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K. F. v. State & F. C. (3/13/92), 828 P 2d 166
<![CDATA[
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of: )
) Supreme Court No. S-4091
J.L.F. and K.W.F., )
)
______________________________)
)
K.F., )
)
Appellant, )
)
v. ) Superior Court No.
) 3AN-88--589/590 CP
STATE OF ALASKA, and )
F. C., )
) O P I N I O N
Appellees. )
______________________________) [No. 3820 - March 13, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
John Reese, Judge.
Appearances: Margi Mock, Assistant
Public Defender, Anchorage, John B. Salemi,
Public Defender, Anchorage, for Appellant.
Dianne Olsen, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Appellees. Barbara L. Malchick,
Deputy Public Advocate, Anchorage, Guardian
ad litem.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
K.F. is a twenty-six year old mother of two young boys,
J.L.F., born September 1987, and K.W.F., born November 1988.
Applying a clear and convincing evidence standard, the superior
court both adjudicated the children as children in need of aid
(CINA) and found that K.F. was unable to care for the children.
Consequently, upon petition by the state, the superior court
terminated her parental rights.1 K.F. appeals both the CINA
finding and the termination of her parental rights.
I. FACTS AND PROCEEDINGS
In late 1988, K.F. and her children were living in a
shelter in Anchorage. On December 6, 1988, a worker from the
shelter informed the Department of Health and Social Services
(DHSS) that K.F. was not taking proper care of her children.2
DHSS took emergency custody of the children and immediately filed
a petition to adjudicate the children as CINA. On December 8,
1988, the superior court found that "[p]robable cause exists to
believe that [J.L.F. and K.W.F.] are . . . children in need of
aid." Therefore, the court ordered "[t]hat [J.L.F. and K.W.F.]
are committed to the temporary custody of [DHSS]." The court
also ordered a psychological evaluation of K.F., and that K.F.
participate in a treatment plan and parenting classes. At a
hearing in May 1989, K.F. stipulated that J.L.F. and K.W.F. were
children in need of aid. Thereafter the superior court formally
made the CINA adjudication and ordered that DHSS continue custody
for a period of not more than two years.
The superior court based its May 1989 finding on the
fact that "[t]he mother admits that she was unable to provide
adequate care for the children at the time custody was assumed in
December 1988" and that "completion of a treatment plan is
necessary before reunification may be considered." The court
found that DHSS's proposed treatment plan, consisting of weekly
training of K.F. by homemaker services, weekly participation by
J.L.F. and K.W.F. in infant learning services, and counseling of
K.F. by Anchorage Center for Families, was in the best interest
of the children.
DHSS and K.F. pursued the treatment plan. However, on
January 31, 1990, DHSS petitioned the superior court to terminate
K.F.'s parental rights, concluding that "despite the intensive
intervention efforts,"K.F. "would not ever be likely to develop
adequate parenting skills to parent her children."
After trial the superior court concluded that J.L.F.
and K.W.F. were "shown to be a child in need of aid pursuant to
AS 47.10.010(a)(2)(A) by clear and convincing evidence that
[K.F.] is unable to care for them."3 The superior court further
found by clear and convincing evidence that "the parental conduct
which caused the minors named above to be children in need of aid
is likely to continue." Accordingly, the superior court ordered
the "parental rights and responsibilities of [K.F.] . . .
terminated under AS 47.10.080(c)(3)"and that the children be
"committed to the custody of the Department of Health and Social
Services for adoptive purposes under AS 47.10.080(d)."
In this appeal, K.F. raises the following issues:
1. Did the Superior Court err in
concluding that the minors were children in
need of aid under AS 47.10.010(a)(2)(A)
because no parent or relative was able to
care for the children when, in fact, both the
mother's sister and aunt were available to
provide care?4
2. Did the Superior Court err in
finding that the Department of Health and
Social Services had established by clear and
convincing evidence that the developmentally
disabled mother would not be able to care for
the children in the future if adequate
services were provided?
