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A.M. V. State (3/10/95), 891 P 2d 815
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
A.M., )
) Supreme Court No. S-5836
Appellant, )
) Superior Court No.
v. ) 1JU-S90-75/76B CP
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4177 - March 10, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Walter L. Carpeneti, Judge.
Appearances: Donna J. McCready,
Assistant Public Defender, Juneau, and John
B. Salemi, Public Defender, for Appellant.
Jan A. Rutherdale, Assistant Attorney
General, Juneau, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice pro tem.*
BRYNER, Justice, pro tem.
COMPTON, Justice, with whom RABINOWITZ, Justice, joins,
concurring.
A.M. appeals the termination of his parental rights to
his two children, M.M. and S.M. We conclude that the superior
court erred in finding that termination of A.M.'s parental rights
was warranted by his physical abandonment of the children.
I. FACTS AND PROCEEDINGS
This appeal arises from the termination of A.M.'s
parental rights to his minor son, M.M., and his minor daughter,
S.M. The children were born in 1987 and 1989 to A.M. and S.L.S.
The children are Indian children within the meaning of the Indian
Child Welfare Act (ICWA), 25 U.S.C. 1901-23, 1951 (1988).
In 1990, A.M. was charged with, and later convicted of, sexually
abusing S.S., a child of S.L.S. by a prior relationship who lived
with A.M. and S.L.S. at the time. In March 1990, after the abuse
was reported, the Division of Family and Youth Services (DFYS)
arranged for S.L.S. and her three children to live in a women's
shelter. Upon finding that S.L.S. had left the shelter and was
not keeping S.S. from A.M., DFYS took emergency custody of S.S.
S.L.S. entered an alcohol treatment program shortly thereafter;
A.M. took custody of M.M. and S.M., with DFYS monitoring their
situation.
In September 1990, A.M. was formally charged with
sexually abusing S.S. M.M. and S.M. were taken from A.M. upon
his arrest and were temporarily placed in the home of a maternal
great aunt in Juneau with whom S.L.S. was staying. Not long
thereafter, S.L.S. left the children with a baby sitter and
failed to return. On October 23, 1990, DFYS petitioned for
adjudication of S.M. and M.M. as children in need of aid (CINA),
alleging that "[t]he children having no one to care for them are
in imminent danger of physical harm or damage." A.M. and S.L.S.
both stipulated that the children were in need of aid and that
DFYS should assume custody for up to two years. A.M. was
subsequently convicted of sexually abusing S.S. and was
eventually sentenced to serve a total of ten years in prison,
with one year suspended.
In June 1992, seventeen months after A.M. stipulated
that M.M. and S.M. were children in need of aid, DFYS petitioned
for termination of A.M.'s parental rights.1 Superior Court Judge
Walter L. Carpeneti conducted a consolidated hearing on the
adjudicative and dispositional aspects of the State's petition to
terminate. On August 6, 1993, Judge Carpeneti entered an order
terminating A.M.'s parental rights.2 A.M. then filed this
appeal, challenging the termination order on numerous substantive
and procedural grounds.
II. TERMINATION OF PARENTAL RIGHTS BASED ON CINA STATUS UNDER AS
47.10.010(a)(2)(A)
A. Statutory Framework and Standard of Review
The State petitioned to terminate A.M.'s parental
rights based on the allegation that S.M. and M.M. were children
in need of aid.3 Under AS 47.10.080(c)(3), the court is
authorized to terminate parental rights
upon a showing . . . 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 . . . .
See also CINA Rule 15(c). In order to terminate parental rights
under this statute, the court must initially find grounds
sufficient to warrant a CINA adjudication. Nada A. v. State, 660
P.2d 436, 439-40 (Alaska 1983). The court must then undertake a
two-step inquiry: first, whether the child is a child in need of
aid "as a result of parental conduct;"second, whether that
conduct "is likely to continue to exist." Id. at 440 (quoting AS
47.10.080(c)(3)).
Alaska Statute 47.10.010(a)(2) specifies various
substantive grounds for a CINA adjudication. Here, the State
alleged that A.M.'s children were in need of aid on the
alternative grounds specified in AS 47.10.010(a)(2)(A), (C), (D),
and (F).4 The only theory actively argued by the State at the
termination trial, however, was abandonment under AS
47.10.010(a)(2)(A). Subsection (a)(2)(A) allows a CINA
adjudication as to any "child . . . having no parent, guardian,
custodian, or relative caring or willing to provide care,
including physical abandonment . . . ." In the context
of the abandonment provision, "conduct"means the willful act of
a parent. Nada A., 660 P.2d at 439; In re B.J., 530 P.2d 747,
750 n.12 (Alaska 1975). "Whether or not there has been an
abandonment within the meaning of the statute is to be determined
objectively, taking into account not only the verbal expressions
of the natural parents but their conduct as parents as well."
D.M. v. State, 515 P.2d 1234, 1236-37 (Alaska 1973).
