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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sabrina V. v. State of Alaska, Department of Health and Social Services, Office of Children's Services (5/31/2019) sp-7371

Sabrina V. v. State of Alaska, Department of Health and Social Services, Office of Children's Services (5/31/2019) sp-7371

           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  

                                                                                                                             

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



SABRINA  V.,                                                           )  

                                                                       )     Supreme Court No. S-17188         

                                 Appellant,                            )  

                                                                                                                                         

                                                                       )     Superior Court No. 3PA-16-00092 CN  

           v.                                                          )  

                                                                                                  

                                                                       )     O P I N I O N  

                                        

STATE OF ALASKA, DEPARTMENT                                            )
  

                                                   

OF HEALTH AND SOCIAL SERVICES                                                                                   

                                                                      ,)     No. 7371 - May 31, 2019
  

                                                

OFFICE OF CHILDREN'S SERVICES,  )
  

                                                                       )  

                                 Appellee.                             )  

                                                                       )  



                                    

                                                                                                                 

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

                                                                                              

                      Judicial District, Palmer, Kari Kristiansen, Judge.  



                                                                                                                   

                      Appearances:  Sharon Barr, Assistant Public Defender, and  

                                                                                                         

                      Quinlan Steiner, Public Defender, Anchorage, for Appellant.  

                                                                                                           

                      Mary  Ann  Lundquist,  Senior Assistant  Attorney  General,  

                                                                                                                           

                      Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau,  

                             

                      for Appellee.  



                                                                                                          

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

                                            

                      and Carney, Justices.  



                                          

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      A mother appeals the termination of her parental rights after she signed and  



                                                                                                                             

then attempted to withdraw a voluntary relinquishment of parental rights.  At the time  



                                                                                                                                         

she signed the relinquishment, her child was living with his paternal grandmother, who  


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

hoped to adopt him.                               When it later became clear that the grandmother would not be able                                                                                     



to adopt the child, the mother                                                signed  a notice of her withdrawal of relinquishment                                          



although the ten-day window for withdrawal had passed.                                                                                     Three days later she filed the                                 



notice   in  superior   court.     That   same   day,   apparently   without   being   aware   of   the  



withdrawal notice, the court issued an order terminating the mother's parental rights.                                                                                                                              



The   mother   appeals.    She   argues   that   the   court   retained   discretion   to   allow   her  



withdrawal even though the ten-day period had passed and that termination of her                                                                                                                         



parental rights was not in the child's best interests. Because, assuming the superior court                                                                                                          



had   discretion   to   allow   the   untimely   withdrawal,   it   did   not   abuse   its   discretion   by  



declining to do so, we affirm the termination of her parental rights.                                                                                               



II.             FACTS AND PROCEEDINGS                



                A.              Background  

                                                                                                                                                                                      1     By 2016  

                                 Sabrina V. is the mother of Kaleb D., who was born in 2005.                                                                                               



Kaleb  was  living  in  Wasilla  with  his  father,  who  is  now  deceased.                                                                                                       Sabrina  had  

                                                                                                                                                                                                       



apparently been living outside of Alaska for some years.  It does not appear that the  

                                                                                                                                                                                                         



parents had a court order regarding Kaleb's custody.  

                                                                                                                                 



                                 Sabrina also has an older daughter, Lizzie, from a previous relationship.  

                                                                                                                                                                                                                    



Lizzie was committed to the custody of the Office of Children's Services (OCS) in  

                                                                                                                                                                                          



September 2014 in an earlier child in need of aid (CINA) case.  In February 2016, after  

                                                                                                                                                                                                      



a successful six-month home visit with Sabrina in Montana, OCS released Lizzie to  

                                                                                                                                                                                                            



Sabrina.  

                      



                B.              Pre-Relinquishment CINA Proceedings  

                                                                                                       



                                Kaleb's father died in April 2016; the cause of death was unknown but may  

                                                                                                                                                                                                        



have been related to complications from a recent surgery.   OCS filed an emergency  

                                                                                                                                                                                      



                1               We use pseudonyms for all family members.  

                                                                                                                     



                                                                                                     -2-                                                                                                      7371  


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

                                                                                                                                                                                                                                                       2  

petition for temporary custody and to adjudicate Kaleb as a child in need of aid.                                                                                                                                                                          The  



petition stated that Kaleb's father had been Kaleb's "sole caregiver."  OCS claimed to                                                                           



have "no current contact information" for Sabrina despite having released Lizzie to her                                                                                                                                                                         



roughly two months earlier; Sabrina later testified that her residence had not changed                                                                                                                                                         



between her reunification with Lizzie and the initiation of CINA proceedings for Kaleb.                                                                                                                                                                                      



At the emergency probable cause hearing an OCS caseworker testified that Kaleb had     



told OCS he had not seen Sabrina in roughly two years and that she "wasn't a good                                                                                                                                                                      



mom."   The court granted OCS temporary custody.                                                                                                                

                                                                                                                                                                                                                                                             3     In  

                                         OCS apparently found contact information for Sabrina by June 2016.                                                                                                                                                       

an August 2016 predisposition report4 OCS stated that, when contacted, Sabrina had said  