III. DISCUSSION
A. Did the superior court have jurisdiction to
make the CINA determination under AS
47.10.010(a)(2)(A) when the state had not proved
an absence of relatives willing and able to care
for the children?5
Alaska Statute 47.10.010 provides in part,
Jurisdiction. (a) Proceedings relating
to a minor under 18 years of age residing or
found in the state are governed by this
chapter, except as otherwise provided in this
chapter, when the court finds the minor
. . .
(2) to be a child in need of aid as
a result of
(A) the child being habitually
absent from home or refusing to accept
available care, or having no parent,
guardian, custodian, or relative caring or
willing to provide care, including physical
abandonment by
(i) both parents
(ii) the surviving parent, or
(iii) one parent if the other
parent's rights and responsibilities have
been terminated under AS 25.23.180(c) or AS
47.10.080 or voluntarily relinquished;
. . .
(C) the child having suffered
substantial physical harm or if there is an
imminent and substantial risk that the child
will suffer such harm as a result of the
actions done by or conditions created by the
child's parent, guardian, or custodian or the
failure of the parent, guardian, or custodian
adequately to supervise the child . . . .6
In the case at bar, DHSS petitioned the superior court for a CINA
adjudication under both subsections (A) and (C) of AS
47.10.010(a)(2). However, in its final determination, the
superior court explicitly relied upon only AS 47.10.010(a)(2)(A)
as the basis for its CINA adjudication. Similarly, in its May
1989 CINA adjudication and its initial emergency CINA order the
superior court referenced only to subsection (2)(A).7
While conceding that she is unable to care for the
children, K.F. argues on appeal that the state had a burden under
subsection (2)(A) of proving by clear and convincing evidence
that no relative was available to care for her children. Only
then could the state proceed to the next step in the termination
of K.F.'s parental rights under AS 47.10.080(c)(3).8 K.F. notes
that the state presented no evidence relevant to the question of
the availability of relatives willing to provide care for the
minor children. She, on the other hand, had presented evidence,
in conjunction with a motion for continuance, that both her
sister and her aunt were interested in assuming custody of the
children. Accordingly, K.F. concludes that the superior court
had no jurisdiction to adjudicate her children as children in
need of aid under subsection (2)(A).
The state argues that under AS 47.10.080(c)(3), which
authorizes termination of parental rights, the focus is on
parental conduct. The state believes that a showing of the
parent's "inability to care" is sufficient to provide
jurisdiction under subsection (2)(A). The state quotes the
statutory definition of "caring" as "provid[ing] for the
physical, emotional, mental, and social needs of the child." AS
47.10.990(1). Thus, the state concludes that inability of the
parent to care for the child provides jurisdiction under
subsection (2)(A). The state notes that the other subsections of
AS 47.10.010(2) all provide jurisdiction based exclusively on
parental conduct, without regard to the availability of relatives
who are caring for or willing to provide care. The state argues
that availability of relatives only applies to abandonment, and
not to the parent's inability to care. Because K.F. is unable to
provide care, as defined by statute, the state concludes that the
superior court had jurisdiction, and that the availability of
relatives is irrelevant in the instant case.
We think the state's argument ignores the plain
language of the statute. See State v. Alex, 646 P.2d 203, 208
n.4 (Alaska 1982) (under our sliding scale approach to statutory
interpretation, the plainer the language of the statute the more
convincing the evidence of contrary legislative intent must be).