For purposes of termination, the State has the burden
of proving both the CINA status of the child and the existence of
grounds for termination by clear and convincing evidence. AS
47.10.080(c)(3); CINA Rule 15(c). In reviewing the trial court's
factual findings on the issue of termination, we apply the
"clearly erroneous"standard of review. E.J.S. v. State, 754
P.2d 749, 750 n.2 (Alaska 1988). However, we must always bear in
mind that "terminating parental rights [is] a drastic measure.
The private interest of a parent whose parental rights may be
terminated is of the highest order." In the Matter of J.L.F. and
K.W.F., 828 P.2d 166, 170 (Alaska 1992).
B. Abandonment
On appeal, A.M. argues that the superior court erred in
finding conduct constituting physical abandonment under AS
47.10.010(a)(2)(A). The test for abandonment under subsection
(a)(2)(A) is two-pronged: the superior court must find (1) that
the parent's conduct implied a conscious disregard for parental
obligations; and (2) that the parent's conscious disregard led to
the destruction of the relationship between the parent and the
parent's children. E.g., E.J.S. 754 P.2d at 751. The superior
court addressed both prongs of this test in its findings and
conclusions. A.M. challenges the adequacy of the court's
findings as to both prongs.
1. Conscious Disregard for Parental Duties
"The first prong of the abandonment test focuses on the
objective conduct of the parents in discharging their parental
responsibility. Thus, abandonment is not determined by the
parent's subjective intent or on the _parent's wishful thoughts
and hopes for the child._" Id. (quoting D.M., 515 P.2d at 1237).
One's parental duty is "an _affirmative duty . . . which requires
[a] continuing interest in the child and a genuine effort to
maintain communication and association with the child._" E.J.S.,
754 P.2d at 751 (alterations in original) (quoting In re Burns,
379 A.2d 535, 540 (Pa. 1977)).
In reaching the conclusion that A.M. had consciously
disregarded his parental obligations to M.M. and S.M., the court
focused on A.M.'s pre-incarceration conduct, which included
his long history of severe drug and alcohol
abuse, his long history of committing crimes
(including sexual abuse of his stepdaughter),
his inability to provide consistent support
and nurture for his children, his constant
moving of the children, his long history of
physical attacks upon their mother, and
numerous episodes of leaving the children for
substantial periods.
The superior court found that this conduct "evidence[d] . . .
[A.M.'s] disregard for his parental obligations to care for his
children, that is, his obligation to provide for their physical,
emotional, mental and social needs."
The record demonstrates that the superior court
considered the totality of A.M.'s conduct prior to his
incarceration. Although that conduct included the acts for which
he was ultimately imprisoned, the court did not rely on the mere
fact of A.M.'s incarceration in finding that he had consciously
disregarded his parental duties. This accords with existing law.5
The State argues that the superior court was not clearly
erroneous in finding that A.M.'s pre-incarceration conduct,
including the acts of sexual abuse for which he was imprisoned,
evidenced a conscious disregard for his parental duties. We
agree. Ample evidence supports the superior court's finding
that, objectively viewed, A.M.'s shiftless lifestyle, frequent
absences from home, drug and alcohol abuse, physically
assaultive conduct, and sexually abusive acts toward his
stepdaughter manifested a disregard for his obligations as a
parent. The superior court's finding of conscious disregard was
not clearly erroneous.
2. Destruction of the Parent-Child Relationship
The second prong of the abandonment test requires the
State to show that the parent's disregard has caused a
destruction of the parent-child relationship. In re B.J., 530
P.2d at 749.
To support its claim that the parent-child relationship
was destroyed, the State relied below, as it does here, on the
testimony of Kathryn Donely Ziegler, an expert in child welfare
placement work who had extensive experience in the placement of
special needs children. Ziegler's testimony addressed the
concept of a "psychological parent." Ziegler explained:
There can be the parents who gave you birth,
the parents who gave you early care, the
parents who help you grow up and grow and
develop and . . . are, in fact, in a
relationship with you in an ongoing sort of
way. The distinction I would always make
with kids who are in an adoption or foster
care status is over here are the parents who
are responsible for you, for producing you
. . . , but that is not always the same
person who [is], in fact, going to help you
get grown, who is going to stay connected
with you through the rest of your life; and
it's that parent, it's that, so to speak,
that psychological parent that we really have
to search out for kids and make sure that
person is available to the kids.
Ziegler went on to state her opinion that the current
foster mother of A.M.'s children appeared to have become the
children's psychological parent:
I think [the children] have this fix on their
present foster parent as being the
significant and psychological parent in their
lives because she's been there. I mean when
these kids are sick in the middle of the
night she's there. When these kids are
crying, worried about something, she's the
one that they turn to, you see, so she
becomes the psychological parent and, of
course, even [M.M.] was very young when he
came to her as a small child still suffering
what he had experienced in life. So -- but I
don't mean to diminish the role of the father
in this case, he's important to these
children, he will be important in their life
span. I mean because people have these
feelings about, well, that's my dad . . . .
