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Matter of J.L.F and K.W.F. (3/15/96), 912 P 2d 1255
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Notice: This opinion is subject to 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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of: )
) Supreme Court Nos. S-6230/6240
J.L.F. and K.W.F., )
) Superior Court No.
Minors Under the Age of ) 3AN-88-589/590 CP
Eighteen (18) Years. )
______________________________)
)
K.F., Mother of the Above ) O P I N I O N
Named Minors, )
)
Appellant and ) [No. 4327 - March 15, 1996]
Cross-Appellee, )
)
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
)
Appellee and )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski and John Reese, Judges.
Appearances: G. Blair McCune, Assistant
Public Defender, John B. Salemi, Public
Defender, Anchorage, for Appellant and Cross-
Appellee. Dianne Olsen, Assistant Attorney
General, Anchorage, Bruce M. Botelho,
Attorney General, Juneau, for Appellee and
Cross-Appellant. Barbara L. Malchick, Deputy
Public Advocate, Brant McGee, Public
Advocate, Anchorage, for Cross-Appellant
Guardian Ad Litem.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
MATTHEWS, Justice.
EASTAUGH, Justice, with whom COMPTON, Justice, joins,
concurring in part and dissenting in part.
I. Introduction
In our prior opinion, In re J.L.F. and K.W.F., 828 P.2d
166 (Alaska 1992), we summarized the factual and procedural
context this case presented:
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. K.F. appeals both the CINA
finding and the termination of her parental
rights.
Id. at 167 (footnote omitted). K.F. contended that the superior
court did not have jurisdiction to make a CINA adjudication under
AS 47.10.010(a)(2)(A) because the State did not prove that there
were no relatives available to provide care for the children.1
Id. at 169. We accepted K.F.'s argument that a CINA
determination under subparagraph (A) required a finding that
there existed no "relative caring or willing to provide care."
Id. at 170. The State also argued that the CINA determination
could be upheld under subsection (C) which requires "an imminent
and substantial risk that the child will suffer [substantial
physical] harm as a result of the actions done by or conditions
created by the child's parent . . . ." We noted that certain
findings made by the trial court seemed to relate to subsection
(C) but that the court had declined to base its ultimate CINA
finding on (C). Id. at 170. We ordered a remand, directing the
trial court to reconsider its determination as to whether the
children were in need of aid under subsection (C). If the
superior court determined on remand that the children were not in
need of aid under subsection (C) it was directed to determine
whether there were relatives caring or willing to provide care
for the children. Id. at 170 n.11.
On remand, the superior court concluded that the record
did not support "a finding that these children would be exposed
to 'imminent' risk of substantial harm"pursuant to subsection
(C). In reaching this conclusion the court noted that the
State's presentation at the original trial was complete.
Therefore, a further hearing on this issue was not warranted.
The court concluded that "[t]he facts of this case do not support
termination under [subsection (C)]." The court then sought to
determine whether it had jurisdiction under subsection (A) by
ordering a supplemental hearing on the issue of whether there was
"a relative, custodian or guardian willing to provide proper care
for either of these children."2
Prior to the supplemental hearing, the State filed an
amended petition for termination of parental rights. In addition
to alleging jurisdiction under subsection (A), the petition
alleged that K.F.'s parental rights should be terminated under AS
25.23.180(c)(2) because she unreasonably withheld her consent to
adoption.3
At the supplemental hearing on remand, K.F.'s aunt,
L.H., who resides in the state of Washington, testified that she
and her husband were willing to care for the children. At the
conclusion of the hearing the trial court found that L.H. and
T.H. were not willing to care for the children and concluded that
the children were children in need of aid under subsection (A).
The court entered an order terminating K.F.'s parental rights and
responsibilities. The following findings and conclusions of the
trial court pertain to the question of the existence of relatives
caring or willing to provide care for the children:
8. There is clear and convincing
evidence that there are no relatives caring
or willing to care for the above-named
minors. This finding is based in part upon
the following evidence.
a. The parties stipulated that
the only relatives willing to provide care
for the minors are [T.H. and L.H.], who
reside in Pasco, Washington.
b. Although a positive homestudy
through the Interstate Compact for the
Placement of Children was received pertaining
to the home of [T.H. and L.H.], [L.H.]
intentionally and repeatedly misled the
department about the location of the mother
of the children when the department was
attempting to serve the mother with the
original petition for termination of parental
rights. In fact, the mother had been
residing with [T.H. and L.H.].
c. The department denied
placement with [T.H. and L.H.] (1) because it
had concerns that [T.H. and L.H.] were
motivated to have the children placed with
them so the mother could provide care for the
children and the department had serious and
justified concerns about the mother's ability
to safely care for the children, and (2)
because [T.H. and L.H.] exhibited a lack of
ability to cooperate with agencies involved
in providing services for these children.
