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D.K. v. Alaska Dep't. of Health & Social Services (4/17/98), 956 P 2d 477
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.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of )
) Supreme Court No. S-7643
) Superior Court No.
A Minor Under the Age of ) 1JU-93-25A-CP
Eighteen (18) Years, )
D.K., ) O P I N I O N
Appellant, ) [No. 4970 - April 17, 1998]
STATE OF ALASKA, DEPARTMENT )
OF HEALTH AND SOCIAL )
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Douglas K. Rickey, Furlong &
Rickey, Juneau, for Appellant. Jan A. Rutherdale, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
I. FACTS AND PROCEEDINGS
D.K. and R.C., respectively the father and mother of
H.C., lived together for eight months with R.C.'s four-year-old
son, M.C. Five months after the relationship ended, and R.C. moved
out, she gave birth to H.C. Until H.C. was one year old, R.C. had
sole custody of H.C.; she denied D.K.'s paternity. At that time,
D.K. obtained a court declaration that he was H.C.'s father. Three
days prior to entry of D.K.'s paternity order, the Division of
Family and Youth Services (DFYS) filed a Petition for Adjudication
of Child In Need of Aid (CINA) and for temporary placement of H.C.
After a hearing, the superior court issued an order giving the
State temporary custody.
At D.K.'s request, DFYS permitted D.K. to have supervised
visitation with H.C. for one hour, twice a month, in the DFYS
Juneau field office. DFYS admitted that it did not plan to place
H.C. with D.K. permanently, but it requested information from D.K.
to evaluate the possibility of "increased visitation and an
increased active parental role."[Fn. 1] DFYS requested "(1) a
recent psychological evaluation; (2) documentation of how [D.K.]
planned to care for H.C.'s basic needs [including a scheduled home
visit by a social worker to assess the appropriateness of the
living conditions]; (3) information on how he would provide day
care; and (4) evidence of his parenting ability." Later, DFYS
filed an amended petition for CINA adjudication and temporary
placement for H.C., alleging that D.K. was unable to care for H.C.
In its petition, DFYS stated that D.K. had a history of mental
illness and domestic violence against R.C., prior felony
convictions involving weapons, no suitable housing, and that D.K.
had failed to demonstrate an ability to meet H.C.'s basic needs.
D.K. submitted to DFYS two psychological evaluations --
one conducted by Dr. John Kesselring and one by Dr. Anthony Mander.
[Fn. 2] He attempted to enroll in parenting classes at Parent Aid
in Juneau, [Fn. 3] and he continued to visit H.C. The superior
court held a CINA hearing at which D.K. admitted that H.C. was a
child in need of aid, and that he was unable to care for her at
that time. Two months later, D.K. moved to Hyder, and eventually
to El Paso, Texas. D.K. did not notify DFYS or leave a forwarding
address when he left Juneau. In Texas, D.K. met with Dr. Garry
Feldman, a licensed clinical psychologist. While D.K. was in
Texas, a disposition hearing on the CINA adjudication was held and
H.C. was committed to state custody under AS 47.10.080(c)(1). [Fn.
4] H.C. was then only twenty-seven months old. One year later,
DFYS petitioned to terminate D.K.'s parental rights under
AS 47.10.080(c)(3), [Fn. 5] alleging that D.K. had had no contact
with H.C. for over one year and had abandoned her. D.K. was still
living in Texas and had not seen H.C. since leaving Juneau.
In a January 1996 hearing, DFYS presented four witnesses
to support its position that D.K.'s parental rights should be
terminated: Diane Sly, an interventionist with the Infant Learning
Program; Dr. Mander, the Juneau psychologist who had evaluated D.K.
in 1993; Joanne Gibbens, the DFYS social worker who had handled
H.C.'s case between March 1993 and April 1994; and Ileta Iler, the
DFYS social worker assigned to the case after August 1994. D.K.
presented three witnesses in his defense: Jake Lofton, a family
friend who had observed D.K.'s parenting skills; Diane Downs,
D.K.'s roommate of six months in Juneau; and Dr. Feldman, the El
Paso psychologist who had spent ten sessions with D.K. The trial
court terminated D.K.'s parental rights after the hearing. [Fn. 6]
D.K. appeals the superior court's order. [Fn. 7]
A. Standard of Review
We will reverse a trial court's factual findings in
terminating parental rights only if they are "clearly erroneous,"
meaning that we are "left with the definite and firm conviction
that a mistake has been made." E.J.S. v. State, 754 P.2d 749, 750
n.2 (Alaska 1988) (cited in A.M. v. State, 891 P.2d 815, 820
B. Did the Trial Court Clearly Err in Terminating D.K.'s
A court may terminate parental rights under
AS 47.10.080(c)(3) if it finds by clear and convincing evidence
that a child is in need of aid under AS 47.10.010(a) [Fn. 8] as a
result of parental conduct, and that the parental conduct is likely
to continue if there is no termination of rights. See A.M., 891
P.2d at 819. D.K. admitted that H.C. was a child in need of aid.
