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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Michael W. v. Brown (11/2/2018) sp-7312

Michael W. v. Brown (11/2/2018) sp-7312

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

MICHAEL  W.,                                                     )  

                                                                 )     Supreme  Court  No.  S-16662  

                                Appellant,                       )  


                                                                 )     Superior Court No.  1KE-17-00018 PR  

           v.                                                    )  


                                                                 )    O P I N I O N  


TINA BROWN and ROBERT                                            )  


                                                                 )    No. 7312 - November 2, 2018  


                                Appellees.                       )  




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


                      Judicial District,  Ketchikan, Trevor Stephens, Judge.  


                      Appearances:   Larissa Hail, Law Offices of Dan Allan &  


                      Associates, Anchorage, for Appellant.  Gabriel E. Sassoon,  


                      Baxter Bruce & Sullivan P.C., Juneau, for Appellees.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  



                      The superior court appointed a child's grandparents as his guardians after  


finding that the father's parental rights of custody had been suspended by circumstances  


because it would be detrimental to the child's welfare to remove the child from the  


grandparents' care.  The father appeals.  

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

                               We   conclude   that   the   phrase   "suspended   by   circumstances"   in   the  

guardianship statute, AS 13.26.132, is properly focused on the parent's ability to accept                                                                                                 

the rights and responsibilities of parenthood rather than on the child's welfare.                                                                                                   Because  

the superior court found that the father was not an unfit parent and had not abandoned                                                                                 

the child, it was error to find that all his parental rights of custody had been suspended                                                                                      

by   circumstances.    We   therefore   vacate   the   guardianship   order   and   remand   to   the  

superior court with instructions to dismiss the grandparents' guardianship petition.                                                                                         

II.             FACTS AND PROCEEDINGS             

               A.              Facts  

                               The essential facts of this case are not disputed. Michael W. and Mindy B.                                                                                           

married   in   February   1999   and   are   the   parents   of   Kevin,   born   in   2005.     Kevin's  

                                                                                          1  - Mindy's mother and stepfather - live in  

grandparents, Tina and Robert Brown                                                                                                                                                                



                               Michael and Mindy separated and in July 2010 obtained a dissolution of  


marriage in Oregon. The dissolution order awarded Mindy primary physical custody of  


Kevin and gave Michael visitation rights during some of Kevin's school breaks. Mindy  


and Kevin moved to Alaska to be near the Browns, and Michael moved to New York to  


be near his father.  


                               Both Michael and Mindy acquired new families.  Michael married again  


and lives near Rochester, New York, with his wife, daughter, and stepdaughter.  Mindy  


also married again and has a daughter, Faith.  


                               After  the  dissolution  Michael  tried  to  call  Kevin  regularly,  though  he  


testified there were many times Mindy failed to answer her cell phone, and he sometimes  


had to ask for her new husband's help in reaching Kevin. At the time of the guardianship  


                1              We  use  pseudonyms  to  protect  the  parties'  privacy.    

                                                                                                 -2-                                                                                                 7312  

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


hearing - March 2017 - Michael's last in-person visit with Kevin was in October  


2013, when he and his family attended Mindy's wedding in Kentucky. Michael had not  


seen Kevin for at least two years before that.  But Michael testified that he kept track of  


Kevin's progress in school, checked his grades and medical records, and spoke with his  


doctor.  He testified that he tried to arrange for Kevin to visit him in New York several  


times "but Mindy had an excuse why [Kevin] could not go."  He never sought judicial  


assistance in enforcing his visitation rights, however, and Kevin had never been to New  



                    At the time of the guardianship hearing Kevin was 12 years old, a 5th grade  


honor roll student, and one of the the school's morning greeters. He had friends and was  

well liked.  He had been diagnosed with Asperger's Syndrome in 2011 but apparently  


did not manifest "the significant social and behavioral problems oftenassociated with the  




                    Mindy had serious problems with alcohol, and in July 2016 she moved to  


Arizona to enter a rehabilitation program.  Her husband accompanied her, but they left  


both Kevin and Faith in the Browns' care in Alaska.  The Browns already had a close  


relationship with Kevin, as he had been spending at least two or three days a week at  


their house.  