The department's decision not to place the
children with [T.H. and L.H.] was justified.
The actions of [T.H. and L.H.] reflect their
inability to care for these children.
d. The testimony of [L.H.] also
reflected an unrealistic plan that the
children be placed with her so they could
ultimately be placed with their biological
mother.
e. [T.H. and L.H.] have never
contacted the minors, personally, telephoni
cally, or in written form.
9. No relatives exist who are able to
provide care for these children, as "caring"
is defined in AS 47.10.990(1).
10. AS 47.10.010(a)(2)(A) which
provides this court with jurisdiction if
there is "no parent, relative, . . . caring
or willing to provide care"must be read to
include an ability to care. Mere wishful
thinking about one's willingness to provide
care is not sufficient.
The court also concluded that K.F. had unreasonably
refused to consent to adoption. The court made the following
findings and conclusions on this point:
11. There is clear and convincing
evidence that [K.F.] has unreasonably
withheld her consent to the adoption of the
above-named minors by [A.R.] and [S.M.],
pursuant to AS 25.23.180(c)(2). This finding
is based upon the following facts:
a. [K.F.] has refused to consent
to an adoption of the above-named minors by
[A.R.] and [S.M.].
b. The minors have resided in the
home of [A.R.] and [S.M.] for four years and
eight months.
c. [K.W.F.] is bonded to [A.R.]
and [S.M.], and any disruption of that bond
would cause extensive damage to him.
[J.L.F.] is attached to [A.R.] and [S.M.],
although it is likely he is not capable of
being bonded to anyone. A disruption of this
attachment would likely cause serious harm to
[J.L.F.].
d. Both children have extreme
special needs, as reflected in Department's
Exhibits 1 through 10. They are doing as
well as they are primarily due to the special
attention and skills of [A.R.] and [S.M.].
Any movement from their present placement
would likely cause [J.L.F.] to become
mentally ill and perhaps require
institutionalization in a mental hospital and
would likely cause [K.W.F.] to behave
aggressively and perhaps require
institutionalization in a juvenile detention
facility.
e. No family members who have
requested placement of the children with them
have ever communicated with these children.
f. [K.F.] led the department to
believe that she did not want to disrupt the
children's present placement by negotiating a
conditional relinquishment to the present
foster parents, which relinquishment was
never signed. It was not until September
1993 that [K.F.] stated her unequivocal
desire to contest this termination
proceeding.
K.F. appeals from the order of termination. She
presents three arguments: First, the trial court made an error of
law in considering T.H. and L.H.'s ability to provide care for
the children as a component of the "willing to provide care"
statutory standard. Second, even if ability to provide care is a
component of willingness, the trial court's conclusion that T.H.
and L.H. lacked willingness to provide care for the children is
clearly erroneous. Third, the trial court erred in concluding
that the unreasonable withholding of consent to adoption standard
of AS 25.23.180(c)(2) for termination of parental rights applied
to this proceeding.
The guardian ad litem (GAL) and the State cross-appeal,
contending that the trial court erred in failing to find the
children to be children in need of aid under subsections (C) and
(F) of AS 47.10.010(a)(2). We hold that each of the three
arguments presented on appeal by K.F. are correct and that the
arguments of the GAL and the State on cross-appeal are not
correct. We proceed to a discussion of these points.
II. Subsection (A) Does Not Call for an Assessment of
a Caregiver's Ability to Care.
In In re S.A. and D.A., ___ P.2d ___ (Op. No. 4314,
January 26, 1996), we ruled that
a child may not be adjudicated CINA under
[subsection (A)] on the grounds that the
child's parent or caregiver is unable to care
for the child if the parent or caregiver is
willing to care for the child. A parent's or
caregiver's ability to care may be considered
under the specific, explicit standards of AS
47.10.010(a)(2)(B)-(F).
