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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Office of Public Advocacy v. Superior Court, Third Judicial District (5/1/2020) sp-7448
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
OFFICE OF PUBLIC ADVOCACY, )
) Supreme Court No. S-17330
Petitioner, )
) Superior Court No. 3PA-18-00204 CN
v. )
) O P I N I O N
SUPERIOR COURT, THIRD JUDICIAL )
DISTRICT, )
No. 7448 - May 1, 2020
)
Respondent. )
)
or Review from the Superior Court of the State of
Petition f
Alaska, Third Judicial District, Palmer, Kari Kristiansen,
Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Petitioner. Dunnington Babb, Cashion Gilmore LLC,
Anchorage, for Respondent. Renee McFarland, Assistant
Public Defender, and Beth Goldstein, Acting Public
Defender, Anchorage, for Public Defender Agency. Maria
Bahr, Assistant Attorney General, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for Office of Children's
Services.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
The primary issue in this child in need of aid (CINA) proceeding is whether
a putative father's parentage may be judicially established by "sufficient evidence"
presented to the superior court - or must be established by scientific, genetic testing -
to allow appointment of public agency counsel to the putative father in a CINA
proceeding. We conclude that a judicial determination of paternity does not necessarily
need underlying scientific, genetic testing in this context, and we affirm the superior
court's decision.
II. FACTS AND PROCEEDINGS
A. Emergency Custody
In early December 2018 Jan K. gave birth to Ada K. in Anchorage.1 Within
a few days the Office of Children's Services (OCS) took emergency custody of Ada2 and
filed an emergency petition to adjudicate her as a child in need of aid.3 OCS's petition
identified Ralph W. as Ada's father. OCS indicated Jan had reported that Ralph was the
"biological father" and that he "had intended to be at the hospital for the birth."
OCS asserted in its petition that Jan and Ralph did not reside together, but
that both lived in Wasilla. OCS indicated that Ralph had "presented at the office and
wanted a paternity test done." According to OCS, Ralph said he had known Jan for
"approximately one year"; Ralph "was aware of the pregnancy and was certain that he
was the father and wanted the child to be placed with him." OCS also asserted that
1 Pseudonyms are used to protect the parties' privacy.
2 See AS 47.10.142 (authorizing OCS to take emergency custody of child).
3 See AS 47.10.142(c) ("If the department determines that continued custody
is necessary to protect the child, the department shall notify the court of the emergency
custody by filing, within 24 hours after custody was assumed, a petition alleging that the
child is a child in need of aid.").
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Ralph said he had been present at all of Jan's prenatal appointments and they planned to
marry. According to OCS, Ralph explained he had not been present at the birth because
Jan had been unable to call him, and no one else had called him. OCS noted that Ralph
took a paternity test that day.
B. CINA Proceedings
The superior court held an emergency temporary custody hearing
4
concerning Ada the next day.
Jan and Ralph were present and identified themselves as
Ada's mother and father. When asked whether they wanted lawyers, Jan and Ralph
answered affirmatively; OCS then argued that Ralph was a "putative father" and that the
court could not appoint a lawyer for him until his paternity was established through the
previous day's paternity test, although the results were not expected for approximately
two weeks.
To obtain "testimony about the appointment of counsel," the court placed
Jan and Ralph under oath and inquired about their financial circumstances and
relationships to Ada. After confirming that the Public Defender Agency represented Jan
in other proceedings and that her financial situation had not substantially improved, the
court appointed the Agency to represent Jan. The court determined Ralph also was
financially eligible and asked more questions regarding paternity:
The Court: Are you on the birth certificate?
Jan: We didn't get to fill out the paperwork -
Ralph: Yeah. I didn't -
Jan: - before [Ada] was removed. I'm not even on the birth
certificate, as far as I know.
4 See AS 47.10.142(d) (requiring court to hold temporary custody hearing
within 48 hours of when court is notified of emergency custody of child alleged to be in
need of aid).
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----------------------- Page 4-----------------------
The Court: Okay.
Ralph: Yeah. I wasn't able to make it into Anchorage.
The Court: All right. And [Jan], I'm sorry I don't know the
answer to this question. Are you married to anybody else
currently?
Jan: No.
The Court: Okay. So you're not married. And do you
believe [Ralph] is the father?
Jan: Oh, yes.
Ralph: Oh, yeah.
The Court: And [Ralph], you believe you're -
Ralph: Yeah, there's no doubt.