                    TheBrowns contacted Michael within the first monthofMindy'sdeparture  


to inform him of the situation; he had not been aware of her alcohol problems.  Michael  


told  the  Browns  that  he  loved  and  missed  Kevin  but  thought  they  would  be  great  


guardians.  He did not ask them to send Kevin to New York, nor did he seek judicial  


assistance at that time to obtain custody.  


                    Michael  did  continue  his  regular  telephone  contact  with  Kevin.                                   The  


Browns  facilitated  his  weekly  calls,  "sent  him  [Kevin's]  school  pictures,  and  .  .  .  


encouraged [Kevin] to write to Michael and send him thank you notes." In the meantime  

                                                               -3-                                                         7312

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


the Browns provided Kevin with a safe, stable, and secure home in Alaska.  They were  


aware of Kevin's special needs and were capable of meeting them.  They had already  


been appointed guardians for Mindy's daughter, Faith, with whom Kevin also had a  


close sibling relationship.  


                    Although  at  the  time  of  the  hearing  there  had  still  been  no  in-person  


visitation between Michael and Kevin since 2013, the Browns testified that they planned  


to  facilitate  visitation  "in  order  to  re-establish  and  strengthen  [the]  father/son  


relationship."          They  did  not know Michael opposed  their  wish  to become Kevin's  


guardians until he filed an opposition to their petition the day before the hearing.  


                    Michael testified that he was employed full-time as a journeyman union  


carpenter, and his wife was a receptionist at a medical office. He had no criminal record,  


had no substance abuse issues, and was current on child support. There was no evidence  


of domestic violence in his home.   He testified that he had located a school in his  


community that Kevin could attend, contacted a nearby autism center to help address  


Kevin's special needs, and found a pediatrician willing to accept Kevin as a patient.  He  


described activities he hoped to share with his son, including travel and visits to theme  


parks, Niagara Falls, and museums.  

          B.        Proceedings  


                    The Browns' petition, filed in January 2017, sought their appointment as  


Kevin's guardians pursuant to AS 13.26.132.  Michael opposed the petition and moved  


to dismiss the case.  Michael and both of the Browns testified at the March hearing.  


                    A  few  days  later  the  superior  court  issued  a  detailed  order  denying  


Michael's motion to dismiss and granting the Browns' petition for guardianship.  The  


court first considered whether thesamestandardsthat apply in a custody dispute between  


a parent and a non-parent should apply to a guardianship proceeding - specifically  


whether the Browns should be required "to prove by clear and convincing evidence that  

                                                               -4-                                                         7312

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

all   of   Michael's   and   Mindy's  rights   of   custody   with   respect   to   [Kevin] have                                                                                                                                                                   been  

terminated or suspended by the circumstances because they are unfit parents, it would   

be detrimental to [Kevin's] welfare to not be in the [Browns'] custody and to be in the                                                                                                                                                                                   

custody of either parent, or they have abandoned [Kevin]." The court concluded that the                                                                                                                                                                                   

same standards should apply.                                                                     It found that all three grounds for finding that parental                                                                                               

rights were "suspended by circumstances" applied with respect to Mindy: she was an                                                                                                                                                                                         

unfit parent because of her substance abuse issues; it would be detrimental to Kevin's                                                                                                                                                                    

welfare for him to leave the Browns' care and live with her because the Browns were his                                                                                                                                                                                   

                                                                     2 and he"wouldbeemotionallyandpsychologicallydevastated and  

psychological parents                                                                                                                                                                                                                                                   

at substantial risk of not having his physical needs properly met"; and she had abandoned  


Kevin when she moved to Arizona with no plans for taking him back into her care.  


                                           With respect to Michael, the court found that only one of the three grounds  


was satisfied.  The court found that the Browns had not proven he was an unfit parent.  


It also found that although the Browns had shown that Michael abandoned Kevin "for  


substantial periods of time since 2010," they  did not establish  that  he  had  "totally  


abandoned" the child.  However, the court found that the Browns had proven "that it  


would be detrimental to [Kevin's] welfare if he were to leave [the Browns'] care and live  


with Michael" because they were Kevin's psychological parents and "it would [be]  


devastating for [Kevin] emotionally and psychologically to go to New York to live with  


Michael," whom he had seen only rarely, "and be separated from the [Browns]."  