Slip Op. at 17. This holding was based on the plain language of
subsection (A). "Subsection (A) allows a CINA adjudication if
there is no 'parent . . . caring or willing to provide care.'
Subsection (A) does not state 'having no parent . . . caring and
willing to provide care.'" Slip Op. at 11. Relevant to the
trial court's finding that the definition of care or caring
impliedly makes ability to care relevant under subsection (A)4 we
stated:
The State has argued that subsection (A)
covers ability to care because AS
47.10.990(1) states, "'care' or 'caring'
under AS 47.10.010(a)(2)(A) . . . means to
provide for the physical, emotional, mental,
and social needs of the child." See F.T. [v.
State, 862 P.2d 857, 861 & n.5 (Alaska
1993)]; J.L.F., 828 P.2d at 169. However,
plugging the definition in AS 47.10.990(1)
into subsection (A) results in the following:
"having no parent . . . providing for the
physical, emotional, mental, and social needs
of the child or willing to provide for the
physical, emotional, mental, and social needs
of the child." The statute still would not
require ability to care -- willingness is
enough.
Slip Op. at 11.
Our decision in S.A. and D.A. was not based solely on
the plain language of subsection (A), however. We also reviewed
the structure of AS 47.10.010(a)(2) and concluded that reading an
ability to care component into subsection (A) would give the
State broader power to assume custody of children than intended
by the legislature, and would tend to undermine the specific
grounds expressed in subsections (B) through(F). We stated:
An analysis of the structure and
purposes of the entirety of AS
47.10.010(a)(2) shows that while ability to
care is relevant under subsections (B)
through (F) of the statute, it is not
relevant under subsection (A), for three main
reasons. First, the State's interpretation
of subsection (A) would permit CINA
adjudications based on parenting deficiencies
much less severe than those covered under AS
47.10.010(a)(2)(B)-(F). Second, unlike
subsection (A), subsections (B) through (F)
set clear, specific standards for adjudica
ting a child CINA based on a parent's
inability to care. Third, permitting ability
to care to be considered under subsection (A)
would make subsections (B) through (F)
virtually superfluous.
. . . .
Under subsections (B) through (F), only
serious forms of parental misconduct can
support a CINA adjudication. Subsection (B)
deals with failure to provide needed medical
treatment. Subsection (C) concerns "substan
tial physical harm" caused by parental
conduct. Subsection (D) addresses sexual
abuse. Subsection (E) is about parental
encouragement of criminal conduct. And
subsection (F) speaks of "substantial
physical abuse or neglect." The legislature
thus intended for the State to be able to
assume custody of minors only to remedy
severe parenting deficiencies and prevent
significant harm to children.
But the State's reading of subsection
(A) would give the State the power to assume
custody over children for much less serious
types of parental misconduct and harm to
children. The State would define ability to
care as the ability to provide for the
physical, emotional, mental, and social needs
of a child, relying on AS 47.10.990(1). See
F.T., 862 P.2d at 861 & n.5; J.L.F., 828 P.2d
at 169. This interpretation would permit the
State to assume custody over any child who
had needs the child's parents could not meet.
Applied to the facts of this case, the
State's interpretation would justify
terminating N.A.'s parental rights on the
grounds that S.A. and D.A. would not "meet
their potential"with N.A. because she would
not be able to satisfy their needs for
"structure and consistency."
Slip Op. at 11-14. Our decision in S.A. and D.A. was made in the
context of a parent who was willing to provide care. It applies
as well to this case where there is a relative willing to provide
care because the terms "parent"and "relative"are parallel in
subsection (A).
III. The Trial Court Erred in Concluding That T.H. and
L.H. Were Not Willing to Care for the Children.
In a termination proceeding 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." A.M.
v. State, 891 P.2d 815, 820 (Alaska 1995); CINA Rule 15(c).
Findings of fact of the trial court must be upheld unless they
are clearly erroneous. A.M., 891 P.2d at 820; Alaska R. Civ. P.
52(a). We will determine that a trial court's findings are
clearly erroneous only if upon a careful and thorough review of
the record we have a definite and firm conviction that a mistake
has been made. See S.A. and D.A., Slip Op. at 5.