But as far as being the psychological parent
I think it's pretty clear . . . that [the
foster mother] . . . is, indeed, the
psychological parent of both of these kids.
The superior court found Ziegler's testimony compelling
and relied on it in concluding that A.M.'s conscious disregard of
his parental duties had resulted in the destruction of the parent-
child relationship. Specifically, the court determined that A.M.
was no longer the psychological parent of his children, a role
that, in the court's view, had been taken on since A.M.'s
incarceration by the children's foster mother. The court
believed the surviving relationship between A.M. and his children
to be "akin to the relationship between a child and an uncle the
child sees only occasionally: love and respect, but not a
parental relationship."
The State concedes that "[A.M.] was very much a part of
his children's lives before he was incarcerated, and while
incarcerated has continued to take an active interest in them."
The State nevertheless contends that, even though A.M. did not
abandon M.M. and S.M. "in the normal sense of the term,"
abandonment was established. We find this argument problematic
in two respects.
a. Psychological Parenthood as
the Equivalent of an Adequate Parent-Child
Relationship
The superior court found that, despite the "love and
affection" between A.M. and his children, A.M.'s parent-child
relationship had been destroyed because the children's foster
mother had become their psychological parent. This finding
necessarily suggests that a complete destruction of the parent-
child relationship need not be proved to establish abandonment.
Instead, a qualitative diminution of the original parent-child
relationship will suffice under certain circumstances -- those
circumstances being defined by the concept of psychological
parenthood.
However, use of the concept of psychological parenthood
in this manner has troubling implications. For example,
Ziegler's testimony, when applied in the context of a typical
divorce, would seem to indicate that a parent who is awarded
primary custody of the children will almost certainly assume the
role of psychological parent, whereas the non-custodial parent,
lacking the ability to "be there,"will be relegated to some
lesser form of bond. If, as the superior court appears to have
found, being a psychological parent is a necessary ingredient for
an adequate parent-child relationship, then termination might
routinely be justified for the non-custodial parent in a divorce.
This, of course, is not the law. As illustrated by the
foregoing example, the absence of a "psychological parent" bond
cannot, standing alone, be equated to the destruction of a parent-
child relationship. This is not to say that the concept of
psychological parenthood is invalid. However, concepts developed
and applied within the spheres of social science do not always
mesh neatly with rules traditionally applied within the spheres
of the law -- legal rules developed for the regulation of
individual rights. It is one thing to say that psychological
parenthood is a legitimate and useful concept in the placement of
special needs foster children; it is quite another to conclude,
as rigid legal doctrine, that psychological parenthood is the
sole legal determinant of a viable parent-child relationship in
termination of parental rights cases. Our own decisions have
never ascribed to the latter proposition.6 The State cites no
authority -- legal or scientific -- to support such a view, and
we are aware of none.
b. Disregard of Parental
Obligations and Destruction of the Parent-
Child Relationship
The superior court's reliance on the foster mother's
psychological parent role in finding the destruction of the
parent-child relationship between A.M. and his children is
problematic for another reason. As we have already indicated,
under the second prong of the abandonment test, the court must
determine that the parent's "conscious disregard . . . led to the
destruction of the parent-child relationship." E.J.S., 754 P.2d
at 751 (emphasis added). An integral part of this requirement is
the existence of a causal connection between the parental
disregard found under the first prong of the test and the
destruction of the parent-child relationship found under the
second.
Thus, under the second prong of the abandonment test,
it is insufficient to find parental disregard coupled with a
destruction of the parent-child relationship brought about by
some other cause. The destruction must be brought about by the
acts of the parent, and in order to constitute abandonment, the
acts of the parent must be willful. In re B.J., 530 P.2d at 750
n.12; see also Nada A., 660 P.2d at 439.
Here, the parental disregard relied on by the superior
court in finding abandonment consisted of A.M.'s pre-
incarceration conduct. Yet the court's conclusion that A.M.'s
parent-child relationship had been destroyed was based on the
existence of a psychological parent relationship between the
children and their current foster mother, and the consequent
absence of such a relationship between A.M. and his children.
From the record, it seems clear that the relative
distancing of A.M.'s relationship with his children and their
formation of a close relationship with their foster mother
resulted not from A.M.'s pre-incarceration conduct, but rather
from the fact of his incarceration. Ziegler did express the
opinion that A.M. was not a psychological parent to his children.
However, Ziegler's opinion was based on the amount of time that
had elapsed since the children had been removed from A.M.'s
custody, not on the nature or effect of A.M.'s conduct toward the
children prior to his arrest. When asked whether A.M. was the
psychological parent, Ziegler replied:
Well, I couldn't believe that to be the case
given the ages of the children at the last
full parenting contacts that they've had.