                     2                    A "psychological parent" is "one who, on a day-to-day basis, . . . fulfills the                                                                                                                                                 

child's psychological needs for an adult . . . . This relationship may exist between a child                                                                                                                                                                                          

and any adult; it depends not upon the category into which the adult falls - biological,                                                                                                                                                         

adoptive,   foster,   or   common-law   -   but   upon   the   quality   and   mutuality   of   the  

interaction."   Moore v. McGillis                                                                   , 408 P.3d 1196, 1198 n.1 (Alaska 2018) (quoting                                                                                                           Evans  

v.  McTaggart, 88 P.3d 1078, 1082 (Alaska 2004)).                                                                                                                   

                                                                                                                                     -5-                                                                                                                            7312

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

                                                The court concluded that both Mindy's and Michael's parental rights to                                                                                                                                                                                      

custody   had   been "at least suspended                                                                                                     by   circumstance," allowing                                                                            the   guardianship  

petition to go forward.   The court then considered whether the Browns had met the                                                                                                                                                                                                                      

requirement of AS 13.26.143 "to also prove that it is in [Kevin's] best interests that [the                                                                                                                                                                                                           

Browns] be appointed his guardians."                                                                                                     Noting that neither the guardianship statute nor                                                                                                               

related case law defined "best interests" in the guardianship context, the court applied                                                                                                                                                                                                 

the best interests factors listed in AS 25.24.150(c) - which governs child custody cases                                                                                                                                                                                                         

-  reasoning that "[a] guardianship is akin to a child custody case in important respects."                                                                                                                                                                                                                            

Finding that all the relevant factors weighed in favor of the Browns, the court concluded                                                                                                                                                                                      

that it was in Kevin's best interests that the Browns be appointed as his guardians.                                                                                                                                                                                                                   

                                                Michael timely appealed from this order. Mindy did not appeal and has not                                                                                                                                                                                

participated in this appeal.                                        

III.                    STANDARDS OF REVIEW                                                    

                                                                                                                                                                                                                        3          "We  interpret  statutes  

                                                We   review   statutory   interpretations   de   novo.                                                                                                                                                                                 

 'according to reason, practicality, and common sense, taking into account the plain  


meaning and purpose of the law as well as the intent of the drafters.' "4  


IV.                     DISCUSSION  

                                                Michael's arguments on appeal fall into five categories:  (A) whether the  


 superior court properly interpreted AS 13.26.132, authorizing appointment of a guardian  


only "if all parental rights of custody have been terminated or suspended"; (B) whether  


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

394   P.3d   543,  550   (Alaska   2017)   ("Alaska   Statute   13.26.045   does   not   define  

 'suspended' and the parties dispute its meaning; we consider the meaning of a statutory                                                                                                                                                                                          

term de novo." (citations omitted)).                                                       

                        4                      Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d 1078, 1082 (Alaska  


2011) (quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).  


                                                                                                                                                     -6-                                                                                                                                          7312

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

the evidence supported the court's conclusion that Michael's custodial rights had been                                                                                                                                                                                                                                                         

 suspended by circumstances; (C) whether the court gave sufficient weight to Michael's                                                                                                                                                                                                                                    

constitutional right to parent his child; (D) whether the court erred by allowing Kevin to                                                                                                                                                                                                                                                                

remain in the courtroomduring the guardianship                                                                                                                                                     hearing; and (E) whether the court erred                                                                                                   

when it relied on Kevin's courtroom demeanor in finding that it would be detrimental to                                                                                                                                                                                                                                                                    

his welfare to remove him from the Browns' custody.                                                                                                                                                                             

                                                       Because we conclude that parental rights to custody cannot be "suspended                                                                                                                                                                                    

by circumstances" based solely on a determination that returning the child to the parent's                                                                                                                                                                                                                                        

custody would be detrimental to the child's welfare - and reverse the superior court's                                                                                                                                                                                                                                                

decision on that ground - we need not decide Michael's other claims.                                                                                                                                                                                                                               5  

                           A.	                         "Suspended By Circumstances" Contemplates Circumstances That  


                                                       Deprive  A  Parent  Of  The  Ability  To  Accept  The  Rights  And  


                                                       Responsibilities Of Parenthood.  