The Court: - the father? I understand a paternity test has
been taken, but there's nobody else who would - who is
claiming to be the father and there's no one else who would
be the legal father of this child, so I'm going to appoint the
father a public defender at this point.
The public defender in court indicated that the Office of Public Advocacy (OPA) would
have to substitute as counsel for Ralph because of the Agency's conflict in representing
Jan and that it was unclear how OPA would respond.
That same day the court ordered appointment of counsel for Ralph in the
CINA proceedings. When the parties next returned to court, Jan's public defender
informed the court that OPA had refused to stipulate to a substitution of counsel. The
public defender indicated that OPA believed the previous testimony was insufficient to
establish Ralph's paternity.
The initial superior court judge was preempted and a second superior court
judge then held a hearing to "clarify [Ralph's] appointment." After learning that Jan and
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----------------------- Page 5-----------------------
Ralph had testified under oath to their belief that Ralph was the father, the court issued
an order directly appointing OPA to represent Ralph. The court stated:
And [OPA] can file a motion with the court, but my position
in these cases has always been that I'm not going to wait for
a DNA test to tell the court . . . whether somebody is
verifiably a father or not if the parents are willing to
affirmatively state so under oath. I don't think that parents
should have to wait to get counsel appointed to represent
them, and I don't -
. . . .
- think it's the court system's duty to do that either.
Jan's public defender agreed that doing so "better preserve[d] [the] father's
constitutional rights" and validated Ralph's concerns about the first few weeks with a
child being "very important." Ralph asked the court about the soonest date Ada could
be placed with him. OCS indicated that it was still waiting for the paternity test results
and "looking into [Ralph's] background."
At a mid-December hearing OPA's deputy director appeared in an
administrative capacity and stated OPA's position that, despite the previous paternity
testimony, without paternity test results appointment of counsel is "not authorized" for
a "putative father." OPA's deputy director explained that the court could appoint
5 counsel for Ralph and that OPA could take the case once
Administrative Rule 12(e)
positive paternity test results were received. The court responded:
[I]f parents have, under oath, both testified that they believe
that the father, although he's not actually been DNA-tested,
the results are not in, and they're not married, that based on
that testimony, that that's . . . sufficient evidence to show that
5 See Alaska Admin. R. 12(e)(1), (5) (providing for constitutionally required
appointment of counsel at court system expense when appointment of Public Defender
Agency or OPA is not authorized).
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----------------------- Page 6-----------------------
in this case [Ralph] is the father based on the record that's
before the court.
And I know that you disagree with this, and the court
should have [Rule] 12(e) counsel, but I disagree with your
view. And so that's why OPA has been directly appointed
because I know they won't take the appointment from the
[Public Defender Agency]. So -
. . . .
- OPA will have to get him an attorney.
Ralph reiterated that he wanted Ada placed with him"as quick as possible,"
and Jan's public defender stated that Jan also wanted "to see placement for now with
[Ralph]." But like OPA, OCS indicated that it deemed Ralph a putative father; OCS
would not place Ada with him without paternity test results. Ralph reiterated, "Oh, I
know I'm the father. There's no - there's no doubt in my mind or her mind that I am
the father." The court explained that placement would need to be addressed at a hearing
when Ralph had legal representation. The court reiterated the paternity evidence was
"sufficient" and distinguished between OCS and the court: "While [OCS] may have a
position that says, look, we don't place children with parents that have not been
established through a DNA test . . . it doesn't mean that the court can't take a different
position . . . ."
OPA's deputy director and Jan's public defender requested a 30-day
6 but the court refused. The court noted that
continuance for the probable cause hearing,
CINAprobable cause hearings are supposed to be "expeditiously" addressed and that the
CINA Rules do not authorize such a lengthy delay. A hearing was set for early January.
6 See AS47.10.142(e) (requiring courtto "determinewhether probablecause
exists for believing the child to be a child in need of aid, as defined in AS 47.10.990").
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----------------------- Page 7-----------------------
Ralph was represented by an OPA attorney at the January hearing. No
paternity test results had been received. The parties nonetheless stipulated, subject to the
pending paternity test results, that Ada be placed with Ralph and that "if it turns out that
[Ralph] is not the father, [OCS] will have the authority to immediately remove [Ada]."
OPA petitioned for our discretionary review of the court's appointment
order. Within a week the paternity test results had excluded Ralph as Ada's father, and
an order disestablishing paternity subsequently was entered. Despite the issue being
moot, we granted OPA's petition for review to clarify the appointment of counsel in this
7
context.