                                                                                                                                                                                                                                                              



she was unable to care for Kaleb because she was about to move from Montana to  

                                                                                                                                                                                                                                                                  



Washington. In late August the court adjudicated Kaleb in need of aid and granted OCS  

                                                                                                                                                                                                                                                           



custody pending disposition.  By September 2016 OCS had begun to investigate two of  

                                                                                                                                                                                                                                                                   



Kaleb's paternal relatives to determine if they could adopt him.  Because the relatives  

                                                                                                                                                                                                                                               



lived in Oklahoma, OCS was working with its counterpart there pursuant to the Interstate  

                                                                                                                                                                                                                                              

Compact on the Placement of Children (ICPC).5  

                                                                                                                                                      



                                                                                                                      6  

                                         At thedisposition hearing  thefollowingmonththecourt foundthat Sabrina  

                                                                                                                                                                                                                                                   



had not yet established a relationship with Kaleb and had "made very little effort to stay  

                                                                                                                                                                                                                                                             



                     2                   See  AS  47.10.142  (governing  emergency  custody);  CINA  Rule  6.  



                     3                   Despite   this,   the   court's   temporary   custody   order, issued   in   July   2016,  



found  that  "OCS  made  efforts  to  locate  [Sabrina]  but  her  whereabouts  are  unknown."   



                     4                   See   AS   47.10.081   (requiring   OCS   to   file   predisposition   report   prior   to  



disposition  hearing);  CINA  Rule   16(a)  (listing  required  parts  of  predisposition  report).  



                     5                   Codified at AS 47.70.010.  

                                                                                         



                     6                   See AS 47.10.080(c); CINA Rule 17.  

                                                      

                                                                                                                                                  



                                                                                                                                 -3-                                                                                                                      7371
  


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

in   contact   with   him when                      she   left   Alaska."     The   court   also   found   that   because   of  



Sabrina's history of drug use and involvement with OCS, it would be contrary to Kaleb's                                                             



best interests to place him with her.                               The court committed Kaleb to OCS's custody for     



                              7  

up to two years.                 



                         Around  June  2017  OCS  changed  the  primary  goal  for  Kaleb  from  

                                                                                                                                                        



reunification with Sabrina to adoption.   Kaleb was then living in Oklahoma with a  

                                                                                                                                                               



paternal uncle, who OCS hoped would be able to adopt him.  At a permanency hearing  

                                                                                                                                                    



in  August,  Sabrina's  attorney  reported  that  the  parties  had  negotiated  a  consent  to  

                                                                                                                                                              

adoption.8            Sabrina later signed the consent to adoption by Kaleb's paternal uncle, and  

                                                                                                                                                           



the court approved it in January 2018.  

                                                                         



                         In February 2018 OCS petitioned to terminate Sabrina's parental rights.  

                                                                                                                                                                    



The petition alleged that Sabrina "ha[d] not engaged in any of the identified case plan  

                                                                                                                                                          



activities [or] maintained consistent contact" with OCS despite "consistently stat[ing] . . .  

                                                                                                                                                                 



her desire to reunify" with Kaleb.  In March the guardian ad litem reported that Kaleb's  

                                                                                                                                                   



uncle would not be able to adopt Kaleb and that he had been moved to his paternal  

                                                                                                                                                   



grandmother's  home.                           His  grandmother  also  lived  in  Oklahoma  and  OCS  was  

                                                                                                                                                         



considering her as a possible adoptive parent.  

                                                                                       



             C.          Proceedings Relating To The Relinquishment And Withdrawal  

                                                                                                                               



                         Sabrinasignedavoluntary relinquishment ofher parental rights on May30,  

                                                                                                                                                             

2018, and filed it with the court on June 14.9   The relinquishment acknowledged that the  

                                                                                                                                                             



             7           See  AS  47.10.080(c)(1).   



             8           See  AS  25.23.040-.070  (governing  consents  to  adoption);  AS 47.10.084(c)  



(providing  that  parent  whose  child  has  been  placed  in  OCS's  custody  but  whose  parental  

rights  have  not  been  terminated  retains  right  to  consent  to  adoption).  



             9           See  AS  47.10.089  (providing  for  voluntary  relinquishment  of  parental  

                                                                                                                                                  

                                                                                                                                        (continued...)  



                                                                              -4-                                                                       7371
  


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

grandmother's adoption of Kaleb depended upon a positive home study and Kaleb's                                                                                                                                                                              



living with her for six months before the adoption; Sabrina retained the privilege to be                                                                                                                                                                                      



notified if the adoption would not proceed. The relinquishment stated that Sabrina could                                                                                                                                                                             



withdraw it "for any reason" within ten days after signing it, and that after ten days the                                                                                                                                                                                  



court could order her parental rights terminated at any time if it found termination to be                                                                                                                                                                                     



in Kaleb's best interests. The relinquishment also provided that, after a termination order                                                                                                                                                                           



was signed but before the entry of an adoption or legal guardianship decree, Sabrina                                                                                                                                                                         



could   seek   a   review   hearing   to  reinstate   her   parental   rights.     The   relinquishment  



incorporated the statutory standards governing such a review hearing:                                                                                                                                                                         to have the                  



termination   order   vacated,   Sabrina   would   have   to   show,   by   clear  and   convincing  



evidence, that reinstatement would be in Kaleb's best interests and that she had been                                                                                                                                                                                 



                                                                                                                                                                                                                                            10  

rehabilitated from the issues that led to termination of her parental rights.                                                                                                                                                                     



                                           In late June 2018 OCS filed a permanency report stating that Kaleb's  

                                                                                                                                                                                                                                                            



grandmother's homewas now"seen as ashort-termplacement given [thegrandmother's]  

                                                                                                                                                                                                                                     



medical  needs."                                               The  report  explained  that  Oklahoma's  ICPC  home  study  had  

                                                                                                                                                                                                                                                                        



determined that her health made her unsuitable to adopt Kaleb.  