                                                       The duty to support and protect children generally falls on their parents.6  



Indeed, parents have not only a duty but also "a fundamental [constitutional] right to  

                            5                          We   do,   however,   note   our   serious   disapproval   of   the   superior   court's  

reliance on Kevin's courtroom demeanor as evidence "that [Kevin] very much wants to                                                                                                                                                                                                                                                                       

remain with the Browns and was very upset at the prospect of going to New York to live                                                                                                                                                                                                                                                             

with Michael and his family."                                                                                                   Michael and both parties' counsel participated in the                                                                                                                                                                

hearing telephonically, and at the end of it, when the court noted that Kevin had "been                                                                                                                                                                                                                                                   

quite upset at different points in the hearing," Michael's counsel expressed surprise that                                                                                                                                                                                                                                                         

Kevin had remained in the courtroom during the proceedings.                                                                                                                                                                                                        It does not appear that                                                         

Michael had notice that Kevin's in-court reaction to others' testimony was part of the                                                                                                                                                                                                                                                               

evidence on which the court would rely in reaching its decision.                                                                                                                                                                  

                            6                          See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) ("A parent  


is obligated both by statute and at common law to support his or her children.") (citing  


AS 25.20.030; In re J.J.J., 718 P.2d 948, 949 (Alaska 1986)); Sickel v. State, 363 P.3d  


 115, 117 (Alaska App. 2015) (noting that "under the common law, parents have a duty  


to protect their minor children").  


                                                                                                                                                                            -7-	                                                                                                                                                               7312

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


control the upbringing of their children."                                                               A court acting under Alaska's probate code                                                        

thus "has no power to appoint a guardian at all if the minor has a living parent entitled                                                                                                           

                                       8    But "[t]he court may appoint a guardian for an unmarried minor if all  

to his custody."                                                                                                                                                                                                 

parental rights of custody have been terminated or suspended by circumstances or prior  


court order."9  


                                 There  is  no  court  order  in  this  case  terminating  or  suspending  all  of  


Michael's parental rights of custody.  Our focus, therefore, is on whether all his rights  


of custody were suspended by circumstances.  The superior court held that they were;  


Michael contends this was error.  


                                 The superior court drew from child custody cases involving the claims of  


non-parents  and  analyzed  the  statute's  phrase  "suspended  by  circumstances"  as  


encompassing the same three grounds we have identified as justifying non-parental  


custody:  parental unfitness, abandonment, and detriment to the child's welfare.10                                                                                                                           The  


                 7                Treacy v. Municipality of Anchorage                                                        , 91 P.3d 252, 268 (Alaska 2004).                                   

                 8               In re Guardianship of Lupe C.                                                   , 812 P.2d 365, 369 (N.M. App. 1991)                                   

                               NIFORM  PROBATE  CODE  PRACTICE  MANUAL  511 (Richard V. Wellman ed.,                                                                                                          

(quoting 2 U 


 1977));  see also                        UNIF . P           ROBATE  CODE    5-204 cmt. 8 pt., 2 U.L.A. 336 (1998) ("The                                                                               

court [under the Probate Code] is not authorized to appoint a guardian for [a child] for                                                                                                 

whom a parent has custodial rights or for one who has a parental guardian.").                                                                                                                 "Because  

Alaska adopted the Uniform Probate Code (UPC) 'in its entirety' in 1972, the UPC's                                                                                                                    

commentary is 'instructive in interpreting the Alaska probate statutes.' "                                                                                                                   Hester v.   

Landau, 420 P.3d 1285, 1287-88 (Alaska 2018) (citations omitted).                                                                                                           

                 9               AS 13.26.132.  


                 10              See, e.g., Abby D. v. Sue Y. , 378 P.3d 388, 392 (Alaska 2016) (holding that  


to overcome biological-parent preference in custody dispute between parent and any  


third party, " 'the non-parent must show that it clearly would be detrimental to the  


child['s welfare] to permit the parent to have custody,' that the parent is unfit, or that the  


parent has abandoned the child" (quoting Turner v. Pannick, 540 P.2d 1051, 1054-55  



                                                                                                        -8-                                                                                               7312

