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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hannah B. v. Dept. of Health & Social Services, Office of Children's Services (12/10/2012) sp-6736

Hannah B. v. Dept. of Health & Social Services, Office of Children's Services (12/10/2012) sp-6736

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

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HANNAH B.,                                    ) 

                                              )       Supreme Court No. S-14565 

                       Appellant,             ) 

                                              )       Superior Court No. 3PA-09-00066 CN 

        v.                                    ) 

                                              )       O P I N I O N 

STATE OF ALASKA,                              ) 

DEPARTMENT OF HEALTH &                        )       No. 6736 - December 10, 2012 

SOCIAL SERVICES, OFFICE OF                    ) 

CHILDREN'S SERVICES,                          ) 


                       Appellee.              ) 


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

               Judicial District, Palmer, Vanessa White, Judge. 

               Appearances: Marjorie K. Allard, Assistant Public Defender, 

               and    Quinlan     Steiner,  Public    Defender,    Anchorage,     for 

               Appellant.     Megan   R.   Webb,   Assistant   Attorney   General, 

               Anchorage,   and   Michael   C.   Geraghty,   Attorney   General, 

               Juneau, for Appellee. 

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

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

               CARPENETI, Justice. 


               A mother appeals the termination of her parental rights to her young son. 

The mother has a long history of substance abuse and relinquished parental rights to her 

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older daughter in 2008 because she was unable to care for her.              During the 18 months 

following   the   child's   removal,   the   mother   continued   to   abuse   drugs   until   she   was 

incarcerated. At that point, she entered an intensive residential substance abuse program 

at the prison, which she successfully completed two weeks prior to the termination trial. 

In appealing the superior court's order terminating her parental rights, the mother argues 

that the court erroneously (1) denied her motion to continue the termination proceedings; 

(2) determined that termination was in the best interests of the child; and (3) failed to 

consider     legal  guardianship    as  an  alternative   to  termination.    Because    we   find  no 

reversible error, we affirm the decision of the superior court. 


        A.	     Facts 

                Hannah B. is the mother of four-year-old Jacob.1         Jacob was born in March 

2008 and lived with his mother until he was 16 months old; he was removed from his 

mother's care by the Office of Children's Services (OCS) when Hannah was arrested for 

an outstanding warrant in July 2009.  Upon removal, Jacob was placed with his maternal 

grandmother, Carla, and has remained in her care.           Carla also has custody of Hannah's 

older child, Jordanne, who is 13 years old.         Hannah relinquished her parental rights to 

Jordanne in 2008. 

                1.	     Hannah's substance abuse and treatment history and prior OCS 


                Hannah has a significant history of substance abuse.               She   began using 

marijuana, methamphetamine, and alcohol as a teenager.   In May 1999, at the age of 19, 

Hannah gave birth to a daughter, Jordanne.           In 2000 or 2001, Jordanne was taken into 

        1       We use pseudonyms to protect the family's privacy. 

                                                 -2-                                              6736 

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

OCS custody because Hannah was growing marijuana.2                     During the period between 

Jordanne's   initial   removal   and   2005,   Hannah   participated   in   at   least   two   residential 

treatment programs for substance abuse.3         But these rehabilitation efforts were ultimately 

unsuccessful.      Jordanne    was    intermittently   returned    to  her  mother's     care  between 

treatment attempts, but Hannah was unable to maintain her sobriety outside of residential 

treatment and soon returned to using drugs.            After Hannah's relapse in 2005, Jordanne 

remained in state custody for more than four years before Hannah relinquished   her 

parental rights in 2008 and Jordanne was formally adopted by Carla in 2009. 

                2.      Hannah's OCS case with Jacob 

                In March 2008, Hannah gave birth to Jacob; he spent most of the first 16 

months of his life with Hannah.4        In July 2009, Hannah was arrested on an outstanding 

warrant.    She was later charged with several drug-related offenses.              At this time, OCS 

assumed custody of Jacob and initiated a child   in   need   of aid case.             Like his sister, 

Jordanne, Jacob was also placed with his maternal grandmother, Carla.                   OCS created a 

new case plan for Hannah, which required her to complete substance abuse treatment, 

obtain a mental health evaluation, take parenting classes, and pass random urinanalysis 

        2       Hannah testified that Jordanne was taken into OCS custody in 2000.  But 

court records indicate that the marijuana grow was discovered on May 31, 2001. 

        3         The   record   contains   conflicting   evidence   regarding   the   dates   and   the 

number of substance abuse treatment programs that Hannah engaged in between 2000 

and   2005.    But   there   is   ample   evidence   to   support   the   superior   court's   finding   that 

Hannah participated in at least two residential treatment programs during this period. 

        4       During this period Hannah was arrested and served jail time for driving 

with a suspended license.  Jacob's father played little role in his son's life.   His parental 

rights were ultimately terminated on the grounds of abandonment at the same proceeding 

at which Hannah's rights were terminated.             The father does not appeal the termination 

of his parental rights. 

