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T.B. v. State (9/6/96), 922 P 2d 271
<![CDATA[
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; (907) phone 264-0607; fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
T.B., )
) Supreme Court No. S-6924
Appellant, )
) Superior Court No.
v. ) 3KN-91-80-B CP
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4400 - September 6, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: John Aschenbrenner, Assistant
Public Defender, Kenai, John Salemi, Public
Defender, Anchorage, for Appellant. Dianne
Olsen, Assistant Attorney General, Anchorage,
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
RABINOWITZ, Justice.
I. INTRODUCTION
The superior court determined that R.C., the natural
child of T.B., is a child in need of aid under AS
47.10.010(a)(2)(A), (C), and (F), and that it is in the best
interests of R.C. for the State to retain custody of him for two
years. T.B., R.C.'s mother, who was caring for R.C. until the
State interceded, now brings this appeal.
II. FACTS AND PROCEEDINGS
T.B. is R.C.'s mother. A Colorado court terminated her
parental rights in 1988, after finding that she had abandoned R.C.
and had not complied with a rehabilitation plan. The Colorado
court awarded custody first to R.C.'s grandfather, and then to
R.C.'s uncle, G.C. Thereafter, G.C. executed two separate powers
of attorney giving custody of R.C. to T.B. The first one, executed
on December 18, 1990, was entitled "Special Power of Attorney and
Grant of Temporary Custody"and was effective "until its revocation
by me." The second one, executed on October 13, 1994, contained
similar language, but was entitled, "Special Power of Attorney and
Grant of Permanent Custody." On December 23, 1990, R.C. arrived in
Alaska, and lived with T.B. until May 1993, at which time the State
took emergency custody of him.
In November of 1992, T.B. withdrew R.C. from school. She
re-enrolled him on January 21, 1993. He missed about six weeks of
classes. The previous spring, R.C. had been severely injured when
another child kicked him in the testicles. T.B. claims that R.C.
was assaulted again in the fall of 1992, which prompted her to
withdraw him from school. She attempted to enroll him in a home
schooling program, but when her application was denied, she
returned R.C. to school.
The State took custody of R.C. on May 18, 1993. On that
date T.B. threatened R.C. after he struck a motorcycle with a
sword. (EN1) Specifically, she threatened to "beat your fucking
ass"and may also have threatened to kill him. R.C. fled to a
neighbor's house, where a fight then ensued between the neighbor
and T.B. There were allegations that T.B. was drunk, though T.B.
only admitted to having had "a couple of beers"that day.
Following the State's exercise of emergency custody in
the wake of the May 18 incident, the State designed a plan which
would enable T.B. to resume caring for R.C. The plan called for
her to attend regular meetings at Alcoholics Anonymous, complete
parenting classes, participate in a psychological evaluation, have
regular meetings with R.C., and complete individual and family
counseling. However, T.B. did not comply with the treatment plan.
The superior court found that she attended only four of six
parenting classes, that she visited R.C. only "sporadically,"that
she did not provide the court with a record of AA meetings, and
that she did not undergo counseling. The superior court noted that
T.B. claimed that her failure to complete the program set up by the
State was caused by the distance between her home and the location
of the classes and by her inability to afford cab fare to the
location of the classes.
The superior court determined that R.C. is a child in
need of aid pursuant to AS 47.10.010(a)(2)(A), (C), and (F). (EN2)
The superior court then awarded custody of R.C. to the Department
of Health and Social Services for up to two years and also provided
for visitations with T.B.
T.B. appeals the superior court's classification of R.C.
as a child in need of aid and also appeals the superior court's
dispositional order awarding custody to the Department of Health
and Social Services.
III. STANDARD OF REVIEW
A superior court's finding that a child is in need of aid
will be overturned if this court is left with the definite and firm
conviction that a mistake has been made. In the Matter of A.S.W.,
834 P.2d 801, 806 (Alaska 1993). Factual findings supporting the
superior court's determination that a minor is a child in need of
aid are reviewed under the clearly erroneous standard. A.H. v.
State, 779 P.2d 1229, 1231 (Alaska 1989).
IV. DISCUSSION
A. Did the Superior Court Err in Holding that R.C. Is a
Child in Need of Aid?
