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In the Matter of R.K. and E.K. (4/30/93), 851 P 2d 62
<![CDATA[
Notice: This 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-4894
R.K. )
DOB: 1/19/85 ) Trial Court No.
) 4FA-88-173 CP
E.K. )
DOB: 4/28/86 ) O P I N I O N
)
Minors Under the Age of )
Eighteen (18) Years. ) [No. 3949 - April 30, 1993]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Richard D. Savell,
Judge.
Appearances: Thomas E. Fenton,
Fairbanks, for Appellant Richard Hudson.
Scott Davis, Assistant Attorney General,
Fairbanks, Charles E. Cole, Attorney General,
Juneau, for Appellee State of Alaska.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Moore, Justices.
[Compton, Justice, not participating.]
MATTHEWS, Justice.
In this case Richard Hudson challenges the superior
court's order terminating his parental rights with respect to
R.K. and E.K. We reverse the superior court's ruling.
FACTUAL AND PROCEDURAL BACKGROUND
R.K. and E.K. were found to be children in need of aid
under AS 47.10.010(a)(2) on January 9, 1989, by stipulation
between the Division of Family and Youth Services (DFYS) and
their mother.1 In the stipulation the mother "admits that the
children . . . are children in need of aid under AS
47.10.010(a)(2)(A) and (B) on the basis of the facts set forth in
the petition [of October 15, 1988] in this case."2 The initial,
October 15th, petition indicated that the mother's location was
unknown and that the father "may be Richard L. Hudson."
At the first hearing on the petition held before a
magistrate on October 15, 1988, Richard Hudson appeared and
testified that the children had been left in the custody of a
babysitter whom he had found at the Savoy Bar because he was
unable to find any of the children's usual babysitters. Hudson
was asked by the judge whether he was the father and he gave the
following equivocal testimony:
MR. HUDSON: Well, they call me Daddy.
I've been there since they were born, if
that's . . . .
THE COURT: Well . . . .
MR. HUDSON: . . . tell you now, I'm not
their father.
THE COURT: You're not the father.
MR. HUDSON: No. But, I mean, I'm --
it's like I've been around lot longer than
family.
THE COURT: All right.
MR. HUDSON: (Indiscernible) family
(indiscernible) normally to 'm. I mean, they
are my children. I mean, I'm all they've got
(indiscernible) parent (indiscernible).3
At the next hearing, held on October 17, 1988, only the
guardian ad litem, counsel for the state, and personnel from DFYS
were present. The state's counsel represented that: "Mr.
Richard Hudson appeared at the hearing over the weekend,
acknowledged that he was not the father of the children. So, the
petition probably should be amended to reflect that the
children's father is unknown at this time." The children were
placed in a foster home near Fairbanks.
At a pretrial conference held on January 5, 1989, where
again only the state's attorney, the guardian ad litem, and DFYS
personnel were present, the trial judge stated that Richard
Hudson had been before her that morning on a criminal case in
which he was in custody. At that time Hudson represented that he
was not the father of the children. The trial judge therefore
did not arrange to have Hudson brought before the court in the
children's matter. At the hearing on January 9, where the mother
stipulated to state custody for two years, no discussion of the
paternity of the children took place.
The next event of significance was a call from Hudson
to DFYS case worker Nicki McCabe on June 21, 1989. Hudson sought
visitation with the children, stating first that he was their
father and second that even if he was not, he had assumed the
role of their father. McCabe explained to Hudson that he would
have to prove his paternity in order to see the children. She
stated that Hudson, the children and the mother would all have to
have their blood tested. Hudson contacted the mother, who agreed
to have her blood tested in July of 1989. However, she did not
show up to have blood taken.
Hudson phoned McCabe on July 26, 1989, and explained
that he had attempted to have the mother give blood, but that she
had been uncooperative. Nevertheless, in August of 1989 the
children were placed in a permanent foster home in Anchorage.4
After several attempts, McCabe finally contacted the mother on
September 14, 1989. The mother stated that Hudson was not the
father of the children. On October 10, 1989, McCabe called
Hudson to determine if any progress had been made concerning the
blood tests. Hudson explained that he had not seen the mother
for a few months.5
On January 18, 1990, the state petitioned for
termination of parental rights of the mother6 and of the unknown
father pursuant to AS 47.10.080(c)(3). The statute provides:
(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
conduct and upon a showing . . . by clear
and convincing evidence that the parental
conduct is likely to continue to exist if
there is no termination of parental rights,
terminate parental rights and
responsibilities of one or both parents and
commit the child to the department . . . .
The court appointed counsel to represent the unknown
father(s). Counsel contacted Hudson and then sought court orders
requiring the mother to give blood in order to determine
paternity. Although the court ordered the mother to have her
blood taken for testing purposes on February 23, 1990 and March
27, 1990, and issued bench warrants to enforce the orders on May
7, 1990 and June 5, 1990, the mother was not apprehended until
late November of 1990. At that time, testing took place and by
December of 1990 it was clear that Hudson was the biological
father of R.K. As of January 28, 1991, the test results
confirmed that Richard Hudson was also the father of E.K.