I'm sure that they recognize -- certainly
[M.M.] does recognize him as his dad, I'm
sure of that. I'm not clear that [M.M.]
understands what all of that means. I think
he and [S.M.] have this fix on their present
foster mother as being the significant and
psychological parent in their lives because
she's been there.[7]
The superior court made extensive and detailed findings
concerning the harm that A.M.'s criminal and anti-social conduct
caused to his children. These findings are supported by the
record. Nevertheless, the State did not attempt to prove, and
the court did not purport to determine, the nature of the parent-
child relationship that existed at the time A.M. was arrested and
his children were removed from his custody. Despite the evidence
indicating that A.M.'s disregard of his parental responsibilities
had harmed his children, the superior court did not find that
A.M.'s conduct had already destroyed the parent-child
relationship when he was arrested and incarcerated for his
current offenses; nor did the court find that A.M.'s anti-social
conduct, rather than his post-arrest separation, was directly
responsible for destroying the parent-child bond.
In sum, to the extent the record supports the
conclusion that A.M.'s parent-child relationship has been
destroyed, that destruction appears to have resulted from the
fact of his incarceration. However, A.M.'s incarceration could
not serve as the proper basis for a finding of destruction of the
parent-child relationship, since it was not the conduct upon
which the court relied in finding that A.M. had consciously
disregarded his parental obligations.8 Conversely, the conduct
involved in A.M.'s conscious disregard of his parental
obligations was not the conduct that "led to the destruction of
the parent-child relationship."
The superior court's conclusion that A.M.'s disregard
of his parental responsibilities led to the destruction of his
parent-child relationship is not supported by substantial
evidence and is therefore clearly erroneous.
C. Inability to Provide Care
The State alternatively contends that the superior
court's order terminating A.M.'s parental rights based on the
CINA status of his children can be affirmed even if the court's
finding of abandonment cannot be sustained. The State points out
that, given A.M.'s disregard of his parental responsibilities, he
clearly lacked the ability to provide his children with care.
The State argues that, for this reason, A.M.'s children could
properly be adjudicated children in need of aid under AS
47.10.010(a)(2)(A), regardless of whether A.M.'s conduct amounted
to abandonment.
The State's argument is to a certain extent plausible.
Abandonment is but one way of establishing CINA status under AS
47.10.010(a)(2)(A) for purposes of terminating parental rights.
Subsection (a)(2)(A) also applies when no parent, guardian,
custodian, or relative is willing and able to provide care. See
In the Matter of J.L.F., 828 P.2d at 170. Unlike abandonment,
proof of parental inability to provide care does not require a
showing that the parent-child relationship has been destroyed.
The superior court found that, in disregarding his
parental responsibilities to his children, A.M., in effect,
failed in "his obligation to provide for their physical,
emotional, mental and social needs." This finding is arguably
tantamount to a finding of A.M.'s inability to care for his
children, since "care"has been defined as providing "for the
physical, emotional, mental, and social needs of the child." AS
47.10.990(1); In the Matter of J.L.F., 828 P.2d at 169. As we
have indicated in discussing the issue of parental disregard,
there is substantial evidence in the record to support this
finding.9
Nevertheless, the superior court did not expressly
conclude that A.M.'s children were in need of aid under AS
47.10.010(a)(2)(A) due to A.M.'s inability to provide for their
care. Instead, the court based its finding of CINA status on the
conclusion that A.M. had abandoned the children, a conclusion we
have found to be clearly erroneous. More significantly, we have
made it clear that, "[w]hile a finding of inability to care would
be grounds for jurisdiction under subsection (a)(2)(A), that
finding must also extend to any relatives who are in fact caring
for or willing to assume care." In the Matter of J.L.F., 828
P.2d at 170. Here, even if we were to construe the finding of
parental disregard that the superior court made in connection
with the abandonment issue as an implied finding of inability to
provide care, the superior court failed to enter findings on a
material element of inability: the lack of any relatives caring
or willing to provide care.10 See id. at 170 & n.11.
We accordingly conclude that the superior court's
finding of CINA status cannot be affirmed on the alternative
ground of inability to provide care. We therefore find it
necessary to vacate the disputed termination order and to remand
this case for further consideration of the issue of inability to
provide care.
D. Remaining Substantive Issues
Although the challenged termination order must be
vacated, we think it necessary to address the remaining
substantive issues raised by A.M. in order to clarify the posture
of the case on remand.
1. The Likelihood of A.M.'s Conduct Continuing
To justify termination of parental rights following a
child's CINA adjudication, the State must prove by clear and
convincing evidence that the child is a child in need of aid "as
a result of parental conduct"and that the conduct "is likely to
continue to exist." AS 47.10.080(c)(3); see also CINA Rule
18(c)(1); Nada A., 660 P.2d at 440.
In the present case, after concluding that M.M. and
S.M. were children in need of aid as a result of A.M.'s conduct,
the superior court found that
[A.M.] is highly likely to continue to
abuse drugs and alcohol, to commit crimes
(especially assaultive crimes in the context
of domestic disputes and sexual offenses
against children, but also property crimes
given his extensive criminal record, his lack
of success in substance abuse treatment, his
poor prognosis for sexual offender treatment,
his failure even to obtain anger management
counseling, and his characterological
problems).