The State then had the burden of proving "the existence of grounds
for termination by clear and convincing evidence." Id. at 820; see
also AS 47.10.080(c)(3); CINA Rule 15(c).
1. Is H.C. a child in need of aid as a result of
A child is in need of aid as a result of parental conduct
when, inter alia, one parent has physically abandoned the child
and the other parent has voluntarily relinquished his or her
parental rights. See former AS 47.10.010(a)(2)(A)(iii)(renumbered
as AS 47.10.010(a)(1)(C)). R.C. voluntarily relinquished her
parental rights to H.C. Therefore, if the court properly found
that D.K. physically abandoned H.C., then H.C. is a child in need
of aid as a result of parental conduct. This court has developed
a two-pronged test to determine whether a child has been physically
abandoned: "(1) whether the parent's conduct evidenced a disregard
for his or her parental obligations, and (2) whether that disregard
led to the destruction of the parent-child relationship." E.J.S.,
754 P.2d at 750-51; see also Nada A. v. State, 660 P.2d 436, 439
a. Did D.K.'s conduct evidence a disregard for
his parental obligations to H.C.?
The first prong of the abandonment test concentrates on
the parent's "objective conduct . . . in discharging [his or her]
parental responsibility." E.J.S., 754 P.2d at 751. The court does
not consider "the parent's subjective intent, or . . . the
'parent's wishful thoughts and hopes for the child.'" Id. (quoting
D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973)). A parent has an
"'affirmative duty . . . [to show] continuing interest in the child
and [to make] a genuine effort to maintain communication and
association'"; token efforts to communicate with a child will not
satisfy this duty. Id. (quoting In re Burns, 379 A.2d 535, 540
At first D.K. followed DFYS's suggestions in order to
increase his parental participation with H.C. He visited H.C.
under supervision at the DFYS field office. The social worker who
observed D.K. during these visits described him as "very nurturing"
and "calm in his manner." He was examined by two psychologists,
Dr. Mander and Dr. Kesselring. He called Parent Aid to enroll in
parenting classes, and he installed childproof safety devices
around his home in anticipation of unsupervised visitation.
After seven months of visitation, D.K. left Juneau
without leaving a forwarding address or notifying DFYS. He
eventually moved to Texas. He did not try to contact H.C. after
leaving Juneau and moving to Texas. The State argues that D.K.'s
actions constitute abandonment. The State contends that a parent
is required to "maintain communication and association with the
child"and that D.K. failed to do so. D.K. claims that he did not
communicate with H.C. during his absence because "H.C. was less
than two years old at the time he left Juneau, and [he] had only
been allowed very restricted access to H.C. up to that time." The
State maintains that, even at that young age, H.C. could understand
the meaning of "gifts, cards, or brief letters."
D.K. claims that, while in Texas, he "sought the help of
mental health professionals . . . in an effort to satisfy the
State's demand that he deal with his mental problems,"and that
this "demonstrated a regard for [his] parental obligation." The
State suggests that D.K. is asking the court to consider the
"reasons or emotions behind [his] actions"and to ignore his
objective behavior. The State argues that, to refute its evidence
of objective conduct amounting to abandonment, D.K. would have had
to show that he maintained at least some contact with H.C.
The State's argument is persuasive. D.K. might have had
"wishful thoughts and hopes for the child"and their future when he
moved to Texas and began therapy. However, the fact of the matter
is that he left Alaska without leaving any forwarding address and
had no contact with his daughter for over one year.
Additionally, D.K. contends that disregard for parental
obligations must be willful to constitute abandonment. D.K. argues
that his leaving Juneau was not willful conduct. He contends that
avoiding stress is part of his paranoid schizophrenia and therefore
cannot be considered willful. According to D.K.,
Dr. Mander's testimony indicates that he
believed D.K. suffered from a mental condition that, when triggered
by stress and/or fear, caused him to respond by physically removing
himself from the stressful situation. To the extent that D.K.'s
absence from Juneau was a product of that mental condition, and out
of his control, the absence was not necessary (sic) willful.
D.K. relies on Nada A. for the proposition that a parent's absence
must be willful in order to constitute abandonment.
