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R.J.M. v. Alaska Department of Health and Social Services (9/19/97), 946 P 2d 855
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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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
R.J.M., )
) Supreme Court No. S-7666
Appellant, )
) Superior Court No.
v. ) 4FA-91-182 CP
)
STATE OF ALASKA, )
)
Appellee. )
)
)
P.M., )
) Supreme Court No. S-7675
Appellant, )
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
J.M. and S.M., ) Supreme Court No. S-7676
)
Appellant, )
)
v. )
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)
) [No. 4887 - September 19, 1997]
Appellee. )
)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Mary E. Greene, Judge.
Appearances: John J. Connors, Birch, Horton,
Bittner & Cherot, Fairbanks, for Appellant R.J.M. Bonnie J.
Coghlan, Fairbanks, for Appellant P.M. Michelle McComb, Law
Offices of Robert S. Noreen, Fairbanks, for Appellants J.M. and
S.M. Nora King, Assistant Attorney General, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
EASTAUGH, Justice, with whom COMPTON, Chief
Justice, joins, dissenting.
I. Introduction
Former AS 47.10.010(a)(2)(F) -- currently AS 47.10.010
(a)(6) [Fn. 1] -- defines a child in need of aid (CINA) to include
a child who has suffered "substantial physical abuse or neglect."
In this appeal from a superior court order terminating parental
rights, we consider whether "substantial physical abuse or neglect"
includes emotional, mental, and social neglect.
II. Facts and Proceedings
A. Facts
R.J.M. and P.M. were married in 1973. In the course of
their marriage, they had two children: a daughter, S.M., born in
1980, and a son, J.M., born in 1985. The family lived in Nenana.
P.M. was the primary caretaker of the children, but
suffered from mental problems -- paranoid and delusional thinking
-- that impeded her ability to provide them with proper care. P.M.
kept the children out of school because she believed teachers were
prying into the family's life and spreading rumors about her.
Although P.M. purported to be home schooling the children, she in
fact taught them little if anything.
R.J.M. did not object to P.M.'s treatment of the children
or intervene in their behalf. An electronics technician at the
Clear Air Force Base, he was "an absent parent"who "saw little of
his children and provided little for them other than earning an
income."
R.J.M. and P.M. separated in 1990 and entered into an
acrimonious divorce action, which culminated in a three-day trial
in March 1992. After the separation, P.M. reported that R.J.M. had
sexually abused S.M.; as a result of the report, P.M. took custody
of S.M. and J.M., and R.J.M.'s contacts with the children were
restricted by court order to supervised visits.
On October 22, 1991, during one of the supervised visits,
P.M. and R.J.M. became embroiled in an altercation in the
children's presence. R.J.M. apparently provoked P.M. until she
"totally lost control." P.M. attacked R.J.M. physically,
threatened him with a knife, and threw a fork at him; the fork
missed R.J.M. but struck J.M. P.M. proceeded to scream obscenities
at R.J.M. and the children, ordering S.M. to get out, and telling
her to "take a rope and hang yourself in your bedroom."
As a result of this incident, the Division of Family and
Youth Services (DFYS) took emergency custody of the children and,
two days later, petitioned for temporary CINA custody. The CINA
petition described the October 22 altercation and alleged the need
to protect J.M. and S.M. from imminent harm arising out of P.M.'s
"long and significant history of mental instability,"and R.J.M.'s
alleged sexual abuse.
Superior Court Judge Mary E. Greene found probable cause
to believe that S.M. and J.M. were CINA, and granted temporary
custody to the State through December 27, 1991. Some time before
then, however, DFYS decided to relinquish custody of the children
to R.J.M. P.M.'s accusation of sexual abuse against R.J.M.
remained unsubstantiated, and neither child had reported sexual
abuse by anyone. "[S]ince [P.M.] was still exhibiting bizarre
behaviors which greatly restricted her ability to care for the
children, they were returned to the custody of [R.J.M.]."