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

 court rejected the first two grounds in Michael's case.                                                                                                                                                                                                                                        It held that the Browns had "not                                                                                                                     

 shown by clear and convincing evidence that Michael [was] an 'unfit' parent."                                                                                                                                                                                                                                                                                                                                                         As for   

 abandonment, the court found that Michael abandoned Kevin "for substantial periods of                                                                                                                                                                                                                                                                                                                                                                            

 time since 2010" but did not abandon him "totally." It concluded, on the other hand, that                                                                                                                                                                                                                                                                                                                                                               

 the Browns                                                   did  prove abandonment by clear and convincing evidence as to Mindy, and                                                                                                                                                                                                                                                                                                                    

we infer from this that the court did not find abandonment proven as to Michael.                                                                                                                                                                                                                                                                                                                                                                  

                                                                        The   remaining   ground   for   finding   all   of   Michael's   parental   rights  

 "suspended by circumstances," as the superior court defined the phrase, is that it would                                                                                                                                                                                                                                                                                                                                           

be detrimental to Kevin's welfare to be placed in Michael's custody.  The court found                                                                                                                

 this circumstance to exist. Finding that the Browns were Kevin's psychological parents,                                                                                                                                                                                                                                                                                                                                           

 it reasoned that "it would be devastating for [Kevin] emotionally and psychologically to                                                                                                                                                                                                                                                                                                                                                                          

 go to New York to live with Michael and be separated from the Browns" because of his                                                                                                                                                                                                                                                                                                                                                                        

 closeness to the Browns (and his half-sister Faith, also in their care) and his lack of a                                                                                                                                                                                                                                                                                                                                                                            

 close relationship with Michael and his family in New York.                                                                                                                                                                                                                                                                           

                                                                        We conclude, however, that "detriment to the child's welfare" alone does                                                                                                                                                                                                                                                                                                    

not   support   a   finding   that   a   parent's   custodial   rights   have   been  suspended   by  

 circumstances   for   purposes  of   a   guardianship   appointment.     Like   other   courts,   we  

 conclude that the phrase "suspended by circumstances" "must contemplate some set of                                                                                                                                                                                                                                                                                                                                                                              

 circumstances   which   deprives   a   parent   of   the   ability  to   accept   the   rights   and  

                                                                                                                                                                        11   The focus of this inquiry is not on the child's welfare  

responsibilities of parenthood."                                                                                                                                                                                                                                                                                                                                                                                                    

but rather on the parent's ability to parent; that the child might do better with a different  


 custodian does not mean that the parents have lost their custodial rights.  


                                    10                                  (...continued)  


 (Alaska 1975))).  

                                    11                                 In re Guardianship of J.S.L.F.                                                                                                                                 , 826 N.W.2d 916, 920 (N.D. 2013);                                                                                                                                                           see also   

In re Guardianship of Copenhaver                                                                                                                                                           , 865 P.2d 979, 984 (Idaho 1993).                                                                                                                

                                                                                                                                                                                                                                -9-                                                                                                                                                                                                                 7312

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

                             We have addressed the phrase "suspended by circumstances" twice since                                                                             

AS 13.26.132 was enacted.  In  R.R. v. State we rejected a claim that the language was   

unconstitutionally vague, concluding that "the statute merely sets out circumstances                                                                       

under which a guardian can be appointed; the definition of such circumstances is found                                                                                        

                                                           12     In Jude M. v. State, Department of Health and Social  

elsewhere in the statutes."                                                                                                                                                 

Services, Office of Children's Services, we held that a father's custodial rights were  


suspended by circumstances while his daughter, who had been adjudicated a child in  


need of aid, was in the custody of the Office of Children's Services (OCS).13                                                                                                     We  


observed that "suspended" was not defined in AS 13.26.132 and turned to a dictionary  


definition: "To 'suspend' rights means to temporarily prevent their exercise."14  We held  


that although the father retained residual rights under AS 47.10.084(c) while his child  


was in OCS custody, his custodial rights were suspended by circumstances because  


subsection (a) of the statute imposed "on OCS the daily custodial responsibilities that  


would otherwise be the parent's" and prevented the father from exercising the custodial  


rights that OCS had assumed.15  


                             Other courts have more  directly addressed the issue raised here.   The  


 Supreme  Court  of  Idaho  interpreted  a  guardianship  statute  identical  to  Alaska's  in  


 Guardianship of Copenhaver, concluding that " '[s]uspended by circumstances' must  


               12            919 P.2d 754, 758 (Alaska 1996),                                        overruled on other grounds by Evans v.                                            

McTaggart, 88 P.3d 1078 (Alaska 2004).                                      

               13            394 P.3d 543, 550-51 (Alaska 2017).  