These express findings are supported by evidence in the
record. Although A.M. points to contrary evidence that he
presented, it is not this court's job to reweigh the evidence
when the record provides clear support for the superior court's
ruling. Our review of the record convinces us that the superior
court's ruling is not clearly erroneous.
We emphasize that just as incarceration is not conduct
under a physical abandonment theory, see supra note 5, neither is
incarceration itself "parental conduct"within the meaning of AS
47.10.080(c)(3). Thus, while long-term incarceration of a parent
can result in a child becoming a child in need of aid under AS
47.10.010(a)(2)(A) under an inability to provide care theory,
such incarceration is not a sufficient basis to justify
termination of parental rights under AS 47.10.080(c)(3). In this
case we understand that the trial court did not rely on A.M.'s
long-term incarceration, but on his continuing serious criminal
and anti-social conduct.
2. Likelihood of Physical and Emotional
Harm if A.M.'s Rights are Not Terminated
As a prerequisite to termination of parental rights
under ICWA 102(f), 25 U.S.C. 1912(f) (1988), and Alaska Child
in Need of Aid Rule 18(c)(2), the State must prove beyond a
reasonable doubt that continued custody of the child by the
parent is likely to result in serious emotional or physical
damage to the child.
a. Physical Harm
The superior court specifically found, beyond a
reasonable doubt, that A.M.'s daughter was likely to suffer
sexual abuse if placed in his custody; that both children were
likely to suffer physical abuse resulting from A.M.'s domestic
violence; and that both were likely to suffer physical
deprivation due to A.M.'s inability to meet their needs on a
consistent, ongoing basis.
A.M. argues that the State failed to allege the
likelihood of future physical harm and that the evidence it
presented failed to prove such harm beyond a reasonable doubt.
A.M.'s first argument is mistaken. The State's
petition expressly alleged that the children would be "at risk of
sexual abuse, physical harm, neglect or abandonment due to
substance abuse or criminal behavior leading to further
incarceration" unless A.M. completed a long-term treatment
program for sexual offenders and reversed his long-standing
personality traits and behavioral trends.
A.M.'s second argument is unpersuasive. The superior
court's findings on the issue of future physical harm are amply
supported by the record.
b. Emotional Harm
A.M. claims that it was error for the superior court to
consider, in assessing the likelihood of emotional harm in the
event of a return of custody to him, factors such as the
prolonged separation that would inevitably occur before the
restoration of custody and the need, in the interim, to assure
the stability of the bonds the children had formed with their
"psychological parent." A.M. contends that these considerations
are irrelevant to whether the children would suffer emotional
damage if they returned to him.
It is true that mere evidence that a willing custodian
other than the parent would do a better job than the parent does
not in itself suffice to support a finding of likely emotional
harm. See Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,593 (Bureau of Indian
Affairs, Dep't of the Interior 1979). But the close ties the
children enjoyed to their foster mother and the effects A.M.'s
prolonged separation would likely have on their mental health if
eventually returned could properly be considered as relevant
evidence bearing on the issue of likely emotional harm. Three
expert witnesses addressed this subject and their testimony
supports the court's findings. The superior court was not
clearly erroneous in finding that continued custody by A.M. would
likely cause the children serious emotional harm.
3. Active Remedial Efforts by the State
Under ICWA 102(d), before parental rights may be
terminated, the State has the burden of showing by a
preponderance of the evidence that "active efforts have been made
to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful."25 U.S.C. 1912(d) (1988);
see also CINA Rule 18(c)(2); K.N. v. State, 856 P.2d 468, 476
(Alaska 1993).
The superior court found that DFYS had "made active
efforts to provide remedial services and rehabilitative programs
to prevent the breakup of this family but those efforts have
proved unsuccessful . . . ." In the superior court's view, the
State had done everything "feasible given [A.M.'s] incarceration
status . . . ."11 In reaching this conclusion, the court observed
that "[A.M.] has expressed a willingness and desire to undergo
sex offender treatment while incarcerated, but substantial doubt
on the motivation of that expressed willingness was raised by the
State's expert witnesses. The court concludes that Mr. [A.M.] is
not sincerely interested in changing his deviant sexual behavior
. . . ."
The extent of active efforts the State must make on
behalf of a parent whose access to remedial assistance is
hampered by incarceration is an issue that remains largely
unresolved.12 The State does not deny that the "reunification
plan" it formulated for A.M. could not realistically be attained
given his imprisonment and that DFYS personnel generally failed
to intervene actively on A.M.'s behalf to assure that prison
officials enrolled A.M. in suitable institutional programs. The
State simply claims that, by preparing a reunification plan and
encouraging A.M. to seek services available within the
institution, it fulfilled its duty of making active efforts to
provide remedial services.