                                                                                                                                                                                                              



                                           Sabrina received a copy of the permanency report shortly after it was filed;  

                                                                                                                                                                                                                                                                      



this seems to have been her first notice that the grandmother would not be able to adopt  

                                                                                                                                                                                                                                                                    



Kaleb.                      On  June  29,  2018,  Sabrina  signed  a  notice  that  she  was  withdrawing  her  

                                                                                                                                                                                                                                                                          



relinquishment  of  parental  rights.                                                                                        The  notice  stated  that  she  had  "signed  the  

                                                                                                                                                                                                                                                                          



relinquishment with the understanding that the permanent plan for [Kaleb was] adoption  

                                                                                                                                                                                                                                                          



by [his] paternal grandmother."  It also stated that Sabrina "[did] not believe it [was] in  

                                                                                                                                                                                                                                                                                



                      9                    (...continued)  



                         

rights).  



                      10                   See  AS47.10.089(h) (outlining                                                                     requirements for reviewhearingtoreinstate                                                                     



parental rights after termination based upon relinquishment).                                                                                  



                                                                                                                                       -5-                                                                                                                            7371
  


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

 [Kaleb]'s    best    interests    to    be    a    legal  orphan"    and    would    have    withdrawn    the  



relinquishment earlier if she had known of the grandmother's inability to provide a                                                                                                                                        



permanent adoptive placement.                                                       



                                  Although Sabrina signed the Notice of Withdrawal and served it on the                                                                                                               



parties on June 29, it was not logged as filed with the court until July 2.  She suggests  



that this was likely due to the fact that June 29, 2018, fell on a Friday, when Alaska                                                                                                                      

                                                                                                    11   Also on July 2, and apparently without being  

courts and court offices closed at noon.                                                                                                                                                                        



aware of the Notice of Withdrawal, the court ordered termination of Sabrina's parental  

                                                                                                                                                                                                          



rights to Kaleb.  Neither Sabrina nor her counsel was present at a hearing addressing  

                                                                                                                                                                                                   



permanency the following day, as the court had found that based on the relinquishment  

                                                                                                                                                                                        



and termination, Sabrina was not entitled to notice of the hearing.  

                                                                                                                                                                           



                                   Sabrinamoved for reconsideration on July11. Sheargued that"[t]heCINA  

                                                                                                                                                                                                               



statutes do not directly speak to whether a parent can withdraw [a] relinquishment" more  

                                                                                                                                                                                                                  



than ten days after signing it, but that nothing in the statutes or rules prohibited it.  She  

                                                                                                                                                                                                                    



urged the court to treat her withdrawal as a motion to amend a pleading, for which leave  

                                                                                                                                                                                                                 

should be freely given under Alaska Civil Rule 15(a).12   The court invited OCS and the  

                                                                                                                                                                                                                       



                 11               See   Press Release, Alaska Court System, Office of the Administrative                                                                               



Director, Beginning July 1, 2016 Court System to Close Courts Statewide on Fridays at                                                                                                                                     

Noon to Help Reduce Operating Costs (June 15, 2016), https://public.courts.alaska.gov/                                                       

web/media/docs/fri-closure.pdf;  Palmer, A                                                                     LASKA  COURT   SYSTEM, http://www.courts.   

alaska.gov/courtdir/3pa.htm (last visited Apr. 22, 2019) (listing regular Friday business                                                                                                                

hours for court in Palmer, where Sabrina filed withdrawal notice, as 8:00 a.m. to 12:00                                                                                                                         

p.m.).    



                 12               Alaska  R.  Civ.  P.  15(a)  (providing  that  when  a  pleading  may  not  be  

                                                                                                                                                                                                                       

amended as a matter of course, a party may only amend it "by leave of court or by  

                                                                                                                                                                                                                       

written consent of the adverse party," but that "leave shall be freely given when justice  

                                                                                                                                                                                                              

so requires").  

        



                                                                                                            -6-                                                                                                   7371
  


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

 guardian ad litem to respond; both argued that reconsideration should be denied because                                                                                          



 Sabrina's withdrawal was untimely.                                                



                               On July 25, 2018, the superior court denied reconsideration.                                                                                 The court   



rejected Sabrina's argument that                                         she should be permitted to withdraw the relinquishment                                   



under   Civil   Rule   15(a),   noting  that  both   AS   47.10.089(c)   and   the   terms   of   the  



relinquishment    specifically    provided    for    a    ten-day    deadline    to    withdraw    the  

                                    13     The court also found that the grandmother's disqualification from  

relinquishment.                                                                                                                                                                         



 adopting Kaleb was not a serious change of circumstances that justified allowing late  

                                                                                                                                                                                           



withdrawal of the relinquishment because Sabrina had only retained the right to be  

                                                                                                                                                                                             



notified, and not the right to withdraw her relinquishment, if the adoption was not  

                                                                                                                                                                                           



possible.  