P.M.'s and R.J.M.'s divorce case was tried before Judge
Greene in March 1992; their divorce became final on April 29, 1992.
In resolving the issue of custody during the divorce trial, Judge
Greene found that P.M. and R.J.M., together, "created an extremely
dysfunctional homelife for the children." Nevertheless, the judge
also found that the children were generally "happy, healthy, and
apparently well-adjusted." Rejecting as "totally unfounded"P.M.'s
claims that R.J.M. had sexually abused the children, the judge
awarded legal and physical custody to R.J.M., noting that "[P.M.'s]
mental problems make it impossible for her to provide good care for
the children in meeting all of their needs."
Judge Greene granted P.M. visitation rights, but required
that her visits be supervised by a neutral third party "until such
time as [P.M.] obtains treatment which will allow her to control
her behavior." Judge Greene also ordered "a program of regular
counseling"for R.J.M., S.M., and J.M.
S.M. and J.M. remained in R.J.M.'s care from December
1991 until July 1993. During this time, R.J.M. continued to be "an
absent parent,"hiring a series of nannies to care for the
children. On July 14, 1993, the third of these nannies, Nyakerario
Omete Brown, who had become romantically involved with R.J.M.,
reported that she suspected R.J.M. of sexually abusing S.M. Upon
receiving Brown's report of sexual abuse, DFYS took emergency
custody of the children. The Alaska State Troopers interviewed
S.M. the next day (an interview that Judge Greene would later find
"seriously flawed"), and S.M. confirmed Brown's report, telling the
troopers "that her father had been sexually abusing her over a
period of time."
Based on the report of S.M.'s sexual abuse, DFYS filed a
CINA petition for temporary custody on July 17, 1993. In August,
the initial petition was replaced by a petition reiterating the
sexual abuse allegations, noting that S.M. "refuse[d] to return to
her father's care,"and asserting that S.M.'s abuse in turn
"created an unhealthy emotional climate for [J.M.]." The petition
went on to state that P.M. was unable to care for the children due
to her mental instability. Accordingly, the petition asserted that
"[n]either parent is now able to provide for the emotional, mental
and social needs of either child."
A month after the children were taken into emergency
custody, DFYS psychologist Marti Cranor performed psychological
evaluations on them. Cranor reported that J.M. was "under-
socialized"and that S.M. had poor socialization skills. Cranor
found J.M. to be "an emotionally disturbed boy who struggles with
significant feelings of anxiety and depression. He is an unhappy
boy whose needs for dependency and protection are not being met."
Cranor felt that J.M.'s depression might turn to attempts at
suicide. Cranor found S.M. to be "a highly anxious, insecure, and
depressed young lady who feels inadequate and inferior"; Cranor
also noted that S.M. was "overly concerned with sexual matters,"
was "at risk for promiscuous behavior,"and had "strong needs for
support, structure, nurturance, and dependency which are not
currently being met."
S.M. and J.M. were initially placed in a foster home in
Nenana; at the end of October, DFYS moved them to a foster home in
Fairbanks in order to facilitate visitation with P.M. (who lived
there) and to give them easier access to counseling.
On October 25, 1993, R.J.M. stipulated, without admitting
to any criminal act, that S.M. and J.M. were CINA and that their
best interests would be served by committing them to State custody
for a period not to exceed two years. As part of the stipulation,
R.J.M. agreed to participate in a sexual offender evaluation, and
DFYS agreed not to make the results of the evaluation available for
criminal prosecution.
The superior court accepted R.J.M.'s stipulation. After
a hearing concerning P.M.'s situation, Judge Greene noted that P.M.
had failed to follow through on the treatment recommendations made
in the divorce action; the judge found P.M. incapable of caring for
her children due to her mental problems and concluded that she
would remain incapable "until she learns controls on her behavior
and develops an understanding of how her behavior impacts the
children." The court thus left the children in foster placement.
Beginning in December 1993, S.M. and J.M. were taken out
of foster care to spend a five-week visit with P.M. By the end of
the visit, J.M. was anxious to go back to Nenana, but S.M.
adamantly opposed leaving P.M. DFYS remained convinced, however,
that P.M.'s mental problems prevented her from being a viable long-
term custodian. The children's therapist recommended that they be
given a permanent placement, preferably in Nenana.
Meanwhile, S.M. had recanted her statement to the Alaska
State Troopers concerning R.J.M.'s acts of sexual abuse; R.J.M. had
been seen by a specialist in the assessment of sexual offenders,
who had concluded that R.J.M. did not fit the profile of a
pedophile. Having no access to the troopers' criminal
investigation files and having never been given the details of
Nyakerario Omete Brown's initial report of sexual abuse, DFYS found
itself unable to confirm that R.J.M. had sexually abused S.M.
Under these circumstances, in mid-January 1994, DFYS reluctantly
decided to return the children to R.J.M.
On the day set for return of custody, however, R.J.M.,
accompanied by Nyakerario Omete Brown, appeared at the DFYS office
and notified the children's case worker that "it would not be in
the children's best interest to return home that day to him."
R.J.M. gave no further explanation. At a follow-up meeting the
next week, however, R.J.M. said he would be willing to take the
children back at some unspecified future time; he explained that
Brown would no longer be living at his house, so he needed to make
alternative child-care arrangements.
DFYS took R.J.M.'s behavior as a sign that his children
"weren't as important as what was going on in his personal life."
At a deposition of Nyakerario Omete Brown conducted in February
1994, DFYS heard for the first time the specifics of Brown's sexual
abuse allegations. Furthermore, S.M. seemed "extremely upset"at
the prospect of being returned to her father. [Fn. 2] Accordingly,
DFYS reconsidered its options and decided against returning custody
to R.J.M.
After again placing the children in foster homes, DFYS
decided upon a permanent guardianship arrangement as "the most
appropriate goal for the children." S.M. eventually found
placement with a family in Seward; J.M.'s Fairbanks foster family
volunteered to become his permanent guardians. On December 30,
1994, the court adopted a DFYS case plan recommending permanent
guardianships. The following month, DFYS petitioned for
appointment of guardians; trial was set for May 1995.
R.J.M. and P.M. actively resisted the State's proposed
guardianship arrangements. So actively, in fact, that both sets of
prospective guardians felt threatened by R.J.M.'s and P.M.'s
actions and began to fear that their efforts to prevent the
guardianships might persist and escalate. [Fn. 3] Both prospective
guardian families became reluctant to proceed with the
guardianships under these circumstances.
DFYS decided against searching for new guardians: but for
the coercive atmosphere created by R.J.M. and P.M., the current
placements seemed to be working out well for both children;
moreover, altering custody to new guardian candidates might prove
futile, since they, too, might be readily threatened and
intimidated.
Given R.J.M.'s and P.M.'s history of disruptive parental
conduct and the "prospect . . . of ongoing embattlement,"DFYS
concluded that the proposed guardianships were no longer a viable
option and that termination of parental rights offered the only
realistic chance of preserving the children's current placements.
On May 11, 1995, the agency petitioned to terminate R.J.M.'s and
P.M.'s parental rights; several days later, the agency moved to
dismiss the previously filed guardianship action. [Fn. 4]
B. Proceedings
After dismissing the guardianship case, the superior
court scheduled the parental termination action for trial. The
termination trial began on December 26, 1995, and, with periodic
interruptions, lasted until March 7, 1996.
Following trial, Judge Greene thoroughly evaluated the
evidence and made extensive findings concerning the evidence she
had heard over the course of the lengthy and hotly disputed
proceedings. The core of the judge's findings related to the issue
of emotional neglect.
In relevant part, Judge Greene found that, although there
was no evidence that S.M. and J.M. had been physically abused or
physically neglected by R.J.M. and P.M., there was clear and
convincing evidence that both children had "suffered substantial
emotional neglect as a result of conditions created by both Mr. and
Mrs. [M.]"Judge Greene likewise found that R.J.M. and P.M. were
"unable to provide for the emotional, mental, and social needs of
[S.M.] and [J.M.]." These findings led Judge Greene to conclude
that S.M. and J.M. were children in need of aid under AS
47.10.010(a)(2)(F).