To the extent the State's argument suggests that this
court create an exception to ICWA's requirement of active
remedial efforts for cases in which rehabilitation is doubtful
and in which active remedial efforts would be "unreasonably"
costly or time-consuming, the suggestion seems unjustified. We
have held that no judicial exception to ICWA can be created.
A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982). Neither
incarceration nor doubtful prospects for rehabilitation will
relieve the State of its duty under ICWA to make active remedial
efforts.
This does not mean that a parent's incarceration is
wholly irrelevant to the scope of active remedial efforts the
State is required to undertake. The circumstances surrounding a
parent's incarceration may have a direct bearing on what active
remedial efforts are possible. In the present case, for example,
it would be difficult to conclude that the practical obstacles
posed by A.M.'s incarceration -- the difficulty of providing
resources to inmates generally, the unavailability of specific
resources in A.M.'s case, and the length of time A.M. will remain
incarcerated -- are factors that the superior court was barred
from considering when it decided whether the State had made
active remedial efforts. Likewise, we have recently
noted that, for purposes of determining the sufficiency of the
State's remedial efforts, the superior court may properly
consider a parent's demonstrated lack of willingness to
participate in treatment. See K.N., 856 P.2d at 477. Case law
in other jurisdictions appears to be in accord with this general
view. See Matter of Maricopa County Juvenile Action No. JS-
8287, 828 P.2d 1245, 1254 (Ariz. App. 1991); Matter of M.E.M.,
679 P.2d 1241, 1244 (Mont. 1984); State ex rel. Juvenile Dep't of
Multnomah County v. Woodruff, 816 P.2d 623, 626 (Or. App. 1991).
In this regard, however, a note of caution is
necessary. The foregoing cases involve parents who actively
refused to participate in or cooperate with treatment efforts;
these cases support the general proposition that, once active
remedial efforts have been undertaken, a parent's actual
resistance to or rejection of assistance may properly be
considered in determining whether additional efforts were
required. We have never suggested that the scope of the State's
duty to make active remedial efforts should be affected by a
parent's motivation or prognosis before remedial efforts have
commenced. To vary the scope of the State's ICWA duty based on
subjective, pre-intervention criteria such as a parent's
motivation or treatment prognosis might defeat the purpose of the
active remedial effort requirement, for it would enable the State
to argue, in all doubtful and difficult cases, that it had no
duty to make active remedial efforts.
In the present case, the superior court's finding of
compliance with the ICWA requirement presents a close question,
particularly because the court's assessment of the active efforts
that the State should have made was apparently influenced by its
perception that, despite his avowed willingness to participate in
treatment, A.M. had made no genuine commitment to rehabilitation
and his prospects for rehabilitation were poor. Since we must in
any event remand this case for reconsideration on the issue of
inability to provide care, we believe it appropriate to require
that the superior court also reconsider the issue of ICWA
compliance in light of the factors outlined in this opinion. In
addressing the issue on remand, the court should allow the
parties to present updated information concerning any treatment
A.M. may have received since the court's initial ruling.
III. PROCEDURAL ISSUES
In addition to his substantive arguments, A.M. raises
two procedural issues that call for only brief discussion.
A. Denial of Bifurcation
Prior to his hearing, A.M. moved for bifurcation,
seeking to have the adjudicative phase, in which the court
determines whether the children are in need of aid under AS
47.10.010, heard before the dispositional phase, in which the
court determines whether the requirements for termination have
been met under AS 47.10.080(c). The superior court denied this
motion. A.M. contends that the failure to bifurcate amounted to
an abuse of discretion and violated his right to due process.
We find no merit to this argument. Although the
adjudicative and dispositional phases of children's proceedings
are typically heard separately, CINA Rule 18(b) expressly makes
joinder of the two phases a matter of discretion for the superior
court:
Upon a showing of good cause and with
adequate notice to the parties, an
adjudication hearing and a termination
hearing may be consolidated.
Here, a significant amount of the evidence presented
below was relevant to, and could have been admitted at, both
phases of the termination proceeding. Because A.M.'s children
had been in foster care for a lengthy period of time prior to the
filing of the petition for termination, the evidence on the issue
of disposition was well developed prior to the CINA adjudication,
and A.M. received ample notice of the State's claims. A.M. has
failed to point to any specific circumstances indicating an abuse
of discretion by the superior court. He has also failed to cite
any authority supporting the proposition that bifurcation is per
se necessary to satisfy the requirements of procedural due
process. Finally, A.M. has failed to make a convincing showing
of prejudice. The superior court did not abuse its discretion in
failing to bifurcate the termination trial.
B. Absence of the Guardian Ad Litem
A.M. additionally claims error because the children's
guardian ad litem did not attend the termination trial. A.M.
failed to raise this issue below; consequently, we review only
for plain error. Plain error exists when an error affects
substantial rights and is obviously prejudicial. R.C. v. State,
760 P.2d 501, 505 n.14 (Alaska 1988). Because the report of the
guardian ad litem favored termination of parental rights and
because the guardian's absence enabled A.M. to ensure that the
report would not be admitted as evidence, there appears to be a
strong possibility that A.M.'s failure to object below amounted
to a sound tactical choice. In any event, given the guardian's
position favoring termination, the guardian's absence cannot be
characterized as "obviously prejudicial." Id. The record
discloses no plain error.