The relevant portion of AS 47.10.010(a)(2)(A) defines a child in
need of aid as "the child . . . having no parent, guardian,
custodian, or relative caring or willing to provide care." While
a finding of inability to care would be grounds for jurisdiction
under subsection (2)(A), that finding must also extend to any
relatives who are in fact caring for or willing to assume care.9
The state further argues that the evidence supports a
CINA adjudication under subsections (2)(C) and (F). Subsection
(2)(C) allows for a CINA adjudication if "there is an imminent
and substantial risk that the child will suffer harm as a result
of the actions done by or conditions created by the child's
parent, . . . or the failure of the parent . . . adequately to
supervise the child." The superior court found that "the
children will be in jeopardy if left in [K.F.'s] care,"and that
K.F. is "unable to safely care for her children." Although these
findings fit well under subsection (2)(C), the superior court
declined to base its findings on subsection (2)(C), even though
requested to by DHSS.10
Here, CINA adjudication was the basis for terminating
K.F.'s parental rights -- a drastic measure. The private
interest of a parent whose parental rights may be terminated is
of the highest order. In re K.L.J., 813 P.2d 276, 279 (Alaska
1991). Therefore, we conclude that this matter must be remanded
to the superior court to determine whether it would reach the
same resolution under subsection AS 47.10.010(a)(2)(C). To
resolve this question, the superior court in its discretion may
take additional evidence or may base its decision on the existing
record.11
B. Did DHSS fail to provide reasonable remedial
services to K.F.?12
CINA Rule 15(g) requires that
[i]n any case in which the court has
authorized the Department to remove the child
from the child's home, or continued a
previous order for removal, the court shall
make findings pursuant to 42 U.S.C.
671(a)(15) as to whether, under the
circumstances of the case, reasonable efforts
were made to prevent or eliminate the need
for removal of the child from the home and to
make it possible for the child to return to
the home.13
See also E.A. v. State, 623 P.2d 1210, 1213 (Alaska 1981) (reason
able effort to preserve and strengthen family fulfilled by
offering counseling and supervision). K.F. argues that the
reunification effort of DHSS was unreasonable in that it did not
take into account her disability. Specifically, K.F. notes that
she had been diagnosed as being within "the borderline range of
intelligence"14 with a cognitive disability. Due to K.F.'s
difficulty in processing information, particularly verbal
information, clinical psychologist Richard Lazur recommended that
K.F. receive "[a]ctive participation parent training classes,
preferably with the children"because "[s]he prefers an active
visual style of learning."
K.F. admits that DHSS had a reunification plan and that
she received training in parental skills under this plan.
However, K.F. believes that the plan was "fatally flawed."
Between December 1988 and June 1989, DHSS sponsored supervised
visits, which took place at DFYS. Additionally, during this
time, the parents and the children were evaluated, and the
parents attended parenting classes at the Center for Children and
Parents. In June 1989, DHSS adopted a second plan which provided
"hands on"learning. However, K.F. still considers the overall
plan unreasonable. First, she believes that the services in the
second plan were not "geared toward a developmentally disabled
parent" and that "not a single service provider with any
experience in working with retarded persons was assigned to the
case." Second, K.F. considers it unreasonable that the second
plan was only in effect for six months before DHSS petitioned for
termination of her rights. She cites DHSS's CSP manual, which
recommends one year of services before a decision be made to
terminate rights on the basis that the client is not making
progress.
The state contends that the services offered by DHSS
were "well coordinated" and "geared specifically to K.F."
Additionally, the state argues that "the services were in place
long enough for the professionals to determine that K.F.'s
abilities were not going to improve." The state cites the fact
that monthly meetings were held by those involved in K.F.'s
treatment plan to discuss K.F.'s case. Moreover, information on
treating the developmentally disabled was obtained and distri
buted at these meetings. The state describes how the members of
the treatment team all modified their treatment procedures to
accommodate K.F.:
During the supervised visits, Molly
Heath used hands-on modeling to teach
appropriate parenting skills . . . . In
individual therapy, Dee Foster used a
concrete approach to treat K.F., including
the use of visual aids and videotapes.
Suzanne Ascott geared the homemaker services
to K.F. by using information she received
from a group in Denver that works with
developmentally handicapped adults, by making
lists, and by writing out on posterboard the
safety-proofing that K.F. needed to
accomplish before the children came to the
home for visits. Terry Kyle, the
parent/infant educator, also used every
recommended avenue, including videotapes,
handouts, and writing things out herself, in
trying to teach K.F. the skills necessary to
help the children with their delays. Public
health nurse Jean Baker, who has experience
in dealing with developmentally disabled
adults, also made sure that she presented her
instructions in a manner that was
understandable to K.F.