                       



                               Sabrina appeals.  

                                                  



 III.           STANDARD OF REVIEW  

                                                          



                               "We  review  the  denial  of  a  motion  for  reconsideration  for  abuse  of  

                                                                                                                                                                                             

 discretion."14  

                                                                                                                                                                              

                                An abuse of discretion exists if the superior court's decision "is arbitrary,  



                                                                                                                                                                                 15  

                                                                                                                                                              

 capricious, manifestly unreasonable, or . . . stem[s] from an improper motive." 



                               "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,  

                                                                                                                                                                                   



                13            See   AS 47.10.089(c) ("A voluntary relinquishment may be withdrawn                                                                         



within 10 days after it is signed. The relinquishment is invalid unless the relinquishment                                                                        

 contains the right of withdrawal as specified under this subsection.").                                                      



                14            Alaskan Adventure Tours, Inc. v. City &Borough of Yakutat , 307 P.3d 955,  

                                                                                                                                                                                          

 959 (Alaska 2013).  

                                              



                15            Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original)  

                                                                                                                                                                                

 (quoting Morris v. Horn, 219 P.3d 198, 203-04 (Alaska 2009)).  

                                                                                                                                                  



                                                                                               -7-                                                                                      7371
  


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

and policy.' "           16  



IV.         DISCUSSION  



                         Sabrina argues that the superior court should have granted her motion for  

                                                                                                                                                             



reconsideration of its order terminating her parental rights.  She concedes that a parent  

                                                                                                                                                      



"does not have the absolute right" to withdraw a relinquishment more than ten days after  

                                                                                                                                                          



signing it, but she argues that after those ten days and until a termination order is issued,  

                                                                                                                                                     



the superior court retains "the discretion to allow such withdrawal if it is in the child's  

                                                                                                                                  

best interests."17   She points out that, although it was more than ten days after she signed  

                                                                                                                                                      



her relinquishment, she signed and served her Notice of Withdrawal three days before  

                                                                                                     



the court signed the termination order. She argues that the court should have granted her  

                                                                                                                                                            



motion for reconsideration both because it was not aware of her Notice of Withdrawal  

                                                                                                                  



when  it  signed  the  termination  order  and  because  it  retained  jurisdiction  under  

                                                                                                                                                      



AS 47.10.100(a) to modify, set aside, or revoke termination of her parental rights if  

                                                                                                                                                               

doing so was in Kaleb's best interests.18  

                                                                            



                         OCS  responds  that  Sabrina's  purported  withdrawal  was  "ineffective"  

                                                                                                                                         



because it was signed, served, and filed after the ten-day period during which she was  

                             



entitled to withdraw her relinquishment. OCS argues that the relevant statutes and rules  

                                                                                                                                                         



do not permit the court to allow withdrawal of a relinquishment solely on the basis of the  

                                                                                                                                                             



child's best interests, without considering the parent's rehabilitation, during the period  

                                                                                                                                                      



             16          Danielle A. v. State, Dep't of Health & Soc. Servs., Office of Children's                                            



Servs., 215 P.3d 349, 353 (Alaska 2009) (quoting                                            Brynna B. v. State, Dep't of Health &                              

Soc. Servs., Div. of Family & Youth Servs.                                     , 88 P.3d 527, 529 (Alaska 2004)).                                 



             17          See AS 47.10.089(c), (e).  

                                                                          



             18          See AS47.10.100(a) (providing that superior court retains jurisdiction over  

                                                                                                                                                          

CINA case for up to two years unless child turns 19 or case is resolved sooner, and may  

                                                                                                                                                          

set aside or revoke previous judgment or order if doing so is in child's best interests).  

                                                                                                                                                                  



                                                                              -8-                                                                       7371
  


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

after the ten-day window and before termination. It argues that after ten days had passed                                                                                                  



Sabrina's   only   avenues   for   recourse   were   to   obtain   OCS's   written   consent   to   the  



                                                                                                                                                                                                      19  

withdrawal under AS 25.23.180(g) or to seek a review hearing under AS 47.10.089(h).                                                                                                                        



                                                                       

OCS also argues that Sabrina waived her arguments under AS 47.10.100(a) by failing  



                                                                                           20  

                                                                                                 

to raise them before the superior court. 



                                                                                                                                                                            

                A.	            No          Rule             Or           Statute                Clearly                Governs                    Sabrina's                    Attempted  

                               Withdrawal.  