III. STANDARD OF REVIEW
"We apply our independent judgment when interpreting the statutes
8 When
governing appointment of counsel and our administrative and procedural rules."
engaging in statutory interpretation, we adopt "the rule of law that is most persuasive in
light of precedent, reason, and policy."9
7 See Office of Pub. Advocacy v. Superior Court, Second Judicial Dist. , 3
P.3d 932, 933 (Alaska 2000) ("We granted discretionary review in this case to clarify
who is entitled to appointed counsel in such cases, and because the issue might otherwise
evade review.").
8 Id .
9 Jude M. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
394 P.3d 543, 550 (Alaska 2017) (quoting Tessa M. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 182 P.3d 1110, 1114 (Alaska 2008)); see also
Sabrina V. v. Dep't of Health & Soc. Servs., Office of Children's Servs., 442 P.3d 717,
721 (Alaska 2019) ("When interpreting CINA statutes and rules, we apply our
independent judgment, 'adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.' " (quoting Danielle A. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 215 P.3d 349, 353 (Alaska 2009))).
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----------------------- Page 8-----------------------
IV. DISCUSSION
A. Agency Enabling Statutes And Court Rules
In CINA proceedings indigent parents are appointed counsel pursuant to
10 11
CINA Rule 12(b), following the process set out in Administrative Rule 12. Under
Rule 12(a) the court must "specifically" determine that the appointment is "clearly
authorized by law or rule" and that a person is indigent. Appointments are governed by
12 13
three sources: the Agency's enabling statute, OPA's enabling statute, and, when a
constitutionally required appointment is not authorized under either enabling statute,
14
Rule 12(e).
We have recognized that the enabling statutes authorize the agencies to
15 Alaska
"represent indigent persons entitled to representation in CINA proceedings."
Statute18.85.100(a) allowsthecourt to appoint theAgency for an "indigent person" who
10 CINA Rule 12(b) provides that the "court shall appoint counsel pursuant
to Administrative Rule 12."
11 Alaska Administrative Rule 12(a) provides that the "court shall appoint
counsel . . . only when the court specifically determines that the appointment is clearly
authorized by law or rule, and that the person for whom the appointment is made is
financially eligible for an appointment at public expense."
12 AS 18.85.100 (defining Public Defender Agency's authority to provide
counsel to indigent litigants); see also Alaska Admin. R. 12(b) (outlining appointment
procedure for Public Defender Agency).
13 AS44.21.410 (definingOPA's powers and duties); seealso AlaskaAdmin.
R. 12(c) (outlining appointment procedure for OPA).
14 Alaska Admin. R. 12(e)(1), (5) (outlining appointment procedure for
Alaska Bar Association members at court system expense, referred to as 12(e) counsel).
15 Office of Pub. Advocacy v. Superior Court, Second Judicial Dist., 3 P.3d
932, 934 (Alaska 2000).
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----------------------- Page 9-----------------------
is "entitled to representation under the Supreme Court Delinquency or [CINA] Rules."
And under AS 44.21.410(a)(5), OPA shall "provide legal representation . . . in cases
involving indigent persons who are entitled to representation under AS 18.85.100 and
who cannot be represented by the . . . [A]gency because of a conflict of interests." The
foremost question then is whether a person is entitled to representation under
AS 18.85.100; in the CINA context this generally depends on whether that person is
16
"entitled to representation under" the CINA Rules.
CINA Rule 12(b)(1) provides that a "court shall appoint counsel . . . for a
parent or guardian who is financially unable to employ counsel." OPA's argument
focuses on the scope of Rule 2(k)'s definition of "parent" as a "biological or adoptive
parent whose parental rights have not been terminated." OPA argues for a strict
construction of "biological" parent. OPA concludes that, when there is an unresolved
paternity test, any paternity determination is legally insufficient in light of the CINA
Rules' definition of a parent. We thus examine whether public agency representation of
a putative father is clearly authorized in a CINA proceeding when the court, without
genetic evidence, determines the putative father to be a parent.
B. Statutory Interpretation
In statutory interpretation "we consider three factors: 'the language of the
statute, the legislative history, and the legislative purpose behind the statute.' "17 We use
16 AS 18.85.100(a); AS 44.21.410(a)(5).
17
Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414
P.3d 630, 634 (Alaska 2018) (quoting Oels v. Anchorage Police Dep't Emps. Ass'n, 279
P.3d 589, 595 (Alaska 2012)).