A custody review hearing was held on March 6, 1991,
before Judge Richard Savell. Hudson was present and testified at
the hearing, although he was then incarcerated at the Palmer
Correctional Facility.7 At the conclusion of the hearing, Judge
Savell ordered that state custody of the children be extended for
a period not to exceed two years. The court found that Hudson
was responsible for the delay in establishing paternity for the
children, that he had not asserted any genuine interest in the
children after October 15, 1988, and that his conduct leading up
"to the emergency custody of these children on October 14, 1988,
constitute[s] clear and convincing evidence that these children
continue to be children in need of aid." The court also found
that it could be seriously harmful to the children if they were
removed from their current placement and that it would be
contrary to their welfare to be placed with Hudson or his
relatives.
In October of 1991, the court heard the state's
petition to terminate Hudson's parental rights. Following the
hearing the court ordered Hudson's rights terminated. The court
found that Hudson's neglect in October of 1988 resulted in the
children being children in need of aid, and that such neglect
would likely continue if there were no termination of his
parental rights. Specifically, the court found:
(a) The children's condition at
the time they were taken into emergency
custody in October 1988 is directly
attributable to and the result of the neglect
the children suffered while in Mr. Hudson's
care. The children were bruised, cut, had
head lice, [E.K.] had pneumonia, both
children had traces of cocaine and
amphetamines in their system, and both
children had taken toxic amounts of cold
medicine. Mr. Hudson had found an
inappropriate baby-sitter in the Savoy Bar to
watch the children just prior to the time
that they were taken into emergency custody.
Both parents were caught in the whirlwind of
substance abuse, including alcohol and
cocaine abuse, and this significantly
interfered with their ability to meet the
needs of and care for their children. There
was neither reliable nor consistent
childcare, nor appropriate attention to the
children's health. Mr. Hudson testified that
during this time period he was either working
twelve to fourteen hours a day or on drug
consuming binges.
(b) The information available at
the time the children were taken into the
emergency custody, and subsequently was that
the children were in Mr. Hudson's care,
therefore their condition was directly
attributable to his neglect and total lack of
insight regarding the children's needs.
Concerning the critical predictive finding of
continuing neglect, the court found that Hudson continued to
demonstrate "very little insight into his psychological and drug
related difficulties"and lacked "insight into the needs of his
children." The court found that Hudson has a poor prognosis for
sobriety in the future.
DISCUSSION
In order to terminate parental rights under AS
47.10.080(c)(3), the "court must find by clear and convincing
evidence (1) that there is a child in need of aid under
AS 47.10.010(a)(2) as a result of parental conduct, and (2) that
the parental conduct is likely to continue." R.C. v. State, 760
P.2d 501, 504 (Alaska 1988) (citing E.J.S. v. State, 754 P.2d
749, 750 (Alaska 1988); K.T.E. v. State, 689 P.2d 472, 475
(Alaska 1984)).
On appeal Hudson argues that the superior court erred
in finding that R.K. and E.K. were children in need of aid due to
his conduct and that such conduct would likely continue. More
specifically, Hudson contends that: (1) he was not responsible
for the condition of the children when they were taken into
emergency custody on October 14, 1988, as the children were in
the custody of the mother at that time; and (2) that even if he
was the custodian of the children as of October 14, 1988, the
trial court's finding that his conduct will likely continue is
clearly erroneous.
Both of Hudson's challenges are to factual findings
made by the trial court. This court will reverse factual
findings only if we find them clearly erroneous. In Re J.L.F.
and K.W.F., 828 P.2d 166, 170 n.12 (Alaska 1992). Findings are
clearly erroneous when the reviewing court is left with a
definite and firm conviction after reviewing the entire record
that a mistake has been made. Id. (quoting Parker v. Northern
Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)).
With respect to Hudson's first point concerning whether
he or the mother was the caretaker in fact of the children on
October 14, 1988, we are unable to say that the trial court's
finding was clearly erroneous. Although Hudson testified that
the children were in the mother's care on October 14, his
statement before the magistrate on the following day is to the
contrary. He explained this inconsistency as an effort on his
part to protect the mother, but the trial court was not required
to accept this explanation.
On the second point, however, it is our view that the
trial court's predictive finding was clearly erroneous.
Sufficient evidence does not exist to support the conclusion that
the parental conduct which resulted in the determination that the
children were in need of aid was likely to continue. Hudson
argues that "[h]e has never been given a chance to demonstrate
his conduct after the night in question because the state would
not deal with him because he had not established his paternity
and because for most of the time he has been in prison." In our
view there is merit to this position. DFYS employees informed
Hudson that he could not visit the children until he had
established that he was their father. After McCabe informed
Hudson that blood tests from the mother were required, a period
of approximately eighteen months elapsed before paternity of both
children was established. The trial court found that Hudson was
responsible for this delay. These findings are contrary to the
record before us. The delay in proving paternity clearly
resulted from the mother's refusal, even under court order, to
provide blood for testing purposes.