                                                                                                                                                                                         

                               Alaska  Statute  47.10.089  governs  voluntary  relinquishments.                                                                                            Under  



                                                                                                                                                                                                    

subsection (c) of the statute, "[a] voluntary relinquishment may be withdrawn within 10  



                                                                                                                    

days after it is signed."  Subsection (h) provides:  



                                                                                                                                                               

                               After  a  termination  order  is  entered  .  .  .  a  person  who  

                                                                                                                                                           

                               voluntarily relinquished parental rights . . . under this section  

                                                                                                                                                             

                               may request a review hearing, upon a showing of good cause,  

                                                                                                                                                             

                               to vacate the termination order and reinstate parental rights  

                                                                                                                                                               

                               relating to that child. A court shall vacate a termination order  

                                                                                                                                                                  

                               if the person shows, by clear and convincing evidence, that  

                                                                                                                                                                    

                               reinstatement of parental rights is in the best interest of the  

                                                                                                                                                                     

                               child  and  that  the  person  is  rehabilitated  and  capable  of  



                19             AS 25.23.180(g) provides for withdrawal of a relinquishment "if the child                                                                                       



is not on placement for adoption and the person having custody of the child consents in                                                                                                               

writing to the withdrawal." AS 47.10.089(h) provides that a parent who has relinquished                                                                                       

rights may, after a termination order is issued, seek a review hearing to vacate the order                                                                                                    

upon a showing of good cause.                                              



                20             While Sabrina did not directly cite AS 47.10.100(a) in her motion for  

                                                                                                                                                                                                   

reconsideration, she did argue that the superior court had the authority to allow her to  

                                                                                                                                                                                                     

withdraw her relinquishment under a different provision, Alaska Civil Rule 15(a), which  

                                                                                                                                                                                            

governs amendment of pleadings.  Alaska R. Civ. P. 15(a).  But as we discuss below,  

                                                                                                                                                                                          

even assuming that this argument is properly raised on appeal and that AS 47.10.100(a)  

                                                                                                                                                                            

would allow the court to permit late withdrawal of a relinquishment, the court did not  

                                                                                                                                                                                                  

abuse its discretion by declining to do so here.  

                                                                                                              



                                                                                                  -9-	                                                                                        7371
  


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

                           providing the care and guidance that will serve the moral,                                                 

                           emotional, mental, and physical welfare of the child.                                                     [21]  



                           The parties do not dispute that Sabrina's Notice of Withdrawal fell outside  

                                                                                                                                                                



the ten-day period during which she retained a right of withdrawal.   She signed the  

                                                                                                                                                                        



relinquishment on May 30, 2018, and filed it with the court on June 14; the Notice of  

                                                                                                                                                                          



Withdrawal is dated June 29, 2018 - 15 days after the relinquishment was filed.  But  

                                                                                                                  



the court did not order her parental rights terminated until July 2, 2018, three days after  

                                                                                                                                                                      



Sabrina signed the withdrawal notice.  The certificate of service shows that the notice  

                                                                                                                                                                  



was faxed to OCS June 29.   Sabrina's Notice of Withdrawal therefore preceded the  

                                                                                                                                                                        



termination order and thus does not clearly fall within AS 47.10.089(h)'s provisions for  

                                                                                                                                                                         

post-termination review hearings.22  

                                                  



                           Sabrina  argues  that  the  superior  court  had  discretion  to  allow  her  to  

                                                                                                                                                                          



withdraw her relinquishment even if the ten-day period had passed.   She points to  

                                                                                                                                                           



AS  47.10.089(e),  which  provides:                                             "Not  less  than  10  days  after  a  voluntary  

                                                                                                                                                         



relinquishment is signed, the court shall enter an order terminating parental rights if the  

                                                                                                                                                                         



court determines that termination of parental rights under the terms of the relinquishment  

                                                                                                                                                 



is in the child's best interest."  Sabrina contends that this section requires the court to  

                                                                                                                                                                           



conduct a best interests analysis prior to termination and to reinstate parental rights if  

                                                                                                                                                                           



doing so would serve the child's best interests.   She concedes that a parent has no  

                                                                                                                                                                         



"absolute right" to withdraw a relinquishment after ten days, but she argues that the  

                                                                                                                                                                        



superior court retains "the discretion to allow such withdrawal" until a termination order  

                                                                                                                                                                    



             21            AS 47.10.089(h). We note that had the termination order been signed prior                                                                 



to service of Sabrina's withdrawal, this provision would clearly govern this case.                                                                        



             22            See Alaska Adopt. R. 9(g) (providing that notification of withdrawal of a  

                                                                                                                                                                             

consent to adoption or relinquishment may be provided to "the court[] or the person or  

                                                                                                                                                                           

agency obtaining the consent or relinquishment").  

                                                                  



                                                                                   -10-                                                                             7371
  


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

is issued, and that in this case a proper exercise of its discretion would have been to grant                                                          



                                                                                                                            23  

her motion for reconsideration and hold a best interests hearing.                                                                                        

                                                                                                                                  She asserts that  



                                                                                                                                                    

AS 47.10.100(a) authorizes the court to do this because it states that the court retains  



                                                                                                                                                              

jurisdiction for up to two years in a CINA proceeding to modify, set aside, or revoke a  



                                                                                                  24  

                                                                                                      

judgment or order based on the child's best interests. 