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----------------------- Page 10-----------------------
a sliding scale: "the plainer the statutory language is, the more convincing the evidence
of contrary legislative purpose or intent must be." 18
1. Plain meaning
The CINA statutes and the CINARules similarly define "parent" to include
19
a biological parent, but neither defines the term "biological parent." OPA's suggested
interpretation requires scientific proof of a genetic relationship. But the CINA Rules
prescribe no "specific procedure" for paternity determinations, indicating that the Rules
20
do not override other relevant statutes relating to paternity. And OPA cites nothing
establishing a categorical rule requiring scientific evidence to establish paternity.
Alaska law provides a number of ways to establish a parent-child
relationship. Alaska's legitimation statute, AS 25.20.050, provides for paternity
establishment without scientific evidence - by subsequent marriage, written
acknowledgment of paternity, or a superior court's paternity determination upon
21 The legitimation statute allows a court to weigh the results of a
"sufficient evidence."
18 Alaska Tr., LLC v. Bachmeier , 332 P.3d 1, 7 (Alaska 2014) (quoting W.
Star Trucks, Inc. v. Big Iron Equip. Serv., Inc. , 101 P.3d 1047, 1050 (Alaska 2004)).
19 AS 47.10.990(26) (defining "parent" as "the biological or adoptive parent
of the child"); CINA Rule 2(k) (defining "parent" as "a biological or adoptive parent
whose parental rights have not been terminated").
20 See CINA Rule 1(g) ("Where no specific procedure is prescribed by these
rules, the court may proceed in any lawful manner . . . . Such a procedure may not be
inconsistent with these rules and may not unduly delay or otherwise interfere with the
unique character and purpose of [CINA] proceedings.").
21 Paternity may be established when "the putative parent subsequently
marries the undisputed parent of the child; . . . the putative father and the mother both
sign a form for acknowledging paternity under AS 18.50.165; or . . . the putative parent
is determined by a superior court without jury or by another tribunal, upon sufficient
(continued...)
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----------------------- Page 11-----------------------
genetictest against other evidence, but evenstatistically high genetictest resultsestablish
22
only a rebuttable presumption of paternity.
Under the statute the court has discretion
23 this discretion is especially
to adjudicate parentage without ordering genetic testing;
valuable because testing delays or non-compliant putative parents may disrupt a CINA
proceeding's expeditious nature.24
We further note that the legislative definition of "biological parent" under
AS 18.50.950 of the Vital Statistics Act is a "parent named on the original certificate of
birth of an adopted person."25 Although in a different context, this statute was enacted
close in time to the CINA Rules and addresses related subject matter:26 the legislature
21 (...continued)
evidence, to be a parent of the child." AS 25.20.050(a).
22 AS 25.20.050(d); see Smith v. Smith , 845 P.2d 1090, 1092 (Alaska 1993);
see also In re Estate of Seward, 424 P.3d 333, 337 (Alaska 2018) ("[A] 95% probability
only creates a presumption of parentage that may be rebutted by clear and convincing
evidence.").
23 The legitimation statute requires the tribunal to order genetic testing when
"paternity is contested," upon the request of the child support services agency, or a party
with a sworn statement. AS 25.20.050(e)(1)-(2). But, even under these narrow
circumstances, testing is not required if the court "finds that good cause exists not to
order genetic testing after considering the best interests of the child." AS 25.20.050(i).
24 See Rubright v. Arnold, 973 P.2d 580, 583-85 (Alaska 1999) (affirming
parentage determination on merits and as sanction in paternity action after putative father
refused to comply with genetic testing).
25 AS 18.50.950(2).
26 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW : THE
INTERPRETATION OF LEGAL TEXTS 172-73 (2012) ("[T]he presumption of consistent
usage can hardly be said to apply across the whole corpus juris . . . . But the more
connection the cited statute has with the statute under consideration, the more plausible
(continued...)
-11- 7448
----------------------- Page 12-----------------------
27
added definitions of "biological parent" and "adoptive parent" in 1986, not long before
the CINA Rule defining "parent" as a "biological or adoptive parent" was adopted in
28 29
1987. Alaska Statute 18.50.950 provides the controlling definitions for vital statistics
statutes relating to parentage determinations - including acknowledgments of
30 31 32
paternity, marriage registration, and birth registration. The birth registration statute,
AS 18.50.160, allows listing a father on a birth certificate without scientific evidence of
33
a genetic relationship. This statutory definition, relying directly on the name listed on
26 (...continued)
the argument becomes. If it was enacted at the same time, and dealt with the same
subject, the argument could even be persuasive.").