IV. CONCLUSION
The superior court's finding of abandonment was clearly
erroneous; this error requires that the order of August 6, 1993,
terminating A.M.'s parental rights be vacated. A remand is
necessary, however, for further proceedings to determine whether
A.M.'s children should be adjudicated CINA due to A.M.'s
inability to provide care and, if so, whether termination of
parental rights is warranted under that theory. On remand, the
superior court should also reconsider whether the State has
complied with ICWA's requirement of active remedial efforts.
Accordingly, the order terminating A.M.'s parental
rights is VACATED, and this case is REMANDED for further
proceedings consistent herewith.
COMPTON, Justice, with whom RABINOWITZ, Justice, joins,
concurring.
Once again the textual fabric of AS 47.10.080 confines
us to an uncomfortable fit. See Nada A. v. State, 660 P.2d 436,
441-43 (Alaska 1983) (Compton, J., concurring). A.M. is serving
a prison term of almost ten years for sexually abusing his
stepdaughter. However, we are unable to affirm the termination
of his parental rights. I agree with our disposition of the
legal issues in this case because I do not believe the wording of
the statutes give us any choice. Further, the doctrine of stare
decisis commands that we follow statutory interpretation
established by precedent. I write separately to express my
continuing belief that a legislative response to this issue is
appropriate, and also that it is now long overdue.
When we, as a society, terminate parental rights, we
sever the fundamentally important relationship between parent and
child. In our society this relationship is highly valued, yet at
times it must be severed. We sever it only when the health and
safety of the child mandate that we do so. The balancing of the
parental relationship against the health and safety of the child
is a complex decision replete with social policy choices.
However, the task of determining desirable social policy in the
sphere of preservation or termination of the parent-child
relationship is a task which courts are not equipped to
undertake. It is not a sphere in which the judiciary should
engage in social engineering. In Nada A., I urged the
Alaska Legislature to define more clearly the effect of
incarceration on parental rights. Id. at 441. I do so again.
What is needed is an informed social policy. The fact that
difficult social policy choices must be made is not a
justification for ignoring the issues from which the difficulties
have sprung. I think it unfortunate that the legislature
continues to ignore the effect of a parent's incarceration on a
child and on the continuation of the parent-child relationship.
_______________________________
* Sitting by assignment made under article IV, section 16
of the Alaska Constitution.
1 DFYS did not seek to terminate S.L.S.'s parental rights
at that time.
2 Although the State petitioned only to terminate A.M.'s
parental rights and did not request termination of S.L.S.'s
parental rights, Judge Carpeneti's August 6, 1993, order
purported to terminate the parental rights of both parents.
S.L.S. did not contest Judge Carpeneti's order and, on November
23, 1993, executed a voluntary relinquishment of her parental
rights. Hence, the propriety of the court's order with respect
to S.L.S. is now moot.
3 In alleging that M.M. and S.M. were children in need of
aid for purposes of termination, the State did not attempt to
rely on A.M.'s stipulation to the original, October 23, 1990,
CINA petition.
4 Alaska Statute 47.10.010(a)(2) specifies that the court
may order the State to assume custody of a minor who is found to
be a child in need of aid as a result of
(A) the child . . . having no
parent, guardian, custodian, or relative
caring or willing to provide care, including
physical abandonment by
(i) both parents[;]
. . . .
(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 . . . or the failure of the
parent . . . adequately to supervise the
child;
(D) the child having been, or being
in imminent and substantial danger of being,
sexually abused . . . by the child's parent
. . .;
. . . .
(F) the child having suffered
substantial physical abuse or neglect as a
result of conditions created by the child's
parent . . . .
5 We have previously suggested that incarceration cannot
in itself constitute physical abandonment because it does not
involve willful conduct. See Nada A., 660 P.2d at 439; see also
E.J.S., 754 P.2d at 752 n.4; In re B.J., 530 P.2d at 750 n.12.
However, we have never suggested that willful conduct that
results in incarceration cannot be considered in determining
disregard of parental obligations in the abandonment context.
See E.G.S., 754 P.2d at 752 n.4; Nada A., 660 P.2d at 441
(Compton, J., concurring).
6 By way of illustration, the present case stands in
sharp contrast to the circumstances in which we recently found
destruction of the parent-child relationship in E.J.S., 754 P.2d
at 751. There, testimony showed that the child, L.M.S., had
virtually no exposure to her natural father since infancy; that
she considered her stepfather to be her natural father; that
L.M.S had only recently discovered that her stepfather was not
her real father; that even then L.M.S. never asked for detail
about her natural father; and that no psychological bond or
familial relationship at all existed between L.M.S. and her
natural father.