Since the superior court articulated three separate
grounds in support of its conclusion that R.C. is a child in need
of aid, we address each in turn.
1. Did the superior court err in concluding that R.C.
is a child in need of aid pursuant to AS
47.10.010(a)(2)(C)?
In its Memorandum of Decision the superior court found:
1. This Court has jurisdiction of this case
for purposes of adjudication and disposition
under the provisions of A.S.
47.10.010(a)(2)(C).
2. As a result of actions done by or
conditions created by R.C.'s mother, T.B., on
May 18, 1993, there was an imminent and
substantial risk that R.C. would suffer
substantial physical harm. R.C. thwarted the
risk of harm by his actions in seeking
assistance from Jessica Townsend. Jessica
Townsend thwarted the risk of harm to R.C. by
her actions in assisting R.C. and in
preventing T.B.'s access to R.C. during the
incident.
Alaska Statute 47.10.010(a)(2)(C) provides for
jurisdiction over a child who is in need of aid as a result of
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[.]
(Emphasis added).
Our review of the record leads us to the conclusion that
sufficient evidentiary support is lacking for the superior court's
conclusion that "[a]s a result of actions done by or conditions
created by R.C.'s mother, T.B., on May 18, 1993, there was an
imminent and substantial risk that R.C. would suffer substantial
physical harm"under AS 47.10.010(a)(2)(C). Essentially, after
R.C. swung a sword at a motorcycle (or possibly at a person), T.B.
yelled at R.C. and threatened him. This may have been an overreac-
tion to the incident. However, this isolated incident, without
evidence that T.B. was prone to violence or that T.B. had any
history of violence towards R.C., falls short of establishing an
imminent and substantial risk that the child will suffer
substantial physical harm. See F.T. v. State, 862 P.2d 857 (Alaska
1993) (where the state presented no direct evidence concerning
father's alleged physical abuse of son, insufficient evidence
existed to support the superior court's adjudication under AS
47.10.010(a)(2)(C)); In the Matter of S.A., 912 P.2d 1235, 1238
(Alaska 1996) ("Likewise, the testimony that [the mother] sometimes
disciplines [her children] by yelling at them cannot justify a CINA
adjudication under subsection (C).").
We therefore hold that evidence of T.B.'s actions on May
18, 1993 is insufficient to support the superior court's
adjudication that R.C. is a child in need of aid under AS
47.10.010(a)(2)(C).
2. Did the superior court err in concluding that R.C.
is a child in need of aid pursuant to AS
47.10.010(a)(2)(F)?
The superior court found that R.C. is a child in need of
aid under the terms of AS 47.10.010(a)(2)(F). More particularly,
in its Memorandum of Decision it stated:
The Court concludes that as a result of
T.B.'s action in withholding R.C. from school
from November, 1992 through January, 1993, he
suffered substantial neglect.
Alaska Statute 47.10.010(a)(2)(F) provides for
jurisdiction over a child who is in need of aid as a result of "the
child having suffered substantial physical abuse or neglect as a
result of conditions created by the child's parent, guardian, or
custodian." (Emphasis added).
Our review of the evidence persuades us that support for
an adjudication of R.C. as a child in need of aid under AS
47.10.010(a)(2)(F) is lacking. T.B. claims that she withdrew R.C.
from school soon after he was assaulted at a school bus stop. This
assault followed an assault the previous spring which caused
serious injuries to R.C. (EN3)
During R.C.'s absence from school, T.B. attempted to
enroll him in a home schooling program. When her application for
home schooling was denied, she re-enrolled R.C. in school. While
T.B. should have attempted to enroll R.C. in the home schooling
program before withdrawing him from school, her actions do not
constitute "substantial physical neglect."
In Matter of S.D., Jr., 549 P.2d 1190, 1197-98 (Alaska
1976), we held that parents show neglect or a lack of proper care
when they keep their children from attending school for an extended
period of time without "some justifiable reason." Here T.B.'s
concern for her son's health and safety constitutes a justifiable
reason, especially given the history of assaults committed against
him. (EN4)
Therefore, we hold that the superior court erred in
adjudicating R.C. a child in need of aid under the provisions of AS
47.10.010(a)(2)(F).