27 See ch. 140, § 3, SLA 1986 (current version at AS 18.50.950).
28 See Alaska Supreme Court Order No. 845 (July 16, 1987).
29 Vital statistics "means records of birth, death, fetal death, induced
termination of pregnancy, marriage, divorce, adoption, and related data."
AS 18.50.950(18).
30 AS 18.50.165.
31 AS 18.50.270.
32 AS 18.50.160.
33 The statute outlines two processes for entering a father's name on the birth
certificate, depending on the mother's marital status. If the mother was married at
conception, during the pregnancy, or at birth, her husband is entered on the birth
certificate as the father in most circumstances. If the mother was unmarried, a father
may be entered on the birth certificate if a tribunal has lawfully determined his paternity
or if both he and the mother execute affidavits acknowledging his paternity.
AS 18.50.160(d)-(e); see also Ray v. Ray, 115 P.3d 573, 576 (Alaska 2005) (interpreting
AS 18.50.160(d) as establishing marital presumption that husband is father of child born
to wife during marriage, absent clear and convincing evidence to contrary).
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----------------------- Page 13-----------------------
thebirth certificate,thus indicates that the term"biological parent" does not categorically
34
require scientific evidence.
Our constructionofpaternityunder theIndianChildWelfareAct(ICWA)35
36 Because
also demonstrates that scientific proof of a genetic relationship is not required.
ICWA provides no standard for establishing paternity, courts resolve the issue under
state law.37 We see no reason to construe the similar use of the term "biological parent"
in the CINA Rules differently as rigidly requiring scientific proof when a court
establishes paternity in a non-ICWA proceeding.
2. Rule history and purpose
OPA presents no convincing statutory or rule history or intent definitively
requiring scientific evidence of a genetic relationship to be a parent. And it is contrary
to the expeditious nature of CINA proceedings to read CINA Rule 2(k)'s definition as
establishing a specific procedure requiring scientific evidence before appointment of
counsel.38 Allowing a court to timely resolve paternity "upon sufficient evidence" best
34 See AS 18.50.950(2).
35 25 U.S.C. § 1903(9) (2018) (" '[P]arent' means any biological parent or
parents of an Indian child or any Indian person who has lawfully adopted an Indian child,
including adoptions under tribal law or custom. It does not include the unwed father
where paternity has not been acknowledged or established.").
36 See Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011) (determining that
putative father who requested genetic testing to no avail, but otherwise made reasonable
efforts to acknowledge paternity, qualified as parent under ICWA).
37 In re Daniel M., 1 Cal. Rptr. 3d 897, 900 (Cal. App. 2003) (citing In re
Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988); Yavapai-Apache
Tribe v. Mejia, 906 S.W.2d 152, 171-73 (Tex. App. 1995)).
38 See CINA Rule 1(c) ("These rules will be construed and applied to promote
(continued...)
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39
comports with the CINA Rules' construction. According to the National Council of
Juvenile and Family Court Judges guidelines, "[t]imely resolution of paternity issues is
both in the best interests of the child and essential to avoiding delays at subsequent points
in the court process." 40
We also are informed by the Agency's and OCS's practices demonstrating
that scientific evidence is not definitively required. The Agency indicates in its briefing
to us that when considering its authorization to accept an appointment to represent a
parent in a CINA proceeding, it does not require the court to scientifically confirm the
biological relationship. OCS's practice also is instructive because OCS must determine
the identity of a child's parent when assuming custody of a child.41 OCS looks to the
"child's birth certificate to ascertain the child's paternity," and "will verify that paternity
is not in question by asking both the mother and the father who is listed on the birth
38 (...continued)
fairness, accurate fact-finding, the expeditious determination of children's matters, and
the best interests of the child.").
39 See id.; see also AS 25.20.050(a)(4) (allowing superior court to adjudicate
putative parent as parent "upon sufficient evidence").
40 SOPHIE I. G ATOWSKI, ET AL., N AT 'L COUNCIL OF JUV. & F AM. C OURT
JUDGES, ENHANCED RESOURCE GUIDELINES : IMPROVING COURT PRACTICE IN CHILD
ABUSE AND NEGLECT CASES 82 (2016); see also ALASKA OFFICE OF CHILDREN 'S
SERVICES, CHILD PROTECTIVE SERVICES MANUAL § 2.5.1 (rev. Nov. 15, 2013)
ANUAL] ("Timely identification of parents is critical for child's
[hereinafter CPS M
permanence and well-being.").
