                As even M.K. seems to 

recognize, it is very likely the court would have found a disqualifying conflict of interest 

precluding the appointment of M.K.'s mother as guardian because of her continuing 

marriage to M.K.'s father and the possibility of him returning to live with M.K.'s mother. 



                                                  -21-	                                            6682
 


----------------------- Page 22-----------------------

                (f) If it is found that the respondent is totally without capacity 

                to    care   for  the  respondent      and   that  a  combination      of 

                alternatives to guardianship and the appointment of a partial 

                guardian is not feasible or adequate to meet the needs of the 

                respondent, the court may appoint a full guardian. 



(Emphasis added.) 



                M.K.     argues    that  the  superior   court   should    have   appointed    a  partial 



guardian   under   section   .113(e)   based   entirely   on   the   fact   that   it   authorized   M.K.   to 



determine where she would live.            M.K. offers no citation of authority or persuasive 



argument   in   support   of   her   contention   that   allowing   her   to   decide   where   she   lives 



somehow demonstrates that she is "able to perform some, but not all, of the functions 

necessary to care for" herself.39      There is evidence in the record to support the superior 



court's appointment of a full guardian.  In proper context, the court's grant of authority 



to permit M.K. to select where she wanted to live was a commendable effort by the court 



to respect her wishes in making this important choice. 



V.       CONCLUSION 



                We AFFIRM  the superior court's order appointing OPA as M.K.'s full 



guardian. 



        39      The superior court mistakenly cited AS 13.26.113(e) in its findings of fact 



and conclusions of law when reserving to M.K. the power to determine the community 

in    which    she   would     live.   The     State   offers   a  plausible    explanation:     "Under 

AS 13.26.150(c), the court can modify the powers and duties assigned to a full guardian. 

By reserving to [M.K.] the power to choose her community of residence, the court did 

just that, despite its admittedly confusing reference to AS 13.26.113(e)."               The superior 

court's errant reference to AS 13.26.113(e) was harmless. 



                                                  -22-                                               6682 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC