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R.R. v. State (6/21/96), 919 P 2d 754
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
) Supreme Court No. S-6756
) Superior Court No.
v. ) 4FA-92-160 CP
STATE OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4359 - June 21, 1996]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: James M. Hackett, Fairbanks, for
Appellant. Nora King, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
EASTAUGH, Justice, with whom COMPTON, Justice,
R.R., the mother of T.M., A.M., S.M., and M.H., claims
that her children were improperly removed from her custody by the
superior court. Her appeal focuses primarily on her youngest
child, M.H. She alleges that the superior court made inadequate
findings under CINA Rule 15(g), that the superior court erroneously
concluded that M.H. was a "child in need of aid,"and that the
statute authorizing the superior court to appoint guardians is
II. FACTS AND PROCEEDINGS
At a hearing on December 18, 1992, the superior court
awarded the state temporary custody of R.R.'s three oldest
children, T.M., A.M., and S.M. Subsequently, this custody
arrangement was extended numerous times, apparently depriving R.R.
of custody continuously since that time. R.R.'s fourth child, M.H.
was born on January 10, 1994. The state assumed emergency custody
over M.H. on March 15, 1994. This arrangement also was extended
several times. The superior court found M.H. to be a child in need
of aid under AS 47.10.010(a)(2)(A), and shortly thereafter
appointed guardians for all of the children.
The superior court additionally found that R.R.'s
"personality disorder is of sufficient magnitude that it interferes
with her perceptions of reality and her ability to parent her
children and maintain a consistent and stable relationship with
them." The findings basically characterize her as impulsive,
quick-tempered, selfish, and generally difficult to deal with, and
the superior court further found that "[t]here is a danger that if
[R.R.] had sole custody of [M.H.], [M.H.] would be adversely
impacted and likely would also require counseling in the future."
The superior court ultimately concluded that "[R.R.] is currently
unable to provide for the physical, emotional, and social needs of
her children . . . ."
The superior court then appointed R.R.'s sister and
brother-in-law, Mary and Eric Heim, and her mother, Margaret
Gilbert, as guardians of the children. The court opted for a
guardianship arrangement, as opposed to a termination of R.R.'s
parental rights, in "the hope that reunification might be possible
to some degree in the future." No time durations were established
for the guardianships however, and no specific arrangements aimed
towards achieving a reunification were established. All decisions
in this respect were basically left to the childrens' guardians.
This appeal followed.
A. Was the superior court's finding that "[r]easonable
efforts were and are being made to prevent removal of the
child from her mother's home"sufficient under CINA Rule
CINA Rule 15(g) requires that prior to removing a child
from the child's home, the trial court must make a finding as to
"whether, under the circumstances of the case, reasonable efforts
were made to prevent or eliminate the need for removal of the child
from the home and to make it possible for the child to return home
. . . ." This court has held that such a finding of reasonableness
must be made explicitly by the superior court. In the Matter of
J.L.F., 828 P.2d 166, 172 (1992) (overruled on other grounds).
R.R. claims that since the superior court's findings "mention only
in passing that reasonable efforts were made"and do not
"sufficiently address the reasonableness of any . . . efforts to
return the children home,"the findings are inadequate under CINA
Since all that the rule or our cases require, however, is
that the trial court make a finding that the treatment plan was
reasonable, and since the superior court in this case made such a
finding, we conclude that R.R.'s claim is without merit. It is
clear from the superior court's findings contained in two separate
orders that the court considered and evaluated the reasonableness
of the efforts in this respect. (EN2) This is all that is required
under CINA Rule 15(g).
As for the claim that the superior court did not
specifically address efforts at returning M.H. to her mother's
home, we think that such efforts are logically encompassed within
the treatment plan that was evaluated by the superior court and
need not be separately addressed. CINA Rule 15(g) does not require
that each element of the "reasonable efforts"be discussed
individually and in detail.
B. Was the superior court's adjudication of M.H. as a
child in need of aid under AS 47.10.010 (a)(2)(A)
M.H. can properly be considered a child in need of aid
under AS 47.10.010(a)(2)(A) only if she "[has] no parent, guardian,
custodian, or relative caring or willing to provide care."(EN4)
Recently we held 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)." In re S.A. and
D.A., 912 P.2d 1235, 1242 (Alaska 1996). More recently in In re
J.L.F. and K.W.F., 912 P.2d 1255, 1260-1261 (Alaska 1996), we
explained our holding in In re S.A. and D.A. in the following
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.■" 912 P.2d at 1239. Relevant to the
trial court's finding that the definition of
care or caring impliedly makes ability to care
relevant under subsection (A) 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.