After determining that DFYS had "made reasonable efforts
to eliminate the need for removal of the children from the parental
home,"Judge Greene went on to find clear and convincing evidence
that S.M. and J.M. would likely continue to suffer substantial
emotional neglect if they remained in the custody of their parents.
These findings vested the court with authority to
terminate R.J.M.'s and P.M.'s parental rights as to both children.
However, upon considering the best interests of each child, Judge
Greene decided that in light of S.M.'s advanced age and her
established bonds with both parents, termination of her parental
ties to R.J.M. and P.M. would not serve her best interests.
Accordingly, Judge Greene ordered R.J.M.'s and P.M.'s parental
rights terminated only as to J.M. While declining to terminate
R.J.M.'s and P.M.'s parental ties to S.M., the judge ordered S.M.
to continue in State CINA custody for a period not to exceed two
years.
III. Discussion
The M.s appeal on multiple grounds; their primary
challenge, however, is to the propriety of the order terminating
parental rights as to J.M. [Fn. 5] We address this issue first.
 A. Propriety of J.M.'s termination
1. Standard of review and statutory framework
In reviewing the trial court's factual findings on the
issue of termination, we apply the "clearly erroneous"standard.
In re S.A., 912 P.2d 1235, 1237 (Alaska 1996). [Fn. 6] However, in
determining whether the trial court's findings comport with the
requirements of the CINA statutes and rules, we deal with questions
of law, and so apply the de novo standard of review. See R.R. v.
State, 919 P.2d 754, 755 n.1 (Alaska 1996); Langdon v. Champion,
745 P.2d 1371, 1372 n.2 (Alaska 1987). We bear in mind at all
times that terminating parental rights is "a drastic measure." In
re J.L.F. & K.W.F., 828 P.2d 166, 170 (Alaska 1992).
The statutory framework governing the termination of
parental rights is well established. Under AS 47.10.080(c)(3),
termination is authorized
upon a showing . . . by clear and convincing
evidence that there is a child in need of aid under AS 47.10.010(a)
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).
This statute requires the court to determine, initially,
whether there is clear and convincing evidence warranting a CINA
adjudication under AS 47.10.010(a)(2). Nada A. v. State, 660 P.2d
436, 439-40 (Alaska 1983). Then, still guided by the clear and
convincing evidence standard, the court undertakes an additional
two-step inquiry, asking, first, whether the child is a child in
need of aid "as a result of parental conduct"and, second, whether
that conduct "is likely to continue to exist." Id. at 440 (quoting
AS 47.10.080(c)(3)); A.M. v. State, 891 P.2d 815, 819 (Alaska
1995), overruled in part by In re S.A., 912 P.2d at 1241. In
addition, in any case involving removal of a child from home, the
court must find that "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 to the home." CINA Rule
15(g). Last, as with any other dispositional order entered under
AS 47.10.080(c), the court must consider whether the disposition of
terminating parental rights is in the best interests of the child.
AS 47.10.082(1); Nada A., 660 P.2d at 439-40.
Subsections (A) through (F) of AS 47.10.010(a)(2) define
the various substantive grounds for a CINA adjudication. [Fn. 7]
Here, as a predicate for placing S.M. in State custody and
terminating R.J.M.'s and P.M.'s parental rights as to J.M., the
trial court found clear and convincing evidence of CINA status
under subsection (F) of AS 47.10.010(a)(2); this provision allows
the trial court to make a CINA finding when a child has "suffered
substantial physical abuse or neglect as a result of conditions
created by the child's parent, guardian, or custodian."