K.F.'s argument concerning the error claimed in the
trial court's factual finding assumes for the purposes of
argument that there is an ability component encompassed within
the "willing to care"standard of subsection (A). For purposes
of this argument we accept this assumption. We further consider
that the required ability component is such that it would be
satisfied by persons of average or normal parenting ability. As
Justice Eastaugh stated in his concurrence in In re S.A. and
D.A.:
The ability of a parent or relative to
provide care should be compared to a normal
level of parental fitness. For example, if
no person could successfully provide the care
required to cure an incurably-ill child,
general parental fitness would nonetheless be
sufficient to defeat jurisdiction under AS
47.10.010(a)(2)(A). For jurisdiction to be
found under subsection (A), the inability to
care would have to lead to a harm or a threat
of harm of a gravity comparable to that
presented by the circumstances specified in
other parts of AS 47.10.010(a)(2). . . .
According to the court, the State's
reading of subsection (A) in this case would
permit the State to assume custody over "any
child who has needs the child's parents could
not meet." Opinion at 13. As noted above, I
agree that such a reading would be too broad.
Slip Op. at 30-32 (Eastaugh, J., concurring).
At the request of the State, the Department of Social
and Health Services of the State of Washington conducted a
homestudy of T.H. and L.H. in June of 1990. The study was
admitted in evidence in the hearing on remand.5 It presents T.H.
and L.H. as normal well-adjusted people. The report concludes
that T.H. and L.H. "would be a good resource for the boys,"
stating:
[T.H. and L.H.] appear to have a stable
marriage and both want to have the boys.
Both are easygoing people and I feel would
not have unrealistically high expectations
for the boys. They want the boys to be with
family and they want to have a family, so are
doubly motivated. [T.H. and L.H.] enjoy
doing a lot of family activities and would
include the boys in these activities.
The trial court rejected the homestudy, finding that
T.H. and L.H. were not able to provide care for the children for
two reasons: first, that T.H. and L.H. had "an unrealistic plan
that the children be placed with [them] so they could ultimately
be placed with their biological mother;"and second, that in 1990
"[L.H.] intentionally and repeatedly misled the Department about
the location of the mother of the children when the Department
was attempting to serve the mother with the original petition for
termination of parental rights." According to the court,
misleading the State when it was attempting to serve process on
the mother "exhibited a lack of ability to cooperate with
agencies involved in providing services for these children."
The first reason, the unrealistic plan, is insufficient
to support a finding of inability for a number of reasons.
First, L.H. did not testify that she wanted to take the children
so that they "could ultimately be placed"with K.F., nor did
anyone else testify that this was T.H. and L.H.'s plan. L.H. did
testify that K.F. had lived with her and her husband for the past
several years and that she hoped K.F. would be allowed to
continue to live with them when the children were placed with
them. She and her husband planned to take care of the children.
However, they would observe K.F. with the children and hoped to
be able to allow K.F. to participate in their care. She also
testified that if the Alaska or Washington authorities thought it
was important that the mother not reside with the children she
would be guided by their directives. She testified that she had
reared K.F. for some seven years of K.F.'s childhood, that she
understood K.F.'s limitations, and that if K.F. lived with her
and the children K.F. would follow her rules and instructions.
She also testified that she wanted to adopt the children.
Second, while the State's witnesses testified that it
would be against the best interests of the children to move them
from their present long-term foster care placement, none of them
testified that having K.F. reside with the children and T.H. and
L.H. was in itself, apart from the harm the separation from the
foster parents would cause, an unrealistic plan or one that would
be detrimental to the children.6
Third, T.H. and L.H.'s actual plan was not
unchangeable. L.H. testified that she would work with the
Washington and Alaska authorities concerning the children's needs
and that if the authorities required that K.F. not live with them
that would be done. K.F. agreed that if necessary she would live
with an uncle in South Dakota.
We turn next to the second reason for the court's
finding of inability, that L.H. repeatedly misled the State
social worker who was trying to locate K.F. for service of
process purposes. The social worker, Huffman, testified on
direct examination that he "repeatedly"let L.H. know that he was
trying to contact K.F. so that the termination trial could go
forward, that L.H. was not candid with him, that finally he told
L.H. that he knew that K.F. was there and that L.H. then admitted
this and said that she was trying to protect K.F. On cross-
examination Huffman acknowledged department policy to note all
conversations, and that he had notes of only two conversations
with L.H., one on June 6, 1990, and one on June 20, 1990. On
redirect he testified that he may have made earlier calls to L.H.