                                                  -3-                                             6736

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

tests.  Hannah was permitted to visit Jacob at Carla's home, but Carla would not allow 

Hannah to visit if she had been using drugs.   Hannah testified that she would use during 

the week and then "clean up" for weekend visits. 

               Hannah complied with portions of her OCS case plan, but failed to follow 

through with recommendations and substance abuse treatment.                  In November 2009, 

Hannah completed a substance abuse evaluation and a mental health evaluation.                   Her 

substance   abuse   assessment   recommended   that   Hannah   participate   in   an   intensive, 

structured,   outpatient   substance   abuse   program,   followed   by   a   six-month   aftercare 

program. Dr. Grace Long, who conducted Hannah's mental health evaluation, diagnosed 

Hannah with depression, and she recommended a follow-up evaluation once Hannah had 

been sober for a minimum of six to eight months. 

               Hannah failed to follow through on these recommendations and dropped 

out   of   contact   with   OCS. For   the   18-month   period   between   Jacob's   removal   and 

Hannah's   incarceration   -   aside   from   a   three-day   detox   in   March   2010   -   Hannah 

continued to use drugs.      Her visitation record with Jacob during this period is unclear. 

Hannah and Carla both testified that Hannah maintained fairly regular visitation with 

Jacob on weekends during this period, other than a period of about six weeks when Carla 

denied   visits   because   Hannah   had   been   using   drugs.   But   according    to   Raymond 

Edwards, an OCS caseworker, Hannah was out of contact with Carla for longer periods 

of time because Hannah was using drugs.  The superior court found that Hannah "wasn't 

getting a lot of visits with Jacob [during the 18-month period] because she was using 

heavily."  Edwards testified that he had limited contact with Hannah during the summer 

of   2010,   and   his  repeated   attempts   to  get  in  touch  with   Hannah    after  that  were 

unsuccessful until December 2010. 

               In December 2010, Hannah entered a change of plea on her outstanding 

charges.   All felony drug charges were dismissed, and Hannah pleaded to one count of 

                                                 -4-                                          6736

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

felony failure to appear, for which she received a sentence of one year.  Soon after her 

remand into custody, Hannah was transported to Hiland Mountain Correctional Center, 

where   she   entered   the   Residential   Substance   Abuse   Treatment   (RSAT)   program   on 

February 1, 2011. 

               3.      Hannah's participation in the RSAT program 

               The RSAT program is an intensive, substance abuse treatment program that 

takes   between   six   and   nine   months   to   complete. Program   participants   are   housed 

separately from the general inmate population and are under 24-hour supervision by 

treatment staff, correctional staff, and program peers. Participants receive individual and 

group counseling and are subject to random urinalysis tests.   All of Hannah's urinalysis 

tests during the eight months she was enrolled in the program were clean.   The program 

requires participants to complete programs in parenting, grief and loss, drug and alcohol 

addiction, and criminal attitudes; they must also obtain their GED. 

               The RSAT program treats only the most seriously addicted offenders with 

lengthy criminal histories and has a particular focus on parenting skills.  A trained social 

worker,   Judy    Jacob,   serves  as  liaison  between    women     in  the  program   and   OCS. 

According to the Department of Corrections, many women win back parenting rights 

after completing the program. 

               Hannah maintained regular visitation with Jacob during her incarceration. 

OCS arranged visits twice a month, and Carla brought Jacob for a visit once a month. 

In September 2011 Hannah successfully completed the RSAT program, graduating a 

week before her release from prison.        She voluntarily entered Dena A Coy residential 

treatment   program   upon   her   release   from   Hiland,   in   compliance   with   RSAT   staff 


                                                -5-                                           6736

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        B.       Proceedings 

                 OCS is ordinarily required to file a petition to terminate parental rights once 

a child in need of aid has been in foster care for at least 15 of the most recent 22 months; 

an exception exists if OCS documents a compelling reason for determining that filing the 

petition would not be in the best interests of the child.5   OCS initially determined there 

was a compelling reason not to file a termination petition in this case, based on Jacob's 

placement with his grandmother and the "good bonding relationship" between Hannah 

and   Jacob.6     By   October   2010,   though,   OCS   was   pursuing   a   permanency   goal   of 

adoption, which the superior court approved at a permanency hearing that month.7                     OCS 

filed a petition for termination of parental rights in February 2011. 

                 In August 2011, shortly before trial was scheduled, Hannah's attorney filed 

a motion to strike the petition or continue the termination proceedings.8                 The bases for 

the continuance motion are set out below in Part IV.A.  The superior court denied both 

requests in a summary order.  Hannah's attorney then filed an interlocutory petition for 

review with this court, which we denied. 

        5        See  AS   47.10.088(d)-(e).   A   compelling   reason   may   include   care   by   a 

relative for the child.  Id. at (e). 