The critical role that the delay played in the state's
decision to terminate Hudson's parental status is illustrated by
the testimony of DFYS case worker McCabe. She testified that the
main reason the state decided to seek termination of Hudson's
parental rights was "because Richard Hudson did not come forth
for the first eight months [the children] were in custody, and
then it . . . took him two and a half years to prove his
paternity." Similarly, McCabe testified that if Hudson had
established his paternity in June of 1989 she "would have been
extremely pleased to look at potential . . . placements [with
relatives] for these children."8
In essence the state's case is based on one episode of
neglect on the part of Hudson in October of 1988. While Hudson
may have been at fault for leaving the children with an
unqualified babysitter and for not realizing that the children
needed some medical attention, these acts do not signify a
continuing pattern of gross disregard for the welfare of R.K. and
E.K. While at the hospital on October 14 and 15, 1988, the
children were described by the attending physician as healthy,
well nourished and giving no appearance of having been physically
abused.9
The evidence of Hudson's neglect is too limited both as
to its extent and duration to sustain a prediction by clear and
convincing evidence that he is likely to continue to be unable to
provide appropriate parental care for the children. Hudson
claims no longer to be a user of illegal drugs or alcohol. The
truth of this claim can be monitored on an ongoing basis as a
condition of Hudson exercising such visitation or custody rights
as he may eventually gain.
The order of the superior court terminating Hudson's
parental rights is REVERSED.
_______________________________
1 The facts bringing the children to the attention of the
department were alleged as follows:
At 8:15pm on October 14, 1988, the
emergency room doctor at Fairbanks Memorial
Hospital reported to the Division of Family
and Youth Services (DFYS) that an unknown
female brought [R.K.] and [E.K.] to the
emergency room. The woman said the children
had drunk one-half bottle of Contac cold
medicine while in the care of a babysitter
who has run away. The doctor said the
children both had ingested toxic amounts of
tylenol and pseudoephedrine. The doctor also
reported that both children have a more than
average number of scratches and abrasions and
[E.K.] has pneumonia. When Mr. Hudson, the
father, arrived at the hospital he became
angry at the doctor and tried to remove the
children from the hospital. The doctor had
to call hospital security to intervene. The
father then left the hospital stating he must
get back to work. The father again came to
the hospital at 3:00am on October 15, 1988
and tried to remove the children. The
mother's whereabouts are unknown. There is
an imminent and substantial risk that the
minors would suffer harm without the
intervention of DFYS.
Petition for Temporary Custody, October 15, 1988.
2 AS 47.10.010(a)(2)(A) and (B) provide:
(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;
(B) the child being in need of
medical treatment to cure, alleviate, or
prevent substantial physical harm, or in need
of treatment for mental harm as evidenced by
failure to thrive, severe anxiety,
depression, withdrawal, or untoward
aggressive behavior or hostility toward
others, and the child's parent, guardian, or
custodian has knowingly failed to provide the
treatment[.]
3 Hudson explains his testimony by indicating that he
believed he needed to be listed on the children's birth
certificates as the father in order legally to be considered
their father. He maintains that as DFYS informed him that he was
not listed on the children's birth certificates as the father, he
therefore believed he could not state to the judge that he was
the legal father.
4 McCabe indicates in the Annual Review of Child in Need of
Aid Report filed with the court on January 8, 1990, that Hudson
"has attempted to prove paternity by trying to arrange blood
testing; however, [the mother] has refused ultimately to
cooperate."
5 McCabe testified that the mother "wasn't easy to find."
The only way to contact her was to leave a message for her at the
Savoy Bar. Sometimes the mother would respond and sometimes she
would not.
6 The mother's rights were terminated on May 15, 1990.
7 The record reveals that Hudson was arrested for three
separate incidents of cocaine possession in October, November and
December of 1988. He was arrested for a fourth possession charge
in August of 1989. He was incarcerated beginning in December of
1988 until February of 1989. At that point he entered a private
drug rehabilitation program where, as he described it, he was
"locked down" for 127 days. After his release from confined
status in the program, he participated in the program for another
ten months. This entailed attending meetings once a week and
having random urinalysis about twice a week. He states that he
successfully completed the program and had only one urinalysis
which showed the presence of cocaine which, he claims, was an
error as a blood test taken at the same time confirmed that he
had not ingested cocaine. Hudson worked at mining jobs during
the summer of 1989 and the summer of 1990. He began serving a
three-year presumptive sentence on the drug charges in November
of 1990. He was released from custody on January 25, 1992.
8 McCabe was also asked: "And had he established paternity
at that time, [in June of 89] your testimony is that you would
have considered relatives of his for placement." Answer:
"Definitely."
9 The report that traces of cocaine were found in the
children's systems is a disturbing but undeveloped point. No
evidence is presented as to the accuracy of the test, whether the
cold medicines the children drank might explain the test results,
or how the children might have gotten cocaine. No one suggests,
however, that Hudson gave cocaine to the children.
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