("I may have called and just given her some information.") or
that he "may not have had more conversations than that during
that time frame . . . ." L.H. testified that when Huffman first
asked her if K.F. was "there"she was not. Subsequently, K.F.
did move in with T.H. and L.H. and L.H. so informed Huffman.
The trial court found that L.H. had "intentionally and
repeatedly misled the department about the location of the mother
. . . ." As that finding is supported by the testimony of
Huffman given on direct examination it is not clearly erroneous
and may not be set aside. However, the information provided by
this finding is too limited, taken alone, to supply a reliable
basis for concluding that T.H. and L.H. lacked the capacity to
cooperate with service providing agencies, or, more generally,
lacked normal parenting abilities. As there is no other evidence
adverse to T.H. and L.H. concerning their parenting abilities,
the trial court's conclusion on this point is clearly erroneous.
IV. The Trial Court Erred in Concluding That
Unreasonable Withholding of Consent to Adoption as
Provided in AS 25.23.180(c)(2) Was a Ground for
Termination of Parental Rights Applicable to This Case.
The trial court as an alternative ground for
terminating K.F.'s parental rights found that K.F. had
unreasonably withheld her consent to the adoption of the children
by the foster parents with whom they had been placed for four
years and eight months. The standard which permits termination
of parental rights for unreasonably withholding consent to
adoption is expressed in a section of the adoption statutes, AS
25.23.180(c)(2). See supra note 3. K.F. argues that in
proceedings under Chapter 10 of Title 47 parental termination
grounds are limited to those expressed in AS 47.10.080(c)(3).7
She argues that termination under AS 25.23.180(c)(2) is available
only when a petition for adoption has been filed8 and that
incorporating the standard of unreasonably withholding consent
into the CINA statutes permits termination merely because the
best interests of a child are furthered by the termination:
The state could argue that it would be
"unreasonable"for a parent not to consent to
an adoption which would place the child in a
setting with a significantly better chance of
success in life and terminate parental rights
based on that proposition. Such a result
would not only be absurd, but completely
antithetical to the respect for parental
rights recognized by this court and the child
in need of aid statutes.
In response, the State argues that AS 25.23.180(c)
explicitly applies to proceedings under AS 47.10 and that the
filing of an adoption proceeding is not required prior to
application of AS 25.23.180(c)(2) in CINA proceedings. In answer
to K.F.'s argument that the unreasonable withholding standard
could effect a termination of parental rights based solely on the
best interests of the child, the State argues that there is an
implied requirement that the parent who is unreasonably
withholding consent be unfit before this standard can be
employed.
While the statute clearly contemplates that the
unreasonable withholding of consent standard can be used in
certain CINA proceedings, it is less clear that this standard can
be employed in CINA proceedings which are conducted when no
adoption petition has been filed. Further, the broad
unreasonable withholding of consent standard is in marked
contrast to the specific standards for termination of parental
rights expressed in AS 47.10.010(a)(2) and 47.10.080(c)(3). Read
literally, it does permit termination of the parental rights of a
parent who does not have custody on the sole ground that
termination is in the best interest of the child. However, we
find it unnecessary to resolve the various questions raised by
the parties concerning application of the unreasonable
withholding of consent standard for two reasons.
First, CINA proceedings have an adjudicative and a
dispositional component. See CINA Rules Part VI, Rule 15 and
Part VII, Rules 16 through 20. At the adjudication hearing the
question is whether the child is a child in need of aid. CINA
Rule 15. At the disposition hearing the question is remedial:
"The purpose of a disposition hearing is to determine the
appropriate disposition of a child who has been adjudicated a
child in need of aid." CINA Rule 17. Termination of parental
rights is a question generally decided at dispositional hearings.
CINA Rule 17(d). Adjudication and termination proceedings can be
combined, but termination is a remedy which can only be imposed
in AS 47.10 proceedings following or contemporaneous with a CINA
adjudication. The question to be resolved on remand from our
prior decision was the validity of the CINA determination made in
the June 1990 trial. One issue in the present appeal is whether
a CINA determination has properly been made. In the absence of
such a determination, a termination in a proceeding brought under
AS 47.10 is not possible. Since, as we hold, the CINA
determination was erroneous, the remedy of termination under the
unreasonable withholding of consent standard cannot be upheld.