        6        This compelling reason is documented in Hannah's September 2010 case 

plan, dated September 29, 2010. 

        7        There is some confusion surrounding how and when OCS's view on this 

matter changed.       At trial, Edwards testified that the September 29 case plan may have 

been   drafted   at   an   earlier   time,   because   the   effective   date   is   the   date   of   supervisor 

approval.  He further testified that the compelling reason appeared to be "leftover" from 

the previous case plan, as he did not recall writing it. 

        8        Trial   had   been   set   for   August   16,   2011,   at   the   June   2011   permanency 


                                                    -6-                                              6736

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              The termination trial actually occurred on October 4, 2011. Five witnesses 

testified at trial: Two OCS case workers were called by the State; Hannah, Carla, and 

RSAT social worker Judy Jacob testified on Hannah's behalf. 

              At the time of the trial, Hannah was in the orientation phase of treatment 

at Dena A Coy and had not yet entered the program phase.          Jacob had been in OCS 

custody for 26 months and was three-and-a-half years old. 

              Hannah anticipated remaining in residential treatment until February 2012, 

when she would transfer into an intensive outpatient aftercare program, and she had 

identified a place to stay upon her release.   She testified that OCS would likely need her 

to demonstrate at least a year of sobriety before Jacob could be placed with her.  Hannah 

acknowledged that she had several triggers for drug use and that she   feared relapse 

because of her prior pattern of relapse.   But she also testified that "she wasn't serious 

about treatment in the past," and that she had learned coping skills in the RSAT program, 

was "a lot more responsible today," and wanted to be a good mother. 

              OCS social worker Edwards testified that Hannah had not made adequate 

changes within a reasonable time.     Although aware of Hannah's progress in the RSAT 

program, which he described as a good program, Edwards testified that "the real test" 

does not occur until an individual is on his or her own.     He noted that Hannah had a 

pattern of doing well while in a residential structured program but that "she's never been 

sober outside of jail," and that there was a high risk of relapse.  Edwards testified that 

given her history, Hannah would need to complete residential treatment and demonstrate 

sobriety outside of a controlled environment for at least a year before Jacob could be put 

in her care.  But Edwards stated that Jacob needed permanency now, in the form of 

permanent adoption by Carla.     He testified that it would not be in Jacob's best interest 

to be removed from Carla and that removal would likely be "quite traumatic."  Edwards 

                                            -7-                                       6736

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also asserted that Carla's house was "home" to Jacob, that Jacob viewed Carla as his 

"mom" and as his primary caregiver, and that Jacob's "primary bond" was with Carla. 

                Carla,   on   the   other   hand,   supported   reunification   between   Hannah   and 

Jacob.    She testified that there was a "big difference" in Hannah since she had entered 

the RSAT program and that Hannah was thinking about things in a "totally different" 

way than she had in the past, during other treatment attempts.               According to Carla, the 

RSAT program had "do[ne] wonders" and she believed the changes in Hannah were 

permanent.9  Carla also testified that Jacob knows Hannah as his mother, and that there 

was a "very strong" bond between Hannah and Jacob. 

                The   RSAT   social   worker   also   testified   on   Hannah's   behalf   in   favor   of 

reunification.   The social worker does not advocate for every mother who completes the 

RSAT program, but she felt Hannah deserved advocacy because of her consistency, 

focus, and progress.      The social worker testified that Hannah was "committed to doing 

everything she [could] . . . to be reunified with her son." 

                The superior court granted the termination petition.             The court found by 

clear and convincing evidence that (1) Jacob continued to be a child in need of aid under 

AS 47.10.011(10) (substance abuse); (2) Hannah had failed to make substantial progress 

to remedy her conduct due to her continued need for residential treatment; (3) OCS had 

made reasonable efforts to reunify Hannah and Jacob; and (4) termination was in Jacob's 

best interests. 

                While the court acknowledged Hannah's "very important" efforts in the 

RSAT program and her "beginning efforts" at Dena A Coy, it balanced this with her near 

total lack of progress before her incarceration.   The court noted that at the time Hannah 

        9       When asked whether she thought Hannah would "mess up again," Carla 

responded:     "No, I really don't think so, not this time." 

                                                  -8-                                               6736 

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entered the RSAT program, Jacob had been in out-of-home placement in excess of 18 

months.  And during this 18-month period, the court found that Hannah was continuing 

to use drugs and hiding from her parole officer instead of working on her case plan.  The 

court concluded that Hannah had failed to make substantial progress toward remedying 

the conduct or conditions that caused Jacob to be a child in need of aid.10 

                 The     court   characterized      the   RSAT      social   worker's      advocacy      for 

reunification as "uninformed" because she was "unaware of Hannah's relapse history 

after   two   prior   residential   programs."     It   also   found   that   the   social   worker   was   not 

advocating for Jacob's best interests but rather for the mother's best interests.  The court 

balanced Carla's testimony regarding the change in Hannah with Edwards's testimony. 