7 In this regard, the Findings and Conclusions entered by
the superior court are somewhat ambiguous. As a conclusion of
law, the court stated that "[t]he disregard shown by [A.M.] for
[his] parental obligations has led to the destruction of the
parent-child relationship . . . ." In reaching this conclusion,
the court, recognizing the decision in Nada A., indicated that it
had considered "all of the past conduct"of A.M., but not the
"mere fact of his incarceration . . . ." This legal conclusion
suggests a predicate factual determination that A.M.'s pre-arrest
conduct caused the destruction of the parent-child relationship.
However, the superior court's findings of fact do not
draw any specific connection between A.M.'s pre-incarceration
conduct and the destruction of his parent-child relationship. On
this issue, the findings of fact merely state that A.M. is not
the psychological parent of M.M and S.M. and that their current
foster mother "fills the role in their lives of psychological
foster parent. Accordingly, the parent-child relationship
between [A.M.] and [M.M.] and between [A.M.] and [S.M.] has been
destroyed." This finding suggests that, in the court's view, it
was A.M.'s replacement by the foster parent rather than his pre-
incarceration disregard of parental obligations that destroyed
the parent-child relationship. As we have pointed out in the
text of this opinion, this latter theory of destruction is the
only one that finds substantial support in the evidence.
8 Indeed, A.M.'s incarceration is not the type of willful
act upon which abandonment may be based. Nada A., 660 P.2d at
439. The State nevertheless invites us to hold that A.M. was
incarcerated as a result of his voluntary acts, that his
incarceration was a foreseeable consequence of his misconduct,
that the inability to provide for his children resulting from
A.M.'s incarceration is therefore a result of his voluntary
conduct, and that, in this sense, A.M.'s parent-child
relationship has been destroyed by his pre-incarceration
disregard of his parental duties. In support of this theory, the
State cites a number of cases that liken voluntary criminal acts
to acts of abandonment. See, e.g., Huston v. Haggard, 475 S.W.2d
330, 333 (Tex. App. 1971); In re Dobbs, 531 P.2d 303 (Wash. App.
1975).
The State's theory is essentially the same theory
addressed by Justice Compton's concurrence in Nada A., 660 P.2d
at 441. The gist of Justice Compton's Nada A. concurrence,
however, was that termination of parental rights under this
theory was impermissible under the statutory framework then in
existence. Justice Compton urged the legislature to amend Alaska
law to allow termination under this theory. Id. The statutory
framework in existence when Nada A. was decided remains
essentially unchanged, despite the concurring opinion. We
decline the State's invitation to adopt this theory in the
absence of a statutory change.
9 The conduct that led the court to find parental
disregard -- and, arguably, by extension, inability to provide
care -- consisted of A.M.'s substance abuse, violence, excessive
mobility, and criminal acts, including A.M.'s sexual abuse of his
stepdaughter. Notably, in A.H. v. State, 779 P.2d 1229, 1232
(Alaska 1989), this court indicated that a continuation of CINA
status could in part be justified by the children's unwillingness
and inability to live with a parent who was imprisoned for sexual
abuse.
10 It is the State's burden to prove that there are no
suitable relatives. In the Matter of J.L.F., 828 P.2d at 170
n.11. We note that the superior court's finding of abandonment
and its order terminating A.M.'s parental rights also extended to
S.L.S., the mother of the children. Hence, any implicit finding
of inability to provide care obviously extended to S.L.S., who
has not contested the court's ruling.
11 The court's findings enumerate DFYS's efforts. These
included monitoring A.M.'s care of the children before he was
incarcerated; facilitating monthly visits at jail (under the
court's order); facilitating daily telephone contacts at first,
eventually dropping to weekly telephone contacts; and
promulgating a reunification plan in October 1991, while A.M. was
imprisoned, which was "centered around completing whatever sex
offender treatment was needed (and obtaining an in-depth
psychological evaluation to determine appropriate treatment) and
completing appropriate alcohol/drug abuse treatment."
12 The "active efforts"required by ICWA have not been
defined. According to one authority, "[t]he distinguishing word
in the remedial services and rehabilitative programs' section is
the word _active._" Craig J. Dorsay, The Indian Child Welfare
Act and Laws Affecting Indian Juveniles Manual 157 (1984).
Dorsay quotes one of ICWA's drafters, who distinguishes between
active and passive rehabilitative and remedial efforts:
Passive efforts are where a plan is
drawn up and the client must develop his or
her own resources towards bringing it to
fruition. Active efforts, the intent of the
drafters of the Act, is where the state
caseworker takes the client through the steps
of the plan rather than requiring that the
plan be performed on its own. For instance,
rather than requiring that a client find a
job, acquire new housing, and terminate a
relationship with what is perceived to be a
boyfriend who is a bad influence, the Indian
Child Welfare Act would require that the
caseworker help the client develop job and
parenting skills necessary to retain custody
of her child.
Id. at 157-58.
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