(Citations omitted).
Here, the superior court did not make an explicit
finding that the treatment plan was reasonable. CINA Rule 15(g)
requires a finding of reasonableness. "In any case in which the
court has authorized the Department to remove the child from the
child's home . . . the court shall make findings . . . as to
whether, under the circumstances of the case, reasonable efforts
were made to . . . make it possible for the child to return to
the home." (Emphasis added.) Accordingly, we conclude that this
question must be remanded to the superior court for a specific
finding of whether reasonable efforts were made to return the
children to the home. Again, the heightened burden and the
drastic nature of termination of parental rights mandate a
remand.
REMANDED for further proceedings in accordance with
this opinion.
_______________________________
1. The superior court also terminated the parental rights
of the father. The father has not appealed.
2. According to the amended petition for adjudication of
CINA and temporary placement, workers and residents at the
shelter reported the following incidents to DHSS:
[K.F. threw J.L.F.] into his crib,
cover[ed] his mouth with her hand, and
yell[ed] at him to shut up because he was
crying. When he did not stop crying, the
mother picked up [J.L.F.] by the leg, and
started shaking, shook him some more when he
did not stop.
[K.F.] lift[ed] [K.W.F.] up to head
level and slam[med] him onto a couch. . . .
[K.F. made] a statement that she wished she
allowed her older boy [to] smother [K.W.F.]
to death.
3. In support of this conclusion, the superior court
entered the following findings of fact:
a. [K.F.] has cognitive
difficulties and a personality disorder which
create the potential that the children will
be in jeopardy if left in her care.
b. Because of [K.F.'s]
developmental delays, it is difficult for her
to learn and retain information.
c. [K.F.] has been unable to retain
information about how to keep her children
safe when in her care.
d. The minors are active children
with special needs because of their
developmental delays. They require good
parenting skills which their mother is unable
to provide.
e. [K.F.] has been unable and will
be unable to provide care for her children
without a third party assisting her to care
for the children during all waking hours.
f. Expert witnesses testified that
[K.F.] could not care for her children absent
substantial assistance. Dee Foster testified
that [K.F.] would need assistance during most
of the waking hours; Dr. Gideon's report indi
cated [K.F.'s] abilities were marginally suf
ficient only if with particular assistance;
Dr. Richard Lazur testified that [K.F.] could
care for her children only if they were all
in residential placement with a third party
assisting [K.F.] to care for the children.
g. Despite the fact that [K.F.]
complied with the treatment plan by attending
all appointments made for her for parenting
classes and individual therapy and by cooper
ating with homemakers and public health
nurses who went to her home, she made only
marginal improvements in her parenting
skills. At the completion of all treatment
provided, she still was unable to safely care
for her children.
4. This issue was not included in K.F.'s original statement
of points on appeal. However, this court allowed K.F. to
supplement the record, by its order of July 11, 1991.
5. K.F. asserts that the court failed to apply a jurisdic
tional element of AS 47.10.010(a)(2)(A). This is a question of
statutory interpretation, which this court will decide using its
independent judgment adopting the rule of law that is most persua
sive in light of precedent, reason, and policy. Langdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987) (citations
omitted).
6. Subsections B, D, E, & F provide additional
circumstances for a CINA adjudication not relevant to this case.
7. The May 1989 CINA adjudication was by a preponderance of
the evidence. To support a termination of parental rights, the
adjudication must be by a clear and convincing standard. See AS
47.10.080(c)(3), infra, n.8.
8. AS 47.10.080(c) states in part,
(c) If the court finds that the
minor is a child in need of aid, it shall
. . .