912 P.2d at 1239.
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
adjudicating 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)
. . . .
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 "substantial
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
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."
912 P.2d 1240-41. 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
In light of the fact that M.H. is not a child with "no
parent, guardian, custodian, or relative caring or willing to care"
for her, the superior court's finding that she is a child in need
of aid under AS 47.10.010(a)(2)(A) must be vacated pursuant to our
decisions in S.A. and D.A. and J.L.F. and K.W.F. (EN5)
C. Is the language of AS 13.26.045 unconstitutionally vague?
R.R. claims that the following language of AS 13.26.045
is unconstitutionally vague:
The court may appoint a guardian for an
unmarried minor if all parental rights of
custody have been terminated or suspended by
circumstances or prior court order.
Specifically, R.R. contends that both the phrase "all parental
rights,"and the phrase "suspended by circumstance"are
impermissibly vague. We disagree with both contentions.
There are essentially three types of defects that can
render a statute unconstitutionally vague. The first is that the
statute chills the exercise of First Amendment rights, the second
is that it fails to give adequate notice of prohibited conduct, and
the third is that its imprecision "encourages arbitrary
enforcement." Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska
1979). Here, as in Williams v. State, Dep't of Revenue, 895 P.2d
99, 105 (Alaska 1995), these factors have little or nothing to do
with the present case. The statute does not bear on First
Amendment rights, it prohibits no conduct and gives rise to no
civil or criminal enforcement action. If there is a constitutional
bar of vagueness applicable to a statute like this, all that it
requires is "legislative language which is not so conflicting and
confused that it cannot be given meaning in the adjudication
process." Id. This standard is readily met as the statute merely
sets out circumstances under which a guardian can be appointed; the
definition of such circumstances is found elsewhere in the
statutes. Merely because judges are given discretion to appoint
guardians does not mean that the statute is unconstitutionally
vague. See Coghill v. Coghill, 836 P.2d 921, 929 (Alaska 1992)
(holding exceptions such as "good cause"not unconstitutionally
vague "so long as judges and hearing commissioners continue to
exercise their discretion to achieve equitable results consistent
with existing case law").
R.R.'s claim that the superior court's findings were
insufficient under CINA Rule 15(g) and her claim that AS 13.26.045
is unconstitutionally vague are without merit. Her claim that the
superior court erred in ruling that M.H. was a child in need under
AS 47.10.010(a)(2)(A), however, is valid. Since M.H. is not a
child with "no parent, guardian, custodian, or relative caring or
willing to care"for her, the superior court's finding that she was
a child in need of aid under AS 47.10.010(a)(2)(A) is erroneous
under our decisions in S.A. and D.A. and J.L.F. and K.W.F. The
judgment of the superior court is VACATED and the case REMANDED for
further proceedings consistent with this opinion. (EN7) EASTAUGH, Justice, with whom COMPTON, Justice, joins,
I agree with Parts III.A and III.C of the court's
opinion. Although I also agree with the conclusion, found in Part
III.B of the court's opinion, that AS 47.10.010(a)(2)(A) does not
provide jurisdiction in this case, I disagree with the court's Part
III.B analysis of the jurisdictional issue.
The court states that
[i]n light of the fact that M.H. is not a
child with "no parent, guardian, custodian, or
relative caring or willing to care"for her,
the superior court's finding that she is a
child in need of aid under AS
47.10.010(a)(2)(A) must be vacated pursuant to
our decisions in S.A. and D.A. and J.L.F. and
Op. at 8. The court apparently does not disagree with the superior
court's finding that "[R.R.] is currently unable to provide for the
physical, emotional, and social needs of her children . . . ." Op.
at 2. However, because the court believes that ability is
irrelevant to jurisdiction under AS 47.10.010(a)(2)(A), and because
R.R. was willing to care for M.H., (EN9) the court finds that
jurisdiction is inappropriate under subsection (A). Op. at 5-8.
I disagree with the court's analysis because I continue
to believe that ability to care is relevant to jurisdiction under
subsection (A). See In re S.A. & D.A., 912 P.2d 1235, 1242 (Alaska
1996) (Eastaugh, J., concurring in part and dissenting in part); In
re J.L.F. & K.W.F., 912 P.2d 1255, 1266 (Alaska 1996) (Eastaugh,
J., concurring in part and dissenting in part). Ability is
relevant under AS 47.10.010(a)(2)(A), because that subsection is
intended to protect children who do not receive necessary care.