3. Did the superior court err in concluding that R.C.
is a child in need of aid pursuant to AS
47.10.010(a)(2)(A)?
Alaska Statute 47.10.010(a)(2)(A) provides for
jurisdiction over a child who is in need of aid as a result of "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 . . . ." (Emphasis
added).
In its Memorandum of Decision the superior court
determined that it "must give full faith and credit to the ORDER
TERMINATING THE PARENT CHILD RELATIONSHIP, issued in the Matter of
R.C. . . . by the District Court of the State of Colorado . . . .
According to that order, T.B.'s personal right to R.C. was
terminated, and R.C.'s legal custody and guardianship was granted
to R.C. and F.C. [the minor's maternal grandparents]." Custody was
later transferred to the minor's uncle, G.C. (EN5) The superior
court additionally found that "R.C. has no parent, guardian,
custodian or relative caring or willing to provide care"and
determined that R.C. is a child in need of aid pursuant to AS
47.10.010(a)(2)(A).
On appeal, T.B. claims that the superior court erred in
holding that she was not R.C.'s custodian during the relevant
times. She argues that the powers of attorney executed by G.C.
appointed her custodian of R.C. The State advances two reasons for
upholding the superior court.
First, the State argues that, under CINA Rule 2(b), G.C.
had no authority to appoint T.B. as a custodian. Rule 2(b) states:
"Custodian"means a person over 18 years of
age to whom a parent has transferred temporary
physical care, custody, and control of the
child for the period of time immediately
preceding the conduct alleged in the petition.
(Emphasis added). Accordingly, the State claims that, since G.C.
was merely R.C.'s guardian and not his parent, he had no authority
to appoint T.B. as a custodian. We view the State's argument as
exceedingly technical. Common sense dictates that a legal guardian
who has all the authority of a parent may do what a parent may do,
so if a parent may appoint a custodian, a guardian may also appoint
one. (EN6)
Additionally, it is not clear that CINA Rule 2(b)
provides the definition of "custodian"for purposes of AS
47.10.010(a)(2)(A), since Chapter 10 of Title 47 provides no
definition of "custodian." See AS 47.10.990. Furthermore, AS
13.26.020 states:
A parent or guardian of a minor or
incapacitated person, by a properly executed
power of attorney, may delegate to another
person, for a period not exceeding one year,
any powers regarding care, custody, or
property of the minor child or ward, except
the power to consent to marriage or adoption
of a minor ward.
We believe that the provisions of AS 13.26.020 are relevant and
controlling in interpreting AS 47.10.010(a)(2)(A). In short, G.C.
had authority, pursuant to AS 13.26.020, to appoint a custodian for
R.C.
The State also argues that G.C. lacked authority to
appoint T.B. as R.C.'s custodian for an indefinite period of time.
This is because AS 13.26.020, quoted above, permits custodians to
be appointed for only one year. Accordingly, under G.C.'s December
18, 1990 power of attorney appointing T.B. as a custodian, T.B.'s
appointment expired in December 1991, approximately one and one-
half years before the State took emergency custody of R.C.
Technically speaking, then, R.C. had no custodian after December
1991 willing to assume care for him after the State took custody.
(EN7)
T.B., however, persuasively argues that her role as
R.C.'s care taker for two and one-half years should be taken into
account, and that she qualifies as R.C.'s custodian on that basis.
Specifically, she claims:
T.B.'s care for R.C. for approximately two and
a half years under the power of attorneys and
guardianship documents certainly qualifies her
at the very least as a custodian.
There is merit in T.B.'s argument. T.B. exercised actual
care of and had sole custody of R.C. for a period of approximately
two and one-half years immediately prior to the May 18, 1993
incident which culminated in the State's taking emergency custody
of R.C. Considering this fact, we think it just and appropriate to
characterize T.B. as a custodian willing to provide care for R.C.
