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In the Matters of D.P., C.P., H.P. (11/5/93), 861 P 2d 1166
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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 Matters of ) Supreme Court No. S-5270
)
) Trial Court Nos.
D.P., C.P., and H.P., ) 1JU-92-55, 56 & 57 PR-G
)
) O P I N I O N
Minors Under 18 Years of Age. )
)
______________________________) [No. 4019 - November 5, 1993]
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Larry R. Weeks,
Judge.
Appearances: L. Merrill Lowden, Birch,
Horton, Bittner & Cherot, Juneau, for K.W.P.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
MATTHEWS, Justice.
The three children involved in this case have been in
the custody of the Alaska Department of Health and Social
Services, Division of Family and Youth Services (Department)
since 1988. Their mother, A.H., has been an alcohol and drug
abuser for a long time. Their father, K.W.P., is a convicted
murderer who is serving a thirty-year sentence in a minimum
security Washington state prison. In 1991 the Department placed
the children with their paternal grandmother, Lee, who lives in
Washington. The Department entrusted to Lee the decision as to
whether the children should be allowed to visit their father in
prison. She took them to visit him about once every two months.
In April 1992 the State petitioned to have Lee appointed guardian
of the children. The children's mother did not object to the
appointment, but contended that Lee should be precluded from
allowing the children to visit with their father. The superior
court appointed Lee the children's guardian, and ordered that she
could not allow visitation more frequently than twice a year.
The father has appealed this limitation.1
The court appointed Lee guardian with the powers
specified in AS 13.26.070 as limited by AS 47.10.084(c). The
section .070 powers are essentially those which a custodial
parent has over his or her children. Section .084(c) applies
where there is an appointed guardian and the parental rights of
the children have not been terminated. In such cases the parents
have certain residual rights, including the right to visitation.
The Department has the primary authority to make place
ment decisions concerning children in its custody. In re B.L.J.,
717 P.2d 376, 380 (Alaska 1986). This authority includes the
power to determine visitation rights. In re A.B., 791 P.2d 615,
618 n.3 (Alaska 1990); K.T.E. v. State, 689 P.2d 472, 478 (Alaska
1984). The Department's placement decisions are subject to
judicial review and are ordinarily reviewable under an abuse of
discretion standard. A.H. v. State, 779 P.2d 1229, 1233 (Alaska
1989); In re B.L.J., 717 P.2d at 380-81. However, more stringent
standards apply where reasonable parental visitation rights are
limited or eliminated.
Where parental visitation rights are completely cut
off, either legally or in practical effect, the parent is
entitled to a court hearing where the Department must prove by
clear and convincing evidence that the order serves the
children's best interests. D.H. v. State, 723 P.2d 1274 (Alaska
1986); K.T.E. v. State, 689 P.2d at 478 n.11. Where a parent's
reasonable visitation rights are merely restricted, the parent is
entitled to a court hearing where the Department must prove by a
preponderance of the evidence that the restriction is in the
children's best interests. In re A.B., 791 P.2d at 618.
There are two approaches that the superior court might
have taken in deciding the mother's request that the children not
be allowed to visit with their father. Under the first approach,
the court could have followed the holding of such cases as In re
A.B., to the effect that the Department's visitation decision
must control unless it is an abuse of discretion. Id. at 618
n.3. Here, the Department's visitation decision was to let Lee
decide whether the children should visit their father. Under
this approach, the superior court should not have interfered
unless evidence was presented which persuaded the court that the
Department's decision was an abuse of discretion.
The second approach focuses on the court's power to
specify the rights and responsibilities of guardians concerning
visitation under AS 47.10.084(b) and (c). Under this approach
the court could limit the number of times the guardian would be
permitted to take the children to visit their father even if the
Department opposed the limitation, if the court was persuaded
based on a preponderance of the evidence that the limitation was
in the best interests of the children. This approach comports
with the standard of proof which we have discussed in such cases
as In re A.B., 791 P.2d 615, D.H. v. State, 723 P.2d 1274, and
K.T.E. v. State, 689 P.2d at 474.
For the purposes of this case, it is not necessary to
decide which of these two approaches should have been selected.
Under both approaches, before a limitation on reasonable parental
visitation is justified, the Department must present proof that
the limitation is in the children's best interests. No such
evidence was presented. Thus the case for restricting visitation
with the father has not been made.
For the above reasons, this case is REMANDED to the
superior court with directions to VACATE that portion of the
order of July 6, 1992, which prohibits the guardian from
permitting the children to visit with their father more
frequently than twice a year.
_______________________________
1 Neither the State, which advocated leaving visitation
decisions to Lee's discretion, nor the mother have appeared on
appeal.
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