               14            Id. at 551 n.25 (" 'Suspend' means '[t]o interrupt; postpone; defer' or '[t]o  


temporarily keep (a person) from performing a function . . . or exercising a right or  


privilege.' ") (quoting Suspend, BLACK 'S  LAW  DICTIONARY  (10th ed. 2014)) (alterations                                                                          


in original).               

               15            Id. (citing AS 47.10.084(a)).  


                                                                                         -10-                                                                                  7312

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

contemplate some set of circumstances which deprives a parent of the ability to accept                                                                           


the rights and responsibilities of parenthood."                                                                                                                         

                                                                                              The case involved a mother who had left  




her two children with the Irwins, long-time "friends and babysitters of the minors." 


The Irwins had exercised sole custody of the children for months while the mother was  


living transiently, struggling with alcohol and drug abuse, and unable to provide for the  

                                         18     The magistrate granted  the Irwins' petition  for  a permanent  


children  financially. 



                           On  appeal  the  Idaho  Supreme  Court  began  by  rejecting  the  mother's  


argument that the guardianship order effectively terminated her parental rights; the court  


noted the differences between termination and guardianship proceedings and stated that  


"[a] guardianship proceeding is not meant to adjudicate custody of minors."20   The court  


went on to observe that "[t]he paramount consideration in any dispute involving the  


custody and care of a minor child is the child's best interests."21                                                               But at the same time,  


                           [i]n  custody  disputes  between  a  "non-parent"  (i.e.,  an  


                           individual  who  is  neither  legal  nor  natural  parent)  and  a  


             16            865 P.2d at 984.                  In 1999 the Idaho legislature amended the guardianship                                 

statutes   and   replaced   the   "suspended   by   circumstances"   language   with   a   list   of  

circumstances - including neglect, abuse, abandonment, or inability to provide stable                                                                             

home environment - a court must find before appointing a guardian.                                                                           See   1999 Idaho   

Sess. Law ch. 123,  1 (H.B. 76).                          

             17           Id. at 981.  


             18           Id. at 980-81, 984.  


             19           Id.  

             20           Id. at 982 (citing In re Guardianship of Diamond, 707 P.2d 520, 522 (Idaho  




             21           Id. at 983 (emphasis in original) (quoting Stockwell v. Stockwell, 775 P.2d  


611, 613 (Idaho 1989)).  


                                                                                   -11-                                                                            7312

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

                                 natural   parent,   Idaho   courts   apply   a   presumption   that   a  

                                 natural parent should have custody as opposed to other lineal                                                                          

                                 or collateral relatives or interested parties. This presumption                                                       

                                 operates to preclude                               consideration of the best interests of the                                                

                                 childunless                   thenonparentdemonstrateseitherthat                                                           thenatural   

                                 parent has abandoned the child, that the natural parent is unfit                                                                          

                                 or that the child has been in the nonparent's custody for an                                                                                   

                                 appreciable period of time.                                        [22]  

                                 From these general custody rules the court distilled "the proper order of  


inquiry" in a contested guardianship proceeding involving a parent and non-relatives.23  


The court must first "apply the presumption that [the parent] should have custody as  


opposed to the [non-relative proposed guardians]."24                                                                                 If "this presumption is overcome  


by a showing that parental rights have been suspended by circumstances," only then  


should the court "ask whether the requested appointment will serve the welfare and best  


interests of the [child]."25                                      If it will, then the court should make the appointment.26  


                                 As for what is meant by "suspended by circumstances," the Idaho Supreme  


Court noted - as we did in Jude M.  - that the guardianship statutes "provide no  


guidance"; instead it extracted "a reasonable interpretation of the phrase" from other  



cases.              These addressed situations in which "a parent's whereabouts were unknown and  


                 22              Id.  (emphasis added) (quoting                                              Stockwell, 775 P.2d at 613).

                 23              Id.

                 24              Id.

                 25              Id.

                 26              Id.

                 27              Id. at 984.  


                                                                                                      -12-                                                                                                7312

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


the parent was not providing care for the child";                                 "the parent either abandoned the child                

or [was] unfit to care for the child";                      29 or the parent had "consented to the appointment  

                        30   On the other hand, a parent's right to custody would not be "suspended  



of a guardian." 

by circumstances" when the parent had the "child in lawful custody, [was] present and  



[had] not relinquished physical custody." 