In Nada A., Nada murdered her abusive husband, the father
of her child. See 660 P.2d at 438. She fled Fairbanks while
released on an appellate bond after her sentencing, leaving her
child at a babysitter's house. See id. After nine months Nada
turned herself in and was incarcerated. See id. DFYS had taken
emergency custody of Nada's child and was seeking termination of
her parental rights. See id. The trial court orally referred to
her incarceration as evidence of her abandonment of her child,
although its written findings of fact only referred to her nine-
month abandonment after leaving her child with a babysitter. Nada
argued that "in order to constitute abandonment, the acts of the
parent must be willful"and that "incarceration was beyond her
control." See id. at 439. This court suggested that Nada's
absence from her child due to incarceration was not "willful"and
therefore should not be determined to be abandonment. See id. [Fn.
9] However, this court also concluded that the trial court's
alternative reason -- that she fled the city for nine months and
left her child with a babysitter -- could sustain a finding that
Nada abandoned her child. See id.
The State concedes that "the acts of the parent must be
willful in order to constitute abandonment." However, the State
argues that the applicable analogy to Nada A. is not to Nada's
involuntary incarceration, but to her leaving Fairbanks
unexpectedly and willfully to "escape mounting social pressures."
On this point, this court held that her flight "provide[d]
sufficient objective evidence indicating disregard of parental
obligations"to justify terminating her parental rights. Id.
The State's argument is again persuasive. D.K. has not
persuaded us that the rationale of Nada A. to which the State
points does not apply with equal force to his circumstances. [Fn.
b. Did D.K.'s conduct destroy the parent-child
The second prong of the abandonment test concerns whether
the parent's disregard for his or her responsibilities led to the
destruction of the parent-child relationship. See E.J.S., 754 P.2d
at 750-51. There must be a causal link between the parent's
conduct and the relationship's destruction. See A.M., 891 P.2d at
823 ("The destruction must be brought about by the acts of the
parent . . . ."); see also In re B.J., 530 P.2d 747, 750 n.12
(Alaska 1975). Moreover, "[t]he best interests of the child are
relevant to the [second prong] question, because it is indicative
of a breakdown of the parent-child relationship if the child's best
interests are promoted by legal severance of the relation." In re
B.J., 530 P.2d at 749 (quoting In the Matter of the Adoption of
A.J.N., 525 P.2d 520, 523 (Alaska 1974)).
The superior court found that "there is no parent/child
relationship, and that there never was that relationship." The
court also found that D.K.'s absence from Juneau from April 1994
until the termination hearing "ha[d] destroyed any chance of a
parent-child relationship . . . being developed."
D.K. argues that the trial court's finding is clearly
erroneous, because the State never alleged that D.K.'s conduct had
destroyed all chances of a future relationship between him and H.C.
He points out that "none of the witnesses called by the State
testified that there was no chance of a parent-child relationship
being developed." This argument lacks merit. D.K. misinterprets
the trial court's findings and the applicable abandonment test. It
is not relevant whether D.K. might someday develop a parent-child
relationship with H.C. What is relevant is the relationship
between the parent and the child at the time of the hearing, and
whether the parent's conduct destroyed the relationship. See Nada
A., 660 P.2d at 440 n.4 (holding that the "relevant period [was
that] prior to filing a petition to have [the parent's] rights
It is undisputed that D.K. had no relationship with H.C.
during her first year because R.C. denied D.K.'s paternity and kept
them apart. During the seven months that D.K. had visitation with
H.C., [Fn. 11] the child began to recognize him and smiled when she
saw him. However, Ileta Iler, the social worker handling H.C.'s
case for the State, testified that by the time of the termination
trial H.C. "never talked about"D.K. and had no memory of his
The State contends that D.K. destroyed whatever chance he
had to develop a parent-child relationship with H.C. when he failed
to continue visitation at the DFYS office and moved to Texas.
The superior court found that, because of D.K.'s absence
from Juneau after March 1994, no relationship exists between D.K.
and H.C. The finding that D.K.'s disregard of his parental
obligations destroyed any chance of having developed a parent-child
relationship is not clearly erroneous.
The superior court's determination that H.C. is a child
in need of aid as a result of parental conduct is affirmed.
2. Is D.K.'s conduct likely to continue?
After a trial court has determined that a child is in
need of aid as a result of parental conduct, it must determine
whether that conduct is likely to continue. See A.M., 891 P.2d at
825; see also Nada A., 660 P.2d at 440. The superior court found
"clear and convincing evidence that the parental conduct which
causes [H.C.] to be a child in need of aid is likely to continue if
the parental rights of [D.K.] are not terminated."