The caregiver's professed willingness to provide care does not
alone ensure that the child will receive the necessary care as
intended under AS 47.10.010(a)(2)(A).
In this case, despite R.R.'s willingness to care for
M.H., R.R. is demonstrably unable to care for the child. The
superior court found that "if [R.R.] were to have custody of the
children, their opportunity for positive growth would be
compromised." The superior court also found that "[R.R.]'s
personality disorder is of sufficient magnitude that it interferes
with her perceptions of reality and her ability to parent her
children and maintain a consistent and stable relationship with
them." Although willing, R.R. is not able to provide necessary
care for M.H. This inability defeats the central purpose of AS
47.10.010(a)(2)(A), which addresses the failure to provide care for
a child. See S.A. & D.A., 912 P.2d at 1243-44 (Eastaugh, J.,
concurring in part and dissenting in part). Because R.R. is not
able to care for M.H., if there were no other eligible caregiver,
I would hold that jurisdiction is appropriate under subsection (A).
Nonetheless, I agree that jurisdiction is inappropriate
here, because there are relatives who are both willing and able to
care for M.H. A "child is not in need of aid if some other
eligible person stands ready to deliver that care in the future."
S.A. & D.A., 912 P.2d at 1244 (Eastaugh, J., concurring in part and
dissenting in part). Mary and Eric Heim, R.R.'s sister and
brother-in-law, and Margaret Gilbert, R.R.'s mother, are willing
and able to care for M.H. The superior court found that they
"possess those qualities necessary to care for and nurture"the
child, and that they have "indicated a willingness to serve as co-
guardians"for her. I consequently agree with the court's
conclusion that it was error to grant jurisdiction under subsection
1. Whether the findings were adequate to satisfy the CINA rule is
a question of law. This court interprets statutory language and
rule language, such as the requirements of CINA Rule 15(g), on a de
novo basis. Langdon v. Champion, 745 P.2d 1371, 1372 n.2 (Alaska
1987). The question of whether or not the findings were erroneous
is reviewed only for clear error. A.H. v. State, 779 P.2d 1229,
1231 (Alaska 1989).
2. The superior court wrote, "DFYS made reasonable efforts to
preserve the family but was frustrated by [R.R.'s] conduct and
personality disorder." It also wrote, "Reasonable efforts were and
are being made to prevent removal of the child from her mother's
home . . . ."
3. This is ultimately a question of statutory interpretation.
Since it is a question of law, the court applies its independent
judgement. Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 631 n.8
4. This statute provides:
Jurisdiction. (a) Proceedings relating to a
minor under 18 years of age residing or found
in the state are governed by this chapter,
except as otherwise provided in this chapter,
when the court finds the minor
. . . .
(2) to be a child in need of aid as a
(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
(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.
5. Subsections (C) and (F) of AS 47.10.010(a)(2) provide for
jurisdiction over children who are in need of aid as a result of
(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 or
conditions created by the child's parent,
guardian, or custodian or the failure of the
parent, guardian, or custodian to adequately
supervise the child;
(F) the child having suffered substantial
physical abuse or neglect as a result of
conditions created by the child's parent,
guardian, or custodian.
On remand it is open to the state to demonstrate that R.R.'s
conduct and mental problems have rendered M.H. a child in need of
aid under the language of these provisions.
6. It appears to be uncontested that the vagueness issue was not
raised at trial. Accordingly this court need only review it for
plain error. In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986).
7. If on remand the state proves that M.H. is a child in need
under either (a)(2)(C) or (a)(2)(F), or any other subsection found
applicable, the superior court should clarify the exact nature of
any guardianship arrangement it orders. In regard to the superior
court's former order, R.R. claimed that her parental rights have in
fact been terminated. This argument is based on the fact that no
provision was made for the termination of the guardianship
arrangement within any definite period of time or upon the
happening of any event, and since "the relationship between [R.R.]
and Ms. Gilbert and the Heims is very strained and only limited
contacts are feasible."
8. The court does suggest that on remand the superior court may
consider whether there is CINA jurisdiction under AS
47.10.010(a)(2)(C) or (F). Op. at 8 n.5.
9. The superior court found that "[R.R.] sincerely desires the
return of all her children"and that "[R.R.]'s intentions with
regard to her children appear to be well-motivated."