                      In  the  case  before  it,  the  Idaho  court  noted  that  despite  the  mother's  


difficulties she had made it clear "that she no longer desired to leave the children with  

the Irwins and that she was willing and capable of caring for them."32   The court held that  


these facts did not support a finding that the mother's rights had been suspended by  


circumstances.33              Therefore, the magistrate's "findings regarding the children's living  


situation, school enrollment, financial support and contact with their mother" - all  


relating to the children's best interests - "no longer had any bearing"; they related only  


to the second step in the analysis, which a court could reach only after the presumption  


in favor of the mother had been overcome by a finding that her custodial rights had been  


           28         Id.  (citing  In  re  Guardianship  of  Diamond,  707  P.2d  520,  522  (Idaho  App.  


           29         Id.  (citing  In  re  Krystal  S.,  584  A.2d  672,  674  (Me.   1991)).  

           30         Id.  (citing   Stansell  v.  Superior  Court  in  and  for  Maricopa  Cty.,  607  P.2d  

959,  960-61  (Ariz.   1980)  (en  banc)).  

           31         Id. (citing In re Guardianship of Lupe C., 812 P.2d 365, 369 (N.M. App.  




           32         Id.  

           33         Id. at 985.  


                                                                     -13-                                                              7312

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 suspended.34  The court reversed the magistrate's decision and remanded the case "for                                                                                                                                                  

 an order terminating the guardianship and returning the children immediately to the                                                                                                                                                                      

 custody of their mother."                                                  35  


                                         Other courts have interpreted the same statutory language in essentially the  


 same way, focusing on conduct of the parent: abandonment, unfitness, or consent to the  

                                         36           The  fact  that  the  child  is  attached  to  a  non-parent  -  even  a  


psychological parent, as in this case - and is doing well in the non-parent's care does  


not operate to suspend the natural parent's custodial rights.37  


                    34                  Id.  

                    35                  Id.  

                    36                  E.g.,   Guardianship   of Zachary   Z.,   677   A.2d   550,   553   (Me.   1996)   ("A  

 finding that parental rights have been terminated  by  circumstances  may be established  

by circumstances of abandonment or  unfitness to  parent.");  In  re Guardianship  of  Jordan  

M., 820  N.W.2d  654,  661  (Neb.  App.  2012)  ("[A]n  individual  who seeks  appointment  

 as guardian of a minor child over the objection of a biological or adoptive parent bears                                                                                                                                                           


the burden of proving by clear and convincing evidence that the biological or adoptive                                                                                                                                                    

parent is unfit or has forfeited his or her right to custody.");                                                                                                                             In re Guardianship of                                           

Ashleigh R.                         , 55 P.3d 984, 988 (N.M. App. 2002) ("[A] parent's custodial rights have                                                                                                                                         

been 'suspended by circumstances' only                                                                                  when (1) the parent consents to the                                                                   appointment  

 of a guardian or (2) the parent's whereabouts are unknown.");                                                                                                                                 In re Guardianship of                                          

J.S.L.F., 826 N.W.2d 916, 920 (N.D. 2013) (considering                                                                                                                 Guardianship of Copenhaver                                                              's  

 definition of "suspended by circumstances" persuasive);                                                                                                                 see also In re Guardianship &                                                        

 Conservatorship of J.C.                                                , 157 P.3d 1130, 1134-35 (Mont. 2007) (implying that clear and                                                                                                                   

 convincing evidence of either unfitness or abandonment would satisfy "suspended by                                                                                                                                                                         

 circumstances" standard).   

                    37                   Cf. Jude M. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 394 P.3d 543, 551 (Alaska 2017) (rejecting argument that "any child custody  


 order granting 'one parent sole legal and physical custody' suspends the noncustodial  


parent's rights").  