D.K. argues that he has begun to confront his mental
illness through his work with Dr. Feldman, thereby decreasing the
chance that his paranoid behavior will affect H.C. He states that
this contradicts the superior court's finding of clear and
convincing evidence that his conduct will continue. D.K. began
seeing Dr. Feldman before the State filed its petition to terminate
D.K.'s parental rights. Dr. Feldman saw D.K. ten times and
concluded that D.K. "was willing to accept help." D.K. contends
that he built a "trusting relationship"with Dr. Feldman, something
he did not have with Dr. Kesselring or Dr. Mander in Juneau, a
place where D.K. felt "threatened."
Dr. Mander testified that D.K. would need psychological
treatment before he could have the responsibility of caring for
H.C. Dr. Mander concluded that, without treatment, D.K. would be
likely to continue to disappear in the face of stressful
situations. The superior court found that D.K. has refused to
acknowledge and accept treatment for his problem. That refusal
kept the court "from being able to find that [D.K.] is able to
provide for a child." The court also found that D.K.'s doctor in
Texas, Dr. Feldman, was an "advocate [for D.K.] in this matter"and
that D.K. went to Dr. Feldman "not for treatment and therapy but
for support and to [have him] testify."
Dr. Mander and Dr. Kesselring testified that, without
treatment, D.K. would likely react to stress by physically leaving
the area. Although Dr. Feldman's testimony was more supportive of
D.K.'s position, the court found that Dr. Feldman's testimony was
not as trustworthy as that of the other two doctors. The court
found that D.K. had not begun treatment for his mental disorder and
had only gone to Dr. Feldman to receive support and to have him
testify on D.K.'s behalf. The superior court did not clearly err
in finding that D.K.'s conduct was likely to continue.
3. Did the trial court clearly err when it found H.C.
to be a child in need of aid under AS 47.10.010(a)(2)(C)?
D.K. argues, and the State agrees, that the superior
court erred when it found that H.C. was a child in need of aid
under former AS 47.10.010(a)(2)(C). [Fn. 12] The superior court
noted that D.K.'s "history of assaultive conduct and paranoid
behavior . . . affects his ability to provide a safe and stable
home for [H.C.]"and found that "[w]ithout treatment, there is an
imminent and substantial risk that [she] would suffer substantial
physical harm if she were placed in [his] care." There was no
evidence, however, that H.C. had ever suffered any physical harm
from D.K. No testimony warned of future physical harm -- only a
"frightening,""harmful,"and "nomadic"lifestyle if H.C. was
placed with D.K. The State concedes that "there is insufficient
evidence to support a finding that [H.C.] would be in imminent and
substantial risk of substantial physical harm"if placed in D.K.'s
We conclude that the superior court clearly erred when it
found H.C. to be a child in need of aid under former
AS 47.10.010(a)(2)(C). The court's decision to terminate parental
rights does not rest solely on this finding, however, and thus we
need not reverse that decision. [Fn. 13]
We AFFIRM the trial court's finding that H.C. is a child
in need of aid as a result of parental conduct under former
AS 47.10.010(a)(2)(A)(iii), and that said conduct is likely to
continue. We AFFIRM the termination of D.K.'s parental rights. We
REVERSE the finding that H.C. is a child in need of aid under
former AS 47.10.010(a)(2)(C).
Concurrently, DFYS provided services to R.C. with the goal of
reunifying H.C. with her mother. R.C. had access to the "AWARE
shelter; Public Health; the Infant Learning Program and other
services offered by REACH, including services to help obtain
housing, social security income, and the supported living program;
the family resource specialist through the Division of Mental
Health and Developmental Disabilities; and the Parent Family
Center." These services were ultimately unsuccessful, and R.C.
voluntarily terminated her parental rights. DFYS's evaluation of
D.K. provided that he must address his mental illness before such
support services could benefit him.
Dr. Mander concluded that D.K. was likely suffering from a
paranoid mental disorder, probably paranoid schizophrenia, and that
"it was inadvisable to allow D.K. custody unless his illness could
be managed." He said that D.K. did "not accept the diagnosis of
mental illness"and could not "deal with highly stressful
situations in a functional manner." Dr. Kesselring agreed with Dr.
Mander's diagnosis, and recommended that DFYS not allow D.K. to
parent H.C. until D.K. has had intensive therapy for an extended
period of time and his parenting ability is then reassessed.
D.K. states that he was "rebuffed in his attempt to enroll in
parenting classes." Parental Aid in Juneau would not enroll D.K.
in classes unless he first completed counseling regarding anger
AS 47.10.080(c)(1) states in part:
(c) If the court finds that the minor is a
child in need of aid, it shall
(1) order the minor committed to the
department for placement in an appropriate setting for a period of
time not to exceed two years . . . .