41 See AS 47.10.020(b)(4) (stating that petition for adjudication of child as in
need of aid must include "the names and addresses of the child's parents"); see also CPS
MANUAL § 2.5.2 at Background Information B(1) ("When a petition for a finding that
a child is a child in need of aid is filed, the child's parent(s) must be notified of the
proceedings.").
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----------------------- Page 15-----------------------
42
certificate if he is the father." OCS considers paternity to be in question if the mother
alleges "someone other than the person named on the birth certificate is the father,
someone other than the individual named claims paternity," the individual denies
paternity, "no father is named on the birth certificate or in CSSD records," or "paternity
43 OCS also allows a three-party "affidavit of
was established through a default order."
paternity" as an alternative to the birth certificate when a mother who was married at the
time of the child's birth names a man other than her husband as the putative father.44
3. Conclusion
We do not interpret CINA Rule 2(k)'s definition of "parent" to
categorically require scientific, genetic evidence to establish parentage. The term's plain
meaning, the rule's history, the construction of the CINA Rules, and agency practice
support no rigid rule requiring scientific proof to establish parentage in CINA
proceedings. Without any predicate foundation, we cannot forge such a rule at the risk
of contravening the expeditious nature of CINA proceedings. Alaska's legitimation
statutedirectlyaddressesacceptableevidenceand thecircumstances whengenetictesting
is required for a court to adjudicate parentage.45
In light of precedent, reason, and policy, we hold that CINA Rule 2(k)'s
definition of "parent" includes a person determined by the superior court to be a parent,
even absent scientific evidence, so long as there otherwise is sufficient evidence. If, in
a CINA proceeding, a court adjudicates an indigent putative parent as a parent upon
sufficient evidence, even absent scientific evidence, the court may appoint public agency
42 CPS M ANUAL, § 2.5.1 at Procedure A(1)-(2).
43
Id. at Procedure A(3)(a)-(e).
44
Id. at Procedure A(5).
45
See AS 25.20.050.
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----------------------- Page 16-----------------------
counsel pursuant to Administrative Rule 12, the enabling statutes, and the CINA Rules.
If later genetic evidence leads to disestablishment of an individual as the biological
parent, the appointed agency shall then move to withdraw under Administrative
46
Rule 12.
C. This Court Appointment
We next address the superior court's paternity determination and
subsequent appointment order for OPA in this case. OPA does not challenge the court's
finding that Ralph was indigent. Determining whether the court erred by appointing
public counsel thus depends on whether it erred in its paternity determination.
OPA first argues that because the superior court allowed paternity testing
to proceed, the court did not actually make a determination that Ralph was the father.
But the record clearly shows that the court did make a paternity determination.
OPA next challenges the sufficiency of evidence for the court's
determination under Alaska's legitimation statute, AS 25.20.050. When the court made
its paternity determination, the evidence before it included Jan's and Ralph's sworn
testimony that Ralph was Ada's father. But OPA characterizes both Jan's and Ralph's
testimony as "weak threaded" and maintains that the court failed to probe for further
clarification. Contrary to OPA's contention, the court did make factual probes regarding
Ada's birth certificate, Jan's marital status, and Jan's and Ralph's certainty regarding
paternity. At the first hearing the court heard that Jan was not married, the birth
certificate named no father (and possibly no mother), and that both Jan and Ralph were
certain Ralph was the father. The court noted no other person was claiming to be Ada's
father or could claim to be her father by virtue of marriage. At one subsequent hearing
46 Alaska Admin. R. 12(d); see Office of Pub. Advocacy v. Superior Court,
Second Judicial Dist. , 3 P.3d 932, 935 (Alaska 2000) ("Rule 12(d) imposes an obligation
on the agency, not the court.").
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----------------------- Page 17-----------------------
the testimony from the first hearing was referenced, Ralph again expressed certainty
about his paternity, and the court stated there was "sufficient" evidence to establish
paternity. We agree the evidence was legally sufficient. 47
V. CONCLUSION
We AFFIRM the superior court's decision.
47 AS 25.20.050(a)(4) ("Acceptable evidence includes evidence that the
putative parent's conduct and bearing toward the child, either by word or act, indicates
that the child is the child of the putative parent. That conduct may be construed by the
tribunal to constitute evidence of parentage. When indefinite, ambiguous, or uncertain
terms are used, the tribunal may use extrinsic evidence to show the putative parent's
intent.").
-17- 7448
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