Second, AS 25.23.180(c)(2) applies solely to parents
who do not have custody. In Delgado v. Fawcett, 515 P.2d 710
(Alaska 1973), we construed an earlier statute which provided
that consent for adoption was not required of a divorced parent
who is not awarded full or part-time custody of a child.9 We
construed "custody"for the purpose of that statute to include
the right to visit the children. Id. at 712-13. In 1974,
current AS 25.23.180(c)(2) was enacted. It is taken from section
19(c)(3) of the Uniform Adoption Act of 1969.10 In Kottsick v.
Carlson, 241 N.W.2d 842 (N.D. 1976), the court construed this
section and concluded that a parent who has rights to visitation
is not a parent who does not have "custody." In reaching this
conclusion the court relied in part on Delgado, 241 N.W.2d at 847-
48. We agree with this aspect of Kottsick.
At issue in this case is the trial court's
determination made July 24, 1990, that the children are children
in need of aid. Our first remand of this case was for the
purpose of conducting further proceedings in order to determine
whether the CINA adjudication of July 24, 1990, could be upheld.
Prior to that adjudication there was no court order which
deprived the mother of visitation rights. She was actively
visiting them and cooperating with the remedial efforts made by
the State until the State stopped her visits on December 11 or 12
of 1989. She was therefore not "a parent who does not have
custody"within the meaning of subsection 180(c)(2). Of course,
based on the CINA finding and order of termination of July 24,
1990, K.F. no longer had custody of the children. However, since
it is the validity of this finding and order which is currently
in question, the finding and order may not be used to support a
termination based on 180(c)(2).
V. Cross-Appeal Issues
The guardian ad litem (GAL) and the State have filed
cross-appeals,11 contending that the trial court on remand erred
in not finding that the children were in need of aid under AS
47.10.010(a)(2)(C) and under AS 47.10.010(a)(2)(F). We
originally remanded this case to the superior court with
directions to consider whether CINA jurisdiction existed under AS
47.10.010(a)(2)(C), leaving it to the court's discretion whether
to take additional evidence or base its decision on the record.
J.L.F., 828 P.2d at 170. The court found that the record
developed at the original trial was sufficient and did not
support a finding that the children would be exposed to imminent
risk of substantial harm. It is this finding from which the GAL
and the State cross-appeal.
Under subsection (C) a child is in need of aid "if
there is an imminent and substantial risk that the child will
suffer [substantial physical] 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."
While acknowledging that K.F.'s children "have not suffered
physical injury," the GAL argues that expert testimony
established that such injury was likely to occur if the children
had been left in K.F.'s custody because of her lack of
appreciation and ability to identify safety hazards.
As we noted in our original decision, there is evidence
that seemingly would support such a finding under subsection (C).
However, the trial court was specifically directed to evaluate
this evidence on remand and concluded that the record did not
support "a finding that these children would be exposed to
'imminent' risk of substantial harm" pursuant to AS
47.10.010(a)(2)(C). We review this finding under the clearly
erroneous standard referred to above. Having reread the
transcript of the original trial it is our conclusion that the
trial court's finding that the children were not exposed to an
imminent risk of substantial physical harm under the mother's
care was not clearly erroneous.
With respect to the GAL's argument under subsection
(F), this case was not remanded for the purpose of making a
determination under subsection (F), nor was the issue of the
possible application of subsection (F) raised before the superior
court on remand. Thus this issue is not properly before us.
VI. Conclusion
This is a case in which there are relatives willing to
care for the children. Therefore CINA jurisdiction under
subsection (A) does not exist. The trial court's conclusion that
the relatives lack normal parenting ability is clearly erroneous.
The statute under which a parent's rights can be terminated when
she unreasonably withholds her consent to adoption does not apply
in this case because that statute may only be applied to the
remedial phase of a CINA proceeding, and because the mother in
this case was not lacking in custody within the meaning of
section 180(c)(2). Finally, the trial court's conclusion that
the children were not in imminent danger of suffering substantial
physical risk should they be in the care of the mother is not
clearly erroneous.
In 1990 the State had to choose between supporting the
placement of these children with willing relatives of normal
parenting ability or with unrelated foster parents. The State
chose the unrelated foster parents, contrary to the requirements
of the law. Much time has passed. The foster parents have
proven to be outstanding. They are the only parents the children
know. Evidence was presented that moving the children to a new
family would do permanent emotional damage. What the ultimate
placement of these children will be is beyond the scope of this
appeal. Specific legal arguments have been raised and after a
careful review of the authorities and the record we have resolved
these arguments.