(3) by order, upon a showing in the
adjudication by clear and convincing evidence
that there is a child in need of aid under AS
47.10.010(a)(2) as a result of parental con
duct and upon a showing in the disposition by
clear and convincing evidence that the
parental conduct is likely to continue to
exist if there is no termination of parental
rights, terminate parental rights and respon
sibilities of one or both parents and commit
the child to the department or to a legally
appointed guardian of the person of the
child, and the department or guardian shall
report annually to the court on efforts being
made to find a permanent placement for the
child.
9. Because adjudication under subsection (2)(A) normally
would arise under abandonment, the state's burden usually would
be minimal: abandonment is evidence that no relative is willing
or able to provide care.
10. In analyzing whether the father's parental rights should
be terminated, the superior court stated that the father's
"conduct of leaving the children with [K.F.] alone allowed the
children to be at risk and to be children in need of aid."
Clearly, risk was an element of this CINA adjudication.
11. If the superior court declines to reform its findings to
explicitly rely on AS 47.10.010(a)(2)(C), then it must reach the
issue of availability of relatives under AS 47.10.010(a)(2)(A).
The state argues that K.F. waived the issue of whether
the state must prove lack of relatives by not arguing it at trial
and not specifying this error in her points on appeal. The state
does not deny that it knew of the existence of K.F.'s relatives.
However, there are no facts in the record as to the fitness or
willingness of K.F.'s relatives to care for her children.
K.F. argues that the issue is jurisdictional: the state
has jurisdiction over her children under AS 47.10.010(a)(2)(A)
only if it first proves that there are no suitable relatives. A
jurisdictional defense may be raised at any time. Wanamaker v.
Scott, 788 P.2d 712, 713 n.2 (Alaska 1990).
The state argues that the burden is on the parent to
establish the existence of suitable relatives. If accurate, then
K.F.'s failure to raise the issue at trial means that the lack of
suitable relatives is affirmatively established, and the superior
court would have jurisdiction to decide this case under
subsection (2)(A).
Subsection (2)(A) establishes that lack of suitable
relatives is a material element of a CINA adjudication under that
subsection. If the state wishes to proceed under that
subsection, it must prove that there are no suitable relatives.
It is clear that the burden of proof under subsection (2)(A) is
on the state. R.C. v. State, Dep't of Health and Social Servs.,
760 P.2d 501, 504 (Alaska 1988).
12. K.F.'s second specification of error goes to whether the
state made a reasonable effort to return the children to K.F.
Whether the state's effort was reasonable is a factual issue, and
this court will reverse findings of fact only if we find them
clearly erroneous. Parker v. Northern Mixing Co., 756 P.2d 881,
887 n.11 (Alaska 1988). A finding is clearly erroneous when it
leaves us "with a definite and firm conviction on the entire
record that a mistake has been made, although there may be
evidence to support the finding." Id. at 891 n.23 (citation
omitted). In making this determination, we view the evidence in
the light most favorable to the party prevailing below. Id.
13. 42 U.S.C. 671(a)(15) states in relevant part,
State plan for foster care and adoption
assistance
(a) Requisite features of State
plan
In order for a State to be eligible
for payments under this part, it shall have a
plan approved by the Secretary which --
. . .
(15) . . . provides that, in each
case, reasonable efforts will be made . . .
(B) to make it possible for the child to
return to his home . . . .
See also CINA Rules 17(c)(3) ("In any case in which the court has
authorized the Department to remove the child from the child's
home or continued a previous order for removal, the court shall
make the findings required by CINA Rule 15(g)") and 18(b) ("CINA
Rule 17 applies to termination hearings"). Technically, this
case is governed by CINA Rule 18(b), applying Rule 17(c)(3),
which in turn applies Rule 15(g).
14. On a standardized intelligence test, K.F. achieved a
verbal I.Q. of 72, a performance I.Q. of 95, and a full scale
I.Q. of 79, placing her in the borderline range of intelligence.
However, in "the ability to see relationships between things and
ideas, and to classify information . . . . [K.F.] falls within
the retarded range of functioning."
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