It relied on Edwards's statement that Carla's opinion of Hannah and what should happen 

with Jacob changed in correlation to how Hannah was progressing at the time.11                        The 

court   also   emphasized   that   Carla   "hoped,"   rather   than   "knew,"   that   the   changes   in 

Hannah were real. 

                 In its best-interests analysis, the court stated that "what this argument boils 

down to is the question of bonding."            It  found that the most important window for a 

child to form primary attachments and for development is between 18 and 36 months, 

and that Hannah had been absent during this critical period due to her drug use.   It 

        10       The court noted that even had Hannah completed the case plan (residential 

treatment     followed     by   a  period   of  outpatient    treatment,    followed     by  a  period    of 

aftercare),   there   would   still   be   an   open   question   as   to   whether   Hannah   had   made 

substantial progress, given Hannah's "history . . . of voluntarily engaging in residential 

treatment,   twice   in   the   past,   and   failing   once   she   left   the   residential   component   of 

treatment and being unsuccessful in an out-patient or aftercare setting." 

        11       The   court   found   that   "[w]hen   Hannah   is   doing   well   the   grandmother 

advocates for Jacob returning to his mother.             When Hannah is not doing well . . . the 

grandmother advocates for a quick adoption so that Jacob can be taken care of." 

                                                    -9-                                              6736

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further found that Jacob's primary bond was with his grandmother.                        Thus, the court 

concluded that the best interests of the child would be promoted by terminating Hannah's 

parental rights. 

                 Hannah's attorney moved for reconsideration, arguing that termination was 

contrary to the legislature's intent that all Child in Need of Aid (CINA) laws be liberally 

construed   to   strengthen   families   and   that   the   superior   court   should   have   considered 

alternatives to termination, such as guardianship or releasing Jacob to the grandmother 

under OCS supervision.  The superior court denied the motion in a summary order.  This 

appeal followed. 


                 We   review   a   denial   of   a   motion   to   continue   for   "abuse   of   discretion, 

determining   whether   a   party   has   been   deprived   of   a   substantial   right   or   seriously 

prejudiced by the lower court's ruling."12          In CINA cases, we review a superior court's 

findings of fact for clear error.13      Best-interests determinations are factual findings that 

are reviewed under a clearly erroneous standard.14             Findings are clearly erroneous only 

if the court is left with "a definite and firm conviction that a mistake has been made."15 

Generally, conflicting evidence is insufficient to overturn the superior court's decision, 

and we will not reweigh evidence when the record provides clear support for the superior 

        12      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

204 P.3d 1013, 1018 (Alaska 2009). 

        13       Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 254 P.3d 1095, 1103 (Alaska 2011). 

        14      Id. at 1104. 

        15      Maisy   W.   v.   State,   Dep't   of   Health   &  Soc.   Servs.,   Office   of   Children's 

Servs ., 175 P.3d 1263, 1267 (Alaska 2008) (quoting Brynna B. v. State, Dep't of Health 

& Soc. Servs., 88 P.3d 527, 529 (Alaska 2004)). 

                                                   -10-                                              6736

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court's ruling.16    We defer to a superior court's credibility determinations, particularly 

when they are based on oral testimony.17 

                Whether the superior court's findings are consistent with the CINA statutes 

is a question   of law   that we review   de novo, adopting   "the rule of law   that is   most 

persuasive in light of precedent, reason, and policy."18            In reviewing a superior court's 

decision terminating a parent's rights, we "bear in mind at all times that terminating 

parental rights is a drastic measure."19 


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

                Motion To Continue. 

                Hannah argues that the court abused its discretion in denying her request 

for a continuance.   She argues that there was good cause to continue the trial given that 

Jacob   was   in   a   stable   placement   with   Carla,   Hannah   was   making   good   progress   in 

treatment, and Carla opposed termination of Hannah's rights.   She asserts that there was 

inadequate information to make a decision at the time regarding Hannah's recovery or 

Jacob's long-term best interests and that a lengthy continuance would not have had an 

adverse effect on Jacob because he was too young to understand the legal implications 

and he was part of a larger, family-care structure. 

        16	     Id. 

        17      Pravat P. v.   State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 249 P.3d 264, 274 (Alaska 2011). 

        18      Tessa   M.   v.   State,   Dep't   of   Health   & Soc.   Servs.,   Office   of   Children's 

Servs., 182 P.3d 1110, 1114 (Alaska 2008) (quoting Brynna B. , 88 P.3d at 529). 

        19      Christina J.,  254 P.3d at 1104 (quoting Martin N. v. State, Dep't of Health 

& Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)). 