2. Trial court's finding of CINA jurisdiction under
subsection (F)
While finding no evidence that S.M. or J.M. had been
physically abused or physically neglected by their parents, the
trial court interpreted subsection (F)'s central statutory phrase
"substantial physical abuse or neglect"to include substantial
emotional neglect. Specifically, the court read the word
"physical"as modifying the word "abuse"but not the word
"neglect"; in contrast, the court read "substantial"as modifying
both "abuse"and "neglect." The court thus construed subsection
(F)
to include substantial neglect of the
children's needs. Those needs include emotional, social,
psychological needs, and therefore, [(F)] includes substantial
emotional neglect.
Applying this interpretation to the evidence presented at trial,
the court found by clear and convincing evidence that both J.M.
and S.M. had suffered "substantial emotional neglect as a result of
conditions created by both [R.J.M. and P.M.]." The court found
both children CINA as to both parents on this ground.
3. Propriety of including emotional neglect under
subsection (F)
The M.s argue that the trial court misread subsection
(F); they insist that the subsection reaches only physical harm:
that, properly construed, the statutory phrase "substantial
physical abuse or neglect"must mean "substantial physical abuse"
or "substantial physical neglect." For a number of reasons, we
agree.
a. Analysis of subsection (F)'s phrasing
As a matter of syntax alone, the trial court's
interpretation of subsection (F) seems strained. The key statutory
phrase is "substantial physical abuse or neglect." A colorable
argument might be made from this phrasing that "substantial"and
"physical"both modify "abuse"but that neither modifies "neglect."
The phrasing provides no basis, however, for splitting the
modifiers -- that is, for applying "substantial"to both "abuse"
and "neglect,"while applying "physical"only to "abuse."
b. Analysis of common meanings of "abuse"and
"neglect"
Nor do the common definitions of "abuse"and "neglect"
suggest a basis for concluding that "physical"was meant to apply
to one word but not the other. As commonly defined, "abuse"means
"wrong, bad, or excessive use[;] . . . mistreatment; injury,"while
"neglect"means "lack of sufficient or proper care; negligence;
disregard."[Fn. 8] These definitions make clear that "abuse"and
"neglect"are corollary terms. Both imply the potential for
infliction of harm; the former word generally denotes potentially
harmful action, while the latter generally denotes potentially
harmful inaction. [Fn. 9]
Hence, "abuse"and "neglect"differ not in the quality or
quantity of inflicted harm but rather in the manner in which that
harm is brought about: whether the harm results from active or
passive conduct. The potential harm encompassed by each word is
identical; if the harm results from improper action, we label the
action abuse; if the same harm results from improper inaction -- a
failure to act by one who has a duty to do so -- we label the
inaction neglect.
Often, of course, there is no clear line of demarcation
between abuse and neglect. Since these corollary terms do not
differ in the types of harm they cover but rather describe the
manner in which an injury is brought about, their area of overlap
is broad. Any injury may result from multiple causes. Depending
on the perspective of the viewer, a given injury may be seen as
resulting from abuse, neglect, or both; attaching one label or the
other is frequently an arbitrary process. [Fn. 10]
c. Analysis of subsection (F) in light of CINA
statute's intent
That abuse and neglect are little more than two sides of
the same coin is critical for purposes of interpreting subsection
(F)'s key phrase, "substantial physical abuse and neglect." We
must interpret the CINA statute "in accordance with its plain
intent." In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). The plain
intent of AS 47.10.010(a)(2) is to protect children in need of aid
from harm. Given that abuse and neglect are labels for active or
passive causes of the very same harm, and given further that these
labels are often interchangeable, it seems virtually inconceivable
that a legislature intent on protecting children from harm should
enact sharp and seemingly haphazard distinctions between harm
resulting from parental abuse, on the one hand, and like harm
resulting from parental neglect, on the other.