REVERSED and REMANDED for further proceedings.
EASTAUGH, Justice, with whom COMPTON, Justice, joins,
concurring in part and dissenting in part.
I agree with Parts I, IV, and V of the court's opinion,
and agree that reversal and remand are the correct result. I
also agree with Part III to the extent it discusses the facts and
concludes that the evidence is insufficient to demonstrate that
T.H. and L.H. were unable to care for the children. Thus, the
court unanimously agrees that the facts do not warrant the
exercise of CINA jurisdiction under AS 47.10.010(a)(2)(A).
The court's opinion, however, concludes in Part II that
ability to care is irrelevant to CINA jurisdiction under AS
42.10.010(a)(2)(A), Op. at 9-11 (citing In re S.A. & D.A., __
P.2d __, Op. No. 4314 at 11, 17 (Alaska, January 26, 1996)). For
reasons I discussed in my separate opinion in that case, I
disagree with Part II of the opinion in the case now before us.
Ability to care is and must be relevant to jurisdiction under AS
47.10.010(a)(2)(A). S.A. & D.A., Op. No. 4314 at 19 (Eastaugh,
J., concurring in part and dissenting in part). I also disagree
with Part III of the court's opinion to the extent it implies
inability is irrelevant, or must be discussed only "[f]or
purposes of . . . argument." Op. at 11.
_______________________________
1 The circumstances in which a child may be found a child
in need of aid are defined in AS 47.10.010(a)(2):
(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;
(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;
(D) the child having been, or being in
imminent and substantial danger of being,
sexually abused either by the child's parent,
guardian, or custodian, or as a result of
conditions created by the child's parent,
guardian, or custodian, or by the failure of
the parent, guardian, or custodian adequately
to supervise the child;
(E) the child committing delinquent acts
as a result of pressure, guidance, or
approval from the child's parents, guardian,
or custodian;
(F) the child having suffered
substantial physical abuse or neglect as a
result of conditions created by the child's
parent, guardian, or custodian.
2 These rulings were made by the judge who presided over
the original termination trial, the Honorable John Reese.
3 In relevant part AS 25.23.180 provides:
(a) The rights of a parent with
reference to a child, including parental
right to control the child or to withhold
consent to an adoption, may be relinquished
and the relationship of parent and child
terminated in or before an adoption
proceeding as provided in this section.
. . . .
(c) The relationship of parent and child
may be terminated by a court order issued in
connection with a proceeding under this
chapter or a proceeding under AS 47.10:
(1) on the grounds specified in AS
47.10.080(c)(3);
(2) on the grounds that a parent who
does not have custody is unreasonably
withholding consent to adoption, contrary to
the best interest of the minor child; or
(3) on grounds that the parent committed
an act constituting sexual assault or sexual
abuse of a minor under the laws of this state
or a comparable offense under the laws of the
state where the act occurred that resulted in
conception of the child and that termination
of the parental rights of the biological
parent is in the best interests of the child.
4 See supra p. 7, trial court conclusion #10.
5 Although the State had the homestudy at the original
termination trial in late June of 1990, the State did not present
it to the trial court.
6 Judge Reese at the conclusion of the original
termination trial noted testimony that K.F. needed third-party
help in the home and that such help was unavailable. "[S]he
needs a parent aid perhaps eight hours a day. There was other
testimony indicating that a third party in the home is what would
really be necessary. That is not available unfortunately." As
noted, the option of placement of the children with T.H. and L.H.
was not explored at the first trial.
7 AS 47.10.080(c)(3) 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 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
responsibilities 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.
8 No petition for adoption has been filed concerning
J.L.F. and K.W.F.
9 The statute was former AS 20.10.040(5).
10 Five states including Alaska adopted the 1969 revised
act. See 9 U.L.A. 93 (Supp. 1995). The 1969 act has been
superseded by the Uniform Adoption Act of 1994 which considerably
narrows the grounds for terminating the parent-child
relationship. See Unif. Adoption Act (1994) ' 3-504, 9 U.L.A. 53
(Supp. 1995).
11 Although both the State and the GAL are cross-
appellants, the GAL has taken the lead in this aspect of the
case; the State has incorporated the GAL's brief by reference.
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