                                                  -11-	                                            6736

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                The original trial date in this case was August 16, 2011. Because OCS filed 

the termination petition on February 17, 2011,            the court was required to hold the trial 

by August 17, 2011, unless it found good cause to continue.20               In August 2011, shortly 

before trial, Hannah filed a motion to strike the petition21 or, alternatively, continue the 

termination proceedings for good cause. She argued that good cause existed to continue 

the termination proceedings because Hannah had a good relationship with Jacob, she was 

actively engaged in treatment, and Jacob was unlikely to suffer adverse effects from 

delay   due   to   his   young   age   and   stable   placement   with   his   grandmother.   The   State 

opposed the motion, arguing that (1) Hannah had failed to pursue treatment prior to her 

incarceration and still had a significant amount of treatment remaining; (2) Hannah had 

a history of relapse following substance abuse treatment; (3) OCS had determined that 

there was no compelling reason to delay filing the termination petition; and (4) Jacob 

needed permanency now.  The guardian ad litem also opposed the motion, arguing there 

was no good cause to continue the termination trial because Hannah had not remedied 

her conduct in   a timely   manner and   Jacob   needed permanency.                The superior   court 

summarily denied the motion to strike or continue. 

                To show that the court abused its discretion, Hannah must show that she 

was "deprived of a substantial right" or that she was "seriously prejudiced by the denial 

        20      See  AS 47.10.088(j) (providing that the court "shall hold a trial on the 

petition [no later than six months after the termination petition is filed] unless the court 

finds that good cause is shown for a continuance"). 

        21       Although   Hannah   asserts   that   the   court   erred   by   failing   to   strike   the 

termination petition in her statement of points on appeal, she does not brief the issue.  We 

therefore decline to address it here. See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 330 

& n.41 (Alaska 2001). 

                                                  -12-                                             6736

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of a continuance."22     Hannah contends that the superior court's denial of the motion to 

continue substantially prejudiced her ability at the termination trial "to make a reasoned 

and   well-informed   presentation   regarding   what   was   likely   to   be   the   progression   of 

Jacob's life and likely to be in Jacob's long-term best interests."23         In response, the State 

points out that Hannah only requested a three-month continuance,24 which - given the 

ultimate   postponement   of   the   trial25 -   would   not   have   materially   altered   Hannah's 

ability to present her case at trial, even if granted.       We agree with the State. 

                The trial was delayed for seven weeks and ultimately occurred in October.26 

There is no reason to believe Hannah's situation would have been substantively different 

had she been given an additional five weeks to demonstrate her sobriety.                 At trial, the 

superior court considered Hannah's plea for additional time to demonstrate sobriety; and 

        22      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

204 P.3d 1013, 1019 (Alaska 2009). 

        23      The State asserts these arguments are waived because they were not made 

before the trial court, but we do not agree.          Hannah's motion to continue essentially 

argued that given her progress in treatment and her bond with Jacob, a continuation was 

warranted because it would not be in Jacob's best interests to terminate parental rights. 

This is consistent with the argument she now makes regarding Jacob's long-term best 


        24      In her motion to continue, Hannah did not specify the length of continuance 

desired; however, she did reference attempts to negotiate a three-month continuance to 

allow Hannah to enter residential treatment and "demonstrate continued sobriety outside 

of a jail setting."    We therefore interpret her motion as a request for a continuance of 

three months. 

        25      The trial was originally scheduled for August 16, 2011, but was not held 

until October 4, 2011. 

        26      The superior court granted Hannah's request for a stay of the termination 

trial pending our resolution of her interlocutory petition for review. 

                                                 -13-                                            6736

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

it concluded that even had the termination trial been delayed several additional months 

to allow Hannah to complete residential treatment, the court still could not have found 

that Hannah had remedied her behavior.             The superior court explained that this was so 

because      of  Hannah's      "prior    history    of  voluntarily     engaging     in   treatment     and 

subsequently failing to maintain her sobriety for a significant period of time," which 

created substantial uncertainty whether she would be able to maintain her sobriety in the 

future.   The court also properly considered the effect of delay on Jacob;27 it concluded 

that such a delay would not be in Jacob's best interests, given his age and the length of 

time he had spent out of the home. 

                 Because   a   continuance   of   a   few   months   would   not   have   addressed   the 

court's concerns regarding the likelihood that Hannah would relapse, the denial of the 

continuance did not seriously prejudice Hannah's ability to make her case at trial.28                    In 

light of Hannah's pattern of relapse following treatment, the superior court had a strong 

basis to conclude that a few months of additional time would not have been sufficient for 

Hannah to show that she had truly remedied her conduct; and "we have emphasized that 

        27       When determining whether to grant a continuance for good cause, the court 

is required to take into consideration "the age of the child and the potential adverse effect 

that   the   delay   may   have   on   the   child." AS   47.10.088(j); see   also  AS   47.05.065(5) 

(finding that children undergo a "critical attachment process" before they reach six years 

of   age,   and   recognizing   that   "it   is   important   to   provide   for   an   expedited   placement 

procedure to ensure that all children, especially those under the age of six years, who 

have been removed from their homes are placed in permanent homes expeditiously"). 