Because "abuse"and "neglect"are commonly viewed as
integral parts of a single concept of harm, joining these words
together -- as in the phrase "abuse or neglect"-- is commonplace
in ordinary usage. For example, Chapter 10 of Title 47 repeatedly
refers to "child abuse or neglect." See AS 47.10.310(c)(4)(A); AS
47.10.340(2); AS 47.10.394(b)(1); and AS 47.10.396(2). It cannot
plausibly be suggested that the legislature intended "child abuse
or neglect"to include either "child abuse"or "neglect"of
children and adults; rather, the legislature obviously meant
"child"to modify both "abuse"and "neglect." A similar intent
seems apparent when "physical,"rather than "child,"is used to
form "physical abuse or neglect." It is interesting to note that
the closely analogous phrase "physical injury or neglect"is used
by AS 47.17.010 (setting out the purpose of Alaska's Child
Protection Act) in a sentence whose structure unmistakably
indicates that "physical"applies to both "injury"and "neglect":
"In order to protect children whose health and well-being may be
adversely affected through the infliction, by other than accidental
means, of harm through physical injury or neglect, mental injury,
sexual abuse, sexual exploitation, or maltreatment . . . ." Had
the legislature meant to apply the modifier "physical"only to
"injury,"the correct phrasing would have been: "physical injury,
neglect, mental injury, [etc.]."
It would make no sense to preclude the State from
intervening on behalf of a child whose self esteem is hurt by the
tirades of an infuriated parent -- active conduct amounting to
emotional abuse -- while inviting intervention on behalf of a child
identically hurt by the inattentiveness of an "emotionally distant"
parent -- passive conduct amounting to emotional neglect. The
senselessness of this result leaves no reason to think that the
legislature meant "substantial physical abuse and neglect"to cover
only one narrow form of abuse, physical abuse, but virtually any
form of neglect, be it physical, mental, emotional, or social. [Fn.
11]
d. Contextual analysis of subsection (F)
A contextual reading of subsection (F) supports the
interpretation suggested by its plain meaning and apparent intent.
Subsection (F) is one of six subsections defining CINA status,
subsections (A) through (F). Two of the six -- subsections (A) and
(B) -- directly address nonphysical harms. Subsection (A) defines
CINA status to include any child "having no parent . . . willing to
provide care[.]" For purposes of this subsection, "care"is
sweepingly defined to include "the physical, emotional, mental, and
social needs of the child[.]" AS 47.10.990(1). Subsection (B)
likewise encompasses nonphysical harms, defining CINA status to
include any child in need of aid as a result of a parent's knowing
failure to provide "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[.]"
Viewed in context with its five companion subsections,
then, subsection (F) seems to be aimed at a distinct and relatively
narrow problem: physical harms resulting from abuse or neglect.
This is certainly the way we understood the provision when we said
recently in In re S.A., 912 P.2d at 1241, that "[s]ubsection (F)
concerns 'substantial physical . . . neglect.'"(Ellipsis in
original.) Furthermore, this straightforward contextual reading of
subsection (F) is compatible with S.A.'s "analysis of the structure
and purposes of the entirety of AS 47.10.010(a)(2)." Id. at 1240-
41.
In S.A., the State argued for an interpretation of
subsection (A) that would have allowed a CINA adjudication to be
based on a general finding of inability, rather than unwillingness,
to provide care. Id. at 1239-40. Our analysis of the CINA
statute's structure as a whole led us to reject the State's
proposed interpretation. Id. We described the six subsections of
AS 47.10.010(a)(2) as consisting of one provision generally
covering situations in which care is altogether lacking and five
narrower provisions covering particular kinds of improper care:
[S]ubsection (A) is designed to deal with
situations where the parent abandons the child, the child runs
away, or the child refuses to accept the parent's care. The
seriousness of these kinds of situations is congruent with the
types of circumstances covered by subsections (B) through (F).
Unlike subsection (A), which focuses on a
parent's willingness to care and does not explicitly give superior
courts guidance in determining what constitutes inability to care,
subsections (B) through (F) contain specific standards for
adjudicating a child CINA and terminating parental rights based on
a parent's or caregiver's inability to care. Under subsection (B),
inability to provide needed medical treatment can support a CINA
finding. Subsection (C) covers inability to care that causes, or
creates an imminent and substantial risk of