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

                          Like the Idaho Supreme Court in                                    Guardianship of Copenhaver                                , we hold     

that when a parent opposes a non-parent's petition for guardianship of a minor, "the                                                                             

                                                                        38   First, the court must apply the biological-parent  

proper order of inquiry" is as follows.                                                                                                  

                      39   The preference may be overcome only if all the parent's "rights of custody  


have been terminated or suspended by circumstances or prior court order."40  The phrase  


"suspended by circumstances" contemplates "some set of circumstances which deprives  


a parent of the ability to accept the rights and responsibilities of parenthood."41  Notably,  


this is a different test for overcoming the biological-parent preference than applies in the  


usual context of a custody dispute between parents and non-parents, where the court may  


consider - in addition to unfitness and abandonment - whether "it clearly would be  


detrimental to the child['s welfare] to permit the parent to have custody."42                                                                      The child's  


welfare may certainly be considered when it is  the parent's conduct  that poses the  


potential detriment.                       But this falls within "parental unfitness," and in this case the  


superior court expressly rejected such a finding, concluding that the Browns had not  


                                                                             43  The focus of the court's discussion of Kevin's  

proven that Michael was an unfit parent.                                                                                                                   


             38           865 P.2d at 983-84.       

             39           Id.  at 983;         see Abby D. v. Sue Y.                    , 378 P.3d 388, 392 (Alaska 2016) ("In its                                   

initial resolution of a custody dispute between a biological parent and any third party,  


including a grandparent, the court must prefer the biological parent.").                                                

             40           AS  13.26.132; Guardianship of Copenhaver, 865 P.2d at 983.  


             41           Guardianship of Copenhaver, 865 P.2d at 984.  


             42           Abby D., 378 P.3d at 392 (quoting Turner v. Pannick, 540 P.2d 1051, 1053- 


54 (Alaska 1975)).  


             43           We note that courts disagree about whether a court may lawfully make a  


determination of parental  fitness in the course of deciding a guardianship petition  or  



                                                                                 -15-                                                                           7312

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

welfare was the significance of his attachment to the Browns on the one hand and lack                                                                                                                    

of attachment to Michael on the other. The result of that weighing exercise - the child's                                                                                                          

supposed preference for one family over the other - cannot mean Michael's loss of "all                                                                                                                    

parental rights of custody."                

                                As the second step of the inquiry in a guardianship proceeding, if the court                                                                                           

has already found by clear and convincing evidence that all the custodial rights of the                                                                                                                    

parent have been suspended, then the court must determine whether the appointment                                                                                                   

                                                                                                   44   If these requirements are met, then the court  

would be in the best interests of the child.                                                                                                                                                           

may make the appointment.45  


                                We conclude, therefore, that in this case the superior court erred when it  


relied solely on detriment to Kevin's welfare to determine that all of Michael's parental  


rights of custody had been suspended by circumstances.   We accordingly vacate the  


guardianship order and remand to the superior court with instructions to grant Michael's  


motion to dismiss the Browns' petition.  


                43               (...continued)  


whether such a finding must be made elsewhere, in child custody and child in need of  


aid proceedings.  Compare In re Guardianship of J.S.L.F., 826 N.W.2d 916, 920 (N.D.  


2013) (holding "that a guardianship proceeding is an inappropriate method to test the  


fitness of [a] parent" because "the guardianship provisions of the Uniform Probate Code  


were not intended to replace the previously existing law regarding custody"), with In re  


Guardianship & Conservatorship of J.C., 157 P.3d 1130, 1135 (Mont. 2007) (holding  


that  the  probate  code  "does  allow  a  district  court  to  determine,  in  a  guardianship  


proceeding, that a parent's rights are suspended by circumstances" and affirming the  


court's finding that "[g]iven the clear and convincing evidence that [the mother] was not  


fit to care for her children, the court was justified in concluding that her parental rights  


weresuspendedby circumstances despite[her]belated assertion ofher custodialrights.")  


The issue is not before us on this appeal.  

                44              AS 13.26.143; see also Guardianship of Copenhaver, 865 P.2d at 983.  


                45              AS 13.26.143; see also Guardianship of Copenhaver, 865 P.2d at 983-84.  


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

V.                                   CONCLUSION  

                                                                          WeVACATEthesuperior court'sordergrantingtheBrowns' guardianship                                                                                                                                                                                                                                                                                 

petition and REMAND to the superior court with instructions to grant Michael's motion                                                                                                                                                                                                                                                                                                                                                                    

to dismiss the petition.                                                         

                                                                                                                                                                                                                                                       -17-                                                                                                                                                                                                         7312

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