        28       Because we conclude that Hannah was not seriously prejudiced by the 

denial of the continuance, we decline to reach Hannah's argument that the superior court 

failed to appropriately consider the implications of the relative-based exception to federal 

timelines in AS 47.10.088(e). 

                                                   -14-                                              6736

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

CINA cases are very time-sensitive."29         Thus, we conclude that the superior court did not 

abuse its discretion in denying Hannah's motion to continue. 

        B.	     The Superior Court Did Not Err In Finding That Termination Was In 

                The Best Interests Of The Child. 

                Before terminating parental rights, a superior court must find termination 

to be in the child's best interests by a preponderance of the evidence.30             We review such 

a finding for clear error.31    "In a termination trial the best interests of the child, not those 

of the parents, are paramount."32        A superior court may consider any fact relating to the 

best interests of the child in its best-interests analysis.33 

                1.	     The superior court did not err as a matter of law. 

                Hannah asserts that the superior court erred as a matter of law by focusing 

on   the   issue   of   bonding   in   its   best-interests   analysis. She   maintains   that   there   is   a 

fundamental difference between CINA cases where the child is in stranger foster care 

and CINA cases where the child is placed with a relative.                Therefore, she argues, the 

superior   court   should   have   considered   factors   that   are   more   relevant   to   a   relative 

        29      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

204 P.3d 1013, 1019 (Alaska 2009) (citing S.B. v. State, Dep't of Health & Soc. Servs., 

61 P.3d 6, 16 (Alaska 2002)). 

        30	     CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)). 

        31      Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 222 P.3d 841, 850 (Alaska 2009). 

        32      Kent V. v. State, Dep't of Health & Soc. Servs. , 233 P.3d 597, 601 (Alaska 

2010) (quoting A.B. v. State, Dep't of Health & Soc. Servs. , 7 P.3d 946, 954 (Alaska 


        33      Doe v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 272 

P.3d 1014, 1023 (Alaska 2012) (citing AS 47.10.088(b)). 

                                                  -15-	                                            6736

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

placement than factors relevant to a stranger placement.34                 This argument is without 

merit. Under AS 47.10.088,35 a superior court may consider "any fact relating to the best 

interests of the child" in its best-interests analysis; and we have recognized that "there 

is no requirement that superior courts accord a particular weight to any given factor."36 

Hannah fails to cite any legal authority indicating that cases involving the best interests 

of a child in the care of a relative must be analyzed differently than other cases.   And we 

note that the superior court did consider at least some of Hannah's proposed factors, such 

as   the   relative   caregiver's   opinion   and   Jacob's   future   relationship   with   his   mother. 

        34      Hannah       argues,   for   example,    that   the  following     issues   should    take 

predominance        in  a  relative-placement      case:   whether    the   relative  caregiver     thinks 

termination is in the child's best interests, whether termination is more beneficial than 

other    permanency       alternatives   such   as  guardianship,      and   whether    the  benefits    of 

termination outweigh the potential harm to the child's existing and future relationship 

to the parent. 

        35      AS 47.10.088 provides, in relevant part: 

                (b) In making a determination under (a)(2) of this section, the 

                court may consider any fact relating to the best interests of 

                the child, including 

                (1) the likelihood of returning the child to the parent within 

                a reasonable time based on the child's age or needs; 

                (2) the amount of effort by the parent to remedy the conduct 

                or the conditions in the home; 

                (3) the harm caused to the child; 

                (4) the likelihood that the harmful conduct will continue; and 

                (5) the history of conduct by or conditions   created by the 


        36      Doe , 272 P.3d at 1025 (citing Barbara P. v. State, Dep't of Health & Soc. 

Servs., 234 P.3d 1245, 1263 (Alaska 2010)) (internal quotation marks omitted). 

                                                   -16-                                             6736

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

Merely because the superior court reached a different conclusion than Hannah desired 

does not constitute legal error. 

                2.	     The superior court's finding that termination was in the best 

                        interests of the child was not clearly erroneous. 

                Hannah      frames    her  challenge    to   the  superior    court's   best-interests 

determination as a claim of legal error, but the cases she cites in support of her position 

suggest that she also contends that the superior court's factual finding - that termination 

was in Jacob's best interests - was erroneous.            The State maintains that the superior 

court's finding was amply supported by the evidence and should be affirmed.  It argues 

that the superior court properly focused on Jacob's primary bond with his grandmother 

and the fact that termination would allow for the achievement of Jacob's permanency 

goal of adoption. 