                         OCS argues that the court does not have discretion to allow withdrawal of  

                                                                                                                                                            



 a relinquishment solely based on the child's best interests, without considering the  

                                                                                                                                                          



parent's  rehabilitation,  during  the  period  after  the  ten-day  window  and  before  

                                                                                                                                                   



termination. It claims that Adoption Rule 9 and AS 25.23.180(g) govern this period, and  

                                                                                                                                                          



that under these provisions a parent must either obtain consent for the withdrawal from  

                                                                                                                                                       

the agency having custody of the child or establish good cause for a review hearing.25  

                                                                                                                                             



                         The rule and statutes the parties cite do not clearly resolve this case.  Even  

                                                                                                                                                       



 assuming  that  AS  47.10.089(e)  permits  the  court  to  accept  a  late  withdrawal,  the  

                                                                                                                                                          



 subsection does not require the court to do so.  Adoption Rule 9(g), meanwhile, allows  

                                                                                                                                                    



 a parent to "move the court to permit withdrawal of the . . . relinquishment after the 10  

                                                                                                                                                           



day period pursuant to . . . AS 25.23.180(g) or AS 47.10.089(h)."  (Emphasis added.)  

                                                                                                                                                                 



But by its terms AS 47.10.089(h) applies "[a]fter  a termination order is entered and  

                                                                                                                                                         



before the entry of an adoption or legal guardianship decree."  (Emphasis added.)  And  

                                                                                                                                                        



AS        25.23.180(g)                explicitly            limits        itself       to      relinquishments                  executed             under  

                                                                                                                                                   



AS 25.23.180 - that is, in the course of adoption rather than CINA proceedings:  

                                                                                                                               



             23          See  AS  47.10.089(c),  (e).   



             24          See  AS 47.10.100(a)  (providing that  superior  court  retains  jurisdiction  over  



 CINA  case  for  up  to  two  years  unless  child  turns  19  or  case  is  resolved  sooner,  and  may  

 set  aside  or  revoke  previous  judgment  or  order  if  doing  so  is  in  child's  best  interests).   



             25          See Alaska Adopt. R. 9(g); AS 25.23.180(g); AS 47.10.089(h).  

                                                                                                                                               



                                                                            -11-                                                                      7371
  


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

                          Notwithstanding   the   provisions   of   (b)   of   this   section,   a  

                           relinquishment   of   parental   rights   with   respect   to   a   child,  

                           executed under this section                          , may be withdrawn by the parent,                    

                           and   a   decree   of   a   court   terminating   the   parent   and   child  

                           relationship on grounds set out in (c)(1) of this section may       

                           be vacated by the court upon motion of the parent, if the child                                               

                           is   not   on   placement   for   adoption   and   the   person   having  

                           custody of the child consents in writing to the withdrawal or                                                      

                           vacation of the decree.                      [26]  



Sabrina's relinquishment was executed under AS 47.10.089, not under AS 25.23.180,  



so AS 25.23.180(g) does not apply.  Thus none of the rules or statutes cited by either  

                                                                                                                                                                 



party appear to apply to Sabrina's situation.  

                                                                      



             B.	           Assuming  The  Superior  Court  Had  Discretion  To  Accept  A  Late  

                                                                                                                                                                  

                           Withdrawal, It Did Not Abuse Its Discretion By Declining To Do So.  

                                                                                                                                                                      



                           We need not decide what additional hearings or procedures might have  

                                                                                                                                                                   



been allowable because, even assuming the superior court had the discretion to accept  

                                                                                                                                                           



Sabrina's late withdrawal notice, its refusal to do so was not an abuse of discretion.  

                                                                                                                                                                               



Sabrina concedes that the superior court was not required to accept her withdrawal; she  

                                                                                                                                                                       



asserts only that under AS 47.10.089(e) and AS 47.10.100 it "had the discretion" to do  

                                                                                                                                                                        



so  based  on  Kaleb's  best  interests.                                     She  argues  that  it  should  have  exercised  this  

                                                                                                                                               



discretion to hold a hearing on whether termination was in Kaleb's best interests after it  

                                                                                                                                                                          



became clear that his grandmother could not adopt him.  We read this as an argument  

                                                                                                                                                          



that the court abused its discretion by failing to hold such a hearing.  OCS responds that  

                                                                                                                                                                      



granting her a best interests hearing would require trial courts "to conduct a mini- 

                                                                                                                                                                  



termination trial to decide whether the parent's withdrawal should be given effect,"  

                                                                                                                                                              



which would undermine the finality that the ten-day rule aims to provide.  

                                                                                                                                                    



             26            AS  23.25.180(g)  (emphasis  added).   



                                                                                  -12-                                                                                   7371  


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

                     We assume without deciding that the superior court had the discretion to  



grant Sabrina's motion for reconsideration and hold a hearing on whether to permit her  

                                                                                                                                       



to withdraw her relinquishment based on Kaleb's best interests.  A trial court abuses its  

                                                                                                                                        



discretion if it makes a decision that "is arbitrary, capricious, manifestly unreasonable,  

                                                                                                                     

or . . . stem[s] from an improper motive."27   Sabrina does not allege any improper motive,  

                                                                                                                                



so we need only consider whether the superior court acted arbitrarily, capriciously, or  

                                                                                                                                        



unreasonably when it declined to reconsider its termination order or hold a best interests  

                                                                                                                              



hearing.  We conclude that it did not.  