Given our conclusion that T.B. functioned as R.C.'s de facto
custodian, we hold that the superior court erred in adjudicating
R.C. a child in need of aid under the provisions of AS
47.10.010(a)(2)(A). (EN8)
V. CONCLUSION
The superior court's judgment that R.C. is a child in
need of aid under AS 47.10.010(a)(2)(A), (C), and (F) is REVERSED
and VACATED. Additionally, the superior court's judgment granting
custody of R.C. to the State for a period of two years is REVERSED
and VACATED. (EN9)
ENDNOTES:
1. There is some indication that R.C. attempted to strike the
person who was on the motorcycle.
2. AS 47.10.010 provides in part:
(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 . . . ;
. . .
(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;
. . .
(F) the child having suffered
substantial physical abuse or neglect as a
result of conditions created by the child's
parent, guardian, or custodian.
3. The State claims that the school investigated the bus stop
incident, and determined that no assault took place. The superior
court did not make a finding as to whether this assault took place,
but rather stated, "According to T.B. she removed R.C. from school
because of assaultive behavior directed at him by peers."
4. In Matter of S.D., Jr., we referred to AS 14.30.010, which
requires parents and guardians to "maintain the child in attendance
at a public school . . . ." AS 14.30.010 also lists circumstances
pursuant to which a child will be excused from attending a public
school. It might be inferred that in Matter of S.D., Jr., we
intended to limit "justifiable reason[s]"to the exceptions listed
in AS 14.30.010. Matter of S.D., Jr. should not be interpreted in
such a manner. Circumstances might arise, such as those in the
case at bar, where an absence from school is not justified by the
exceptions noted in As 14.30.010, but which nevertheless do not
warrant characterizing the minor as a child in need of aid.
5. The superior court further found that
[t]he powers of attorney executed by G.C. have
no legal significance as to T.B.'s status as
R.C.'s mother or guardian. G.C. lacked the
legal capacity to make either designation.
6. No restrictions regarding R.C.'s uncle's guardianship have
been brought to our attention.
7. A State social worker testified that she was not aware of any
other relatives who are willing to care for R.C. However, the
Guardian Ad Litem's report filed in conjunction with the
dispositional phase of the proceedings notes that R.C.'s
grandmother is willing to care for R.C. The superior court did not
note this discrepancy in its findings, but rather stated that R.C.
had no "parent, guardian, custodian, or relative caring or willing
to provide care." Since R.C.'s grandmother is apparently willing
to care for R.C., the superior court erred in deciding that R.C. is
a child in need of aid under AS 47.10.010(a)(2)(A). However, as
explained below, we conclude that T.B. also qualified to care for
R.C. under AS 47.10.010(a)(2)(A).
8. Aside from the isolated incident of May 18, 1993, where T.B.
threatened R.C. and T.B.'s decision to withdraw R.C. from school,
which for reasons discussed previously do not furnish independent
grounds for adjudicating R.C. a child in need of aid, the State has
not produced evidence of any other incidents which point to T.B.'s
failing to properly care for R.C. That T.B. is willing to care for
R.C. is undisputed.
We note that our holding makes it unnecessary to address
whether T.B. might also qualify as a "relative"within the terms of
AS 47.10.010(a)(2)(A).
9. In this appeal the State has not argued that returning R.C. to
the custody of T.B. would violate principles of full faith and
credit given the Colorado court's judgment terminating T.B.'s
parental rights.
Though the superior court accorded full faith and credit to
the Colorado judgment severing T.B.'s parental rights, the superior
court recognized T.B. as a "party to this proceeding by order made
in open court on October 14, 1993." Additionally, the superior
court mentioned in its findings of fact that the "DFYS developed a
case plan, the object of which was to return R.C. to family
custody." Thus, it seems likely that, had T.B. completed the
program to the satisfaction of the State, it would not have
attempted to have R.C. adjudicated as a child in need of aid.
T.B. never asked the superior court to revoke the Colorado
court's severance of her parental rights, as she had perhaps the
right to do. In Rita T. v. State, 623 P.2d 344, 347 (Alaska 1981),
we said:
We conclude that as long as a child remains
the ward of the court, under AS 47.10.080(f)
his or her natural parents are entitled to a
review of the order terminating their parental
rights . . . .
See also AS 47.10.080(f).
Since the matter of the restoration of T.B.'s parental rights
was not raised below and not briefed in this appeal, we decline to
address this complex issue which necessarily involves issues of
full faith and credit.
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