                As the superior court acknowledged, the facts of this case present a difficult 

decision. Factors weighing against termination included Hannah's recent progress in the 

RSAT program and her beginning efforts at Dena A Coy, as well as Carla's support of 

Hannah's   continued   involvement   in   Jacob's   life.      We   conclude,   however,   that   the 

superior court's finding that termination was in the best interests of the child was not 

clearly erroneous. We have repeatedly recognized that the best-interests analysis may 

include the child's need for permanency at the time of the termination trial;37 and we 

have stated that "a child's need for permanence and stability should not be put on hold 

        37      Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 222 P.3d 841, 850-51 (Alaska 2009) (focusing on children's immediate need for 

permanency despite current placement with grandparents); see also J.H. v. State, Dep't 

of   Health   &   Soc.   Servs.,   30  P.3d  79,   87  (Alaska   2001)   (holding   superior   court's 

determination that child "needed permanence and stability" and therefore termination 

was in child's best interests was not clearly erroneous, in case where mother had high 

risk of returning to substance abuse). 

                                                 -17-	                                          6736

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indefinitely while the child's parents seek to rectify the circumstances that cause their 

children to be in need of aid."38 

                 For example, in Dashiell R. ,39 we concluded that it was proper to consider 

the children's bond to their caregivers, their need for permanency and stability, and the 

potential   risk   to   the   children   if   returned   to   their   parent's   care.40 The   caregivers   in 

Dashiell R. were the children's paternal grandparents, who hoped to adopt the children.41 

Unlike the present case, the caregivers in Dashiell R.  did not support reunification;42 

nonetheless, we think the reasoning in that case is instructive here.                In Dashiell R. , the 

father made a similar argument to the one made by Hannah here:                       He contended that 

because his children would remain with their paternal grandparents regardless of whether 

his parental rights were terminated, it was clear error to find that termination was in the 

children's      best   interests.43    We     rejected    this  argument,      concluding      that  if  the 

grandparents' care were "only temporary," the children would remain "under the cloud 

of continuing uncertainty, [and] the children's need for permanence and security would 

        38       Kent V. v. State, Dep't of Health & Soc. Servs. , 233 P.3d 597, 603 (Alaska 

2010) (citing J.H. , 30 P.3d at 87). 

        39       222 P.3d 841. 

        40       Id. at 850-51. 

        41       Id. at 845, 850-51. 

        42       While the grandparents were willing to care for the children even if they 

were not granted permanent custody, they did not support reunification with the father. 

Id. at 845. 

        43       Id . at 850. 

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not be met."44    Similarly, as the superior court found here, it was very uncertain whether 

Hannah would be able to assume responsibility for Jacob, given the significant amount 

of treatment remaining and her pattern of relapse following residential treatment.  There 

was also evidence that Jacob had developed a primary bond with his grandmother, as he 

had been in her care for the majority of his young life.              Given these facts, the superior 

court's finding that termination was in Jacob's best interest was supported by substantial 

evidence and was not clearly erroneous. 

                 Hannah urges this court to adopt the approach taken by the Arkansas Court 

of Appeals in a case similar to this one, Cranford v. Arkansas Department of Human 

Services.45  Cranford involved a child's placement with maternal grandparents who, like 

Carla, were fit relatives willing   to   adopt, but who   intended   to   continue   the   parent's 

involvement in the child's life regardless of any termination   order.46                 The parents in 

Cranford, like Hannah, had completed some aspects of their case plans but they were not 

yet in a position to assume primary care-giving responsibilities for their   child.47                    In 

Cranford,   the   Arkansas   Court   of   Appeals   reversed   the   termination   order   as   clearly 

erroneous and remanded the case to the lower court to give the parents more time to 

        44      Id. at 851. We noted that even if the grandparents would still care for the 

children if the father retained parental rights, "the children's future would be in flux 

depending   on   the   .   .   .   progress   of   [their   father]."  Id. Thus,   we   found   the   father's 

argument "unpersuasive because the [superior] court found the need for a permanent, 

stable relationship now."  Id. at 850-51. 

        45       378 S.W.3d 851 (Ark. App. 2011), reh'g denied (Apr. 20, 2011). 

        46      Id. at 855. 

        47      Id. at 853-55. 

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

pursue     reunification     efforts.48   The     Arkansas     appellate    court   rejected    the  state's 

arguments   regarding   the   child's   need   for   "permanency,"   observing   that   termination 

would     not   necessarily    provide   greater   stability   for   the   child  because   he   was   in   a 

potentially permanent placement with his grandparents.49 

                 Despite many similarities, Cranford is nevertheless distinguishable from 

this case in important respects.        First, there   are important factual distinctions between 

the cases, including the age of the child,50 the length of time the child had been in out-of- 

home care,51 and the absence of lengthy histories of substance abuse on the part of the 

parents.52   Second, Arkansas law mandates a higher burden of proof in order to terminate 

parental rights than Alaska law.53        Indeed, the Cranford court emphasized that while the 

        48       Id. at 857. 

        49       Id.  The  Cranford         court   also   noted   that   because   the   child   was   in   the 

custody of relatives, there was "little harm" in allowing the parents more time to pursue 

reunification.  Id. 