                                                      



                     In its order denying Sabrina's motion for reconsideration, the court first  

                                                                                                                                     



found that the ten-day withdrawal deadline under AS 47.10.089(c) clearly governed  

                                                                                                                            



Sabrina's  attempt  to  withdraw  her  relinquishment.                                  The  court  therefore  found  the  

                                                                                                                                      



withdrawal untimely. The court also emphasized that the relinquishment itself expressly  

                                                                                                                             

incorporated this withdrawal provision, as required by statute.28   The relevant sections  

                                                                                                                 



of the relinquishment stated:  

                                    



                     2.  I may withdraw this relinquishment within 10 days after  

                                                                                                       

                     it is signed for any reason.  I understand that the court will  

                                                                                                                

                     not sign either the order terminating my parental rights or an  

                                                                                                                   

                     adoption decree sooner than ten days after I have signed this  

                                                                                                                 

                     relinquishment. . . .  

                                                    



                      3.  Ten (10) or more days after I sign this relinquishment the  

                                                                                                                  

                     court may enter an order terminating my parental rights if the  

                                                                                                                  

                     court finds that termination of my parental rights . . . is in the  

                                                                                                                 

                     child's best interests.  

                                                         



           27        Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original)           



(quoting  Morris v. Horn               , 219 P.3d 198, 203-04 (Alaska 2009)).                           



           28        See AS 47.10.089(c) (providing that a relinquishment is invalid unless it  

                                                                                                                              

"contains the right of withdrawal as specified under this subsection").  

                                                                                                                  



                                                                  -13-                                                             7371
  


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

Given this language, the court's decision to reject the withdrawal as untimely cannot be                                                                                                                                                                                                           



considered arbitrary or unreasonable.                                            



                                              In addition, the court found that the failure of the planned adoption did not                                                                                                                                                                     



provide   grounds   to   reconsider   termination,   because   the   relinquishment   expressly  



contemplated the possibility that the adoption might fall through.                                                                                                                                                                The court noted that                                        



 Sabrina had not retained the right to withdraw her relinquishment if Kaleb was not                                                                                                                                                                                                           



permanently placed with his paternal grandmother; she had only retained "the privilege                                                                                                                                                                                      



to be notified if placement with [Kaleb's grandmother] no longer [was] available."                                                                                                                                                                                                          The  



court found that OCS had complied with this term "by notifying [Sabrina] on July 23,   



2018, when Oklahoma denied the home study and determined [Kaleb's grandmother]                                                                                                                                                                             



                                                                                                                                                                 29  

was not an appropriate permanent placement."                                                                                                                            



                                              These findings are also not arbitrary, capricious, or unreasonable; like the  

                                                                                                                                                                                                                                                                                                



court's findings on the withdrawal deadline, they comport with both AS 47.10.089 and  

                                                                                                                                                                                                                                                                                              



the relinquishment's language.  The relinquishment stated:  

                                                                                                                                                                                    



                                              The department has decided to place my child for adoption  

                                                                                                                                                                                                                              

                                              with  [his  paternal  grandmother]  in  accordance  with  the  

                                                                                                                                                                                                                                                

                                              permanency plan.  The department must receive a positive  

                                                                                                                                                                                                                             

                                              home study and the child must be in the adoptive home for 6  

                                                                                                                                                                                                                                                         

                                              months before the department can consent to adoption of my  

                                                                                                                                                                                                                                                  

                                              child . . . .  If [his grandmother] becomes unable to care for  

                                                                                                                                                                                                                                  

                                              my child for any reason, I retain the privilege to be notified  

                                                                                                                                                                                                              

                                              that the placement is no longer available.  If the placement is  

                                                                                                                                                                                                                                                       

                                              no longer available, the department will send me a letter by  

                                                                                                                                                                                                                            



                       29                     The superior court's finding that July 23, 2018, was the date OCS notified                                                                                                                                                        



 Sabrina of the failed adoption appears to be based on OCS's response to Sabrina's                                                                                                                                                                                       

motion for reconsideration, in which it stated that it had sent her a letter on July 23 with                                                                                                                                                                                               

the results of Oklahoma's ICPC home study.   We note, however, that Sabrina actually                                                                                                                                                

received notice via the permanency report, which was sent to her on June 27, 2018, two                                                                                                                                                                                                        

days after OCS received the ICPC home study results.                                                                                                                                                This apparent error does not                                                               

render clearly erroneous the court's ultimate finding that Sabrina was promptly notified.                                                                                                                                                                                     



                                                                                                                                               -14-                                                                                                                                       7371
  


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

                           regular and certified mail to tell me that the placement is no                                                         

                            longer available.                   



The relinquishment expressly acknowledged that the adoption might fail as a result of                                                                         



a   negative   home   study   or   the   grandmother's   inability  to  care   for   Kaleb   -   as   it  



subsequently did. While a consent to adoption would have allowed Sabrina to condition                                                                          

                                                                                                                           30   the  relinquishment  was  

her   consent   on   the   grandmother's   ability   to   adopt   Kaleb,                                                                                                  



unconditional, and only retained a privilege to be notified if the adoption fell through.  