AS 47.10.080(c)(3) states in part:
(c) If the court finds that the minor is a
child in need of aid, it shall
. . . .
(3) by order, upon a showing in the
adjudication by clear and convincing evidence that there is a child
in need of aid under AS 47.10.010(a) as a result of parental
conduct and upon a showing in the disposition by clear and
convincing evidence that the parental conduct is likely to continue
to exist if there is no termination of parental rights, terminate
parental rights and responsibilities of one or both parents and
commit the child to the department . . . .
DFYS simultaneously petitioned for the termination of R.C.'s
parental rights with respect to H.C. and her other child, M.C.
R.C. voluntarily relinquished her parental rights to her children,
and an order terminating her parental rights followed.
In his statement of points on appeal, D.K. raised six issues.
However, his brief argues only that the State failed to present
clear and convincing evidence on three issues: (a) that H.C.
needed aid because of D.K.'s parental conduct within the meaning of
former AS 47.10.010(a)(2)(A) (see infra note 8); (b) that H.C.
needed aid because she had suffered substantial physical harm
within the meaning of former AS 47.10.010(a)(2)(C); and (c) that
any adverse parental conduct by D.K. was likely to continue. We
deem the other three issues abandoned. See Kodiak Elec. Ass'n,
Inc. v. DeLaval Turbine, Inc., 694 P.2d 150, 153 n.4 (Alaska 1984)
(holding that even though the issue was included in appellant's
points on appeal statement, the issue was abandoned because
appellant failed to adequately brief it).
Former AS 47.10.010(a)(2)(A)(iii) provided in part:
(a) Proceedings relating to a minor . . . are
governed by this chapter . . . when the court finds the minor
. . . .
(2) to be a child in need of aid as a
(A) . . . having no parent,
guardian, custodian, or relative caring or willing to provide care,
including physical abandonment by
. . . .
(iii) one parent if the other
parent's rights and responsibilities have been . . . voluntarily
This subsection was renumbered AS 47.10.010(a)(1)(C) in September
1996, after the superior court ruled in this case.
After that suggestion a justice commented in a concurrence
that "AS 47.10.080(c)(3), by its express terms, does not permit the
superior court to consider . . . incarceration when determining
whether to terminate parental rights." Nada A. v. State, 660 P.2d
436, 442 (Alaska 1983) (Compton, J., concurring). There was
similar dicta in a 1995 case. See A.M. v. State, 891 P.2d 815, 829
& n.8 (Alaska 1995). The legislature in 1996 "responded to [this]
Court's invitation . . . to create a statutory basis for making
[involuntary] incarceration a factor that can be considered in
termination proceedings . . . ." Ch. 89, sec. 1, SLA 1996
new AS 47.10.080(o)).
One could distinguish the present case from Nada A. on the
ground that the evidence here tended to show that D.K.'s departure
from Juneau was impelled by his mental illness, whereas in Nada A.
the evidence showed only an impulsive departure from town motivated
by "mounting social pressures." Nada A., 660 P.2d at 439. Yet
none of the evidence concerning D.K.'s mental illness suggested
that he was so profoundly impaired as to lack capacity for willful
conduct. Even if the evidence could be interpreted as showing that
D.K.'s mental illness made his departure from Juneau essentially
involuntary, this would not explain his year-long failure to
contact H.C., her foster parents, or DFYS. Notably, the
explanation D.K. currently offers for his prolonged loss of contact
has nothing to do with mental illness or lack of willfulness: in
his brief, D.K. justifies his failure to contact H.C. by suggesting
that she was simply too young for meaningful communication. This
explanation tacitly concedes that D.K.'s post-departure failure to
communicate with his daughter reflected voluntary conduct and was
not the product of his mental illness.
D.K. visited H.C. nine times in the seven months that he lived
in Juneau and was allowed supervised visitation with H.C. He did
not see her between March 11, 1994, when H.C. was about twenty-two
months old, and January 18, 1996, when the termination trial began.
Former AS 47.10.010(a)(2)(C) states in part:
(a) Proceedings relating to a minor . . . are
governed by this chapter . . . when the court finds the minor
. . . .
(2) to be a child in need of aid as a
. . . .
(C) the child having suffered
substantial physical harm or if there is an imminent and
substantial risk that the child will suffer such harm as a result
of the actions done by or conditions created by the child's parent,
guardian, or custodian or the failure of the parent, guardian, or
custodian adequately to supervise the child.
This section was renumbered AS 47.10.010(a)(3) in September 1996,
after the ruling in this case.
The trial court had already found that H.C. was a child in
need of aid under former AS 47.10.010(a)(2)(A)(iii).