        50       The child in Cranford was not removed from his parents until he was nearly 

four years old.  Id. at 852. 

        51       The child in Cranford had been out of custody for only 15 months at the 

time of the termination trial.  Id . at 852-53.         In contrast, Jacob had been out of custody 

for 26 months at the time of termination, and it was estimated that he would be in out-of- 

home care for 32-34 months before a trial home visit with Hannah could begin. 

        52       There   is   no   indication   that   either   of   the   parents   in  Cranford  had   long 

histories of serious substance abuse or patterns of relapse similar to Hannah's.  The 

child's removal was prompted by a traffic accident where the father had been driving 

while intoxicated; it was discovered that the mother had been drinking as well.  But 

while both parents were ordered to attend a drug and alcohol assessment, no mention is 

made of whether either parent had a history of substance abuse.                  See id. 

        53       Compare       ARK .     CODE .    ANN .      9-27-341(b)(3)(A)         (providing      that 

termination   order   shall   be   based   on   finding   by   clear   and   convincing   evidence   that 


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

parents had "exercised extremely poor judgment" in an isolated incident, there was no 

evidence that either parent had harmed the child or was a threat to do so in the future.54 

                 We    think   it  is  reasonable    for  courts,   when    making     the  best-interests 

determination,   to     consider    placement   with     a   relative   as   a   factor   weighing  against 

termination   under   certain   circumstances.        But   we   do   not   agree   that   such   placement 

necessarily establishes that termination is clear error, and we decline to so hold in this 

case.   Given Hannah's history of substance abuse and pattern of relapse, the length of 

time that Jacob had been in out-of-home care, and the evidence regarding Jacob's bond 

with his grandmother Carla, the superior court's finding that termination was in Jacob's 

best interests was not clearly erroneous. 

        C.	      Hannah Waived The Argument That The Superior Court Erred In 

                 Failing To Order A Guardianship. 

                 Hannah argues that the superior court erred in failing to consider legal 

guardianship as an alternative to termination.55           Hannah acknowledges that she did not 

ask   the   superior   court   to   consider   legal   guardianship   until   her   post-trial   motion   for 

reconsideration.      She also recognizes that the arguments before and during trial were 

focused     on   the  permanency       outcomes     of  termination     versus    reunification    and   on 

allowing Hannah additional time for reunification efforts.                 It is well established that 

arguments raised for the first time in a motion for reconsideration will not be considered 

        53       (...continued) 

termination is in best interests of the child), with CINA Rule 18(c)(3) (providing that the 

State must prove "by a preponderance of the evidence that termination of parental rights 

is in the best interests of the child"). 

        54       Cranford,   378   S.W.3d   at   856.      The   court   was   referring   to   the   traffic 

accident mentioned above. 

        55       She    also  appears    to  argue   that   the  court   should   have    considered     the 

permanent placement of Jacob with a relative as another alternative. 

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on  appeal.56    And in another CINA case, we held that an argument not raised at the 

termination trial is waived on appeal.57       Because the question of whether a guardianship 

would be in Jacob's best interests was not raised or explored at the termination trial, this 

issue has been waived.58 


                Because the superior court did not err in denying the motion to continue or 

in finding that termination was in Jacob's best interests, and because Hannah waived the 

        56      Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1155 (Alaska 

2009)   ("[W]e   will   not   consider   an   issue   raised   for   the   first   time   in   a   motion  for 

reconsideration.") (citing Haines v. Cox , 182 P.3d 1140, 1144 & n.13 (Alaska 2008)). 

        57      See G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 67 P.3d 648, 655 n.25 (Alaska 2003) (holding issue in termination of parental 

rights appeal waived because argument was not raised at trial). 

        58      We note that the   case argued on appeal is very different from the case 

presented to the superior court.  For example, Hannah spends a substantial portion of her 

brief emphasizing the qualitative difference between children in relative-based foster care 

and    children    in  stranger-based     foster  care;   and   she  asserts   that  these   qualitative 

differences weigh in favor of a different approach to these types of cases.  In particular, 

she argues that permanency considerations are different when the child is placed with a 

relative,   rather   than   in   stranger-foster   care,   because   the   child   is   not   "waiting"   for   a 

termination order so that he can have a permanent placement with his foster family. 

While these arguments may have merit, they were not presented to the superior court. 

Accordingly, we decline to reach them. 

                Moreover, the superior court is not obligated to sua sponte consider the 

alternative of guardianship in the context of a termination proceeding.  A.J. v. State, 

Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 62 P.3d 609, 614 (Alaska 

2003) ("The superior court was not required to consider the less drastic alternative of 

guardianship in a termination proceeding."). 

                                                  -22-                                            6736

----------------------- Page 23-----------------------

argument that the superior court erred in failing to order a guardianship, we AFFIRM the 

superior court's decision terminating Hannah's parental rights. 

                                          -23-                                     6736

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