                                                                                                                                                                                    



And as the court found, Sabrina was promptly notified via the permanency report.  But  

                                                                                                                                                                           



even  if  she  had  not  been,  AS  47.10.089  provides  that  generally  "[a]  voluntary  

                                                                                                                                                             



relinquishment may not be withdrawn . . . on the ground that a retained privilege has  

                                                                                                                                                                           

been withheld from the relinquishing parent."31  Rather, the parent must request a review  

                                                                                                                                                                    

hearing to seek enforcement of the retained privilege.32  

                                                                                                                   It was therefore reasonable for  

                                                                                                                                                                             



the superior court to conclude that the failure of the adoptive placement did not entitle  

                                                                                                            



Sabrina to be permitted to withdraw her relinquishment based solely on a best interests  

                                                                                                                                                                 



determination.  



              C.	          We  Do  Not  Reach  Sabrina's  Argument  That  Terminating  Her  

                                                                                                                                                                        

                            Parental Rights Was Not In Kaleb's Best Interests.  

                                                                                                                       



                            In  her  Notice of Withdrawal Sabrina asserted that she was entitled  to  

                                                                                                                                                                              



withdrawher relinquishmentbecausetheanticipated adoptionhadfailed and termination  

                                                                                                                                                           



of her parental rights would therefore not be in Kaleb's best interest.  In her briefing she  

                                                                                                                                                                            



              30           See   AS 25.23.040(a)                          (providing for                  written  consent to                      be given            to   "a  



particular adoption").   



              31           AS 47.10.089(f).  

                                                                



              32           AS 47.10.089(g).  Alaska Civil Rule 60(b) provides certain exceptions to  

                                                                                                                                                                               

this general rule, but as Sabrina has not contested the relinquishment on any of the  

                                                                                                                                                                            

grounds set forth in Rule 60(b), we do not address them here.  

                                                                                                                     



                                                                                     -15-	                                                                              7371
  


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

 urges us to treat this assertion not as a claim that the failed adoption itself allows the                                                                                                                                                                        



 withdrawal - an argument that the superior court properly rejected - but as a separate,                                                                                                                                                       



 direct attack upon the court's termination order.                                                                                 



                                           But by filing the relinquishment, Sabrina voluntarily removed herself from                                                                                                                                          



 CINA proceedings relating to Kaleb. She "voluntarily relinquish[ed] to the Department                                                                                                                                                   



 of Health and Social Services . . . any and all rights and responsibilities of a parent with                                                                                                                                                                   



 respect to [Kaleb]."                                            If she wished to reinsert herself in subsequent proceedings, she                                                                                                                                 



 could only do so in the following ways:                                                                                      (1) by withdrawing the relinquishment, either                                                                                



 within ten days or, assuming the court could allow late withdrawal, with the court's                                                                                                                                                                  

                                     33  (2) by attacking the validity of the relinquishment on some other ground;34  

 permission;                                                                                                                                                                                                                                     

 (3) by moving to enforce an explicitly retained privilege;35  or (4) by showing good cause  

                                                                                                                                                                                                                                                             

                                                                                                                                                                   36      Sabrina has done none of these.  

 for a review hearing to vacate the termination order.                                                                                                                                                                                                                           

                                                                                                                                                



 Instead she attempts to directly appeal the termination order via an argument that, under  

                                                                                                                                                                                                                                                            



 the explicit terms of the relinquishment, cannot be a basis for reinstating her parental  

                                                                                                                                                                                                                                                    



 rights:   that the adoption did not take place.   Unless and until she is able to resume  

                                                                                                                                                                                                                                                      



 participation in the proceedings by withdrawing or voiding her relinquishment, she has  

                                                                                                                                                                                                                                                                   



 no standing to bring such a challenge. We therefore do not consider Sabrina's argument  

                                                                                                                                                                                                                                                

 that termination of her parental rights was not in Kaleb's best interests.37  

                                                                                                                                                                                                  



                     33                   See A 

                                                             S 47.10.089(c).                                   



                     34                   See,  e.g.,  Alaska   R.   Civ.   P.   60(b)   (allowing   motions   for   relief   from  



judgment  on  grounds  such  as  mistake,  newly  discovered  evidence,  and  fraud).   



                     35                   See  AS  47.10.089(g).   



                     36                   See AS 47.10.089(h).  

                                                                   



                     37                   Although  we  reject Sabrina's  attempt to  challenge  the  termination  order,  



                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                 -16-                                                                                                                         7371
  


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

V.        CONCLUSION  



                   We  AFFIRM  the  superior  court's  denial  of  reconsideration  and  

                                                                                                                          



its termination of Sabrina's parental rights.  

                                                  



          37        (...continued)  



                               

we note the absence of explicit best interest findings in that order.  We emphasize that  

                                                                                                                      

AS 47.10.089(e) requires the court to "determine[] that termination of parental rights  

                                                                                                                             

under the terms of the relinquishment is in the child's best interests" before issuing a  

                                                                                                                  

termination order, and we remind trial courts of the obligation to make findings adequate  

                                                                           

to support meaningful appellate review.  See, e.g., Borchgrevink v. Borchgrevink, 941  

                                             

P.2d 132, 139 (Alaska 1997).  



                                                            -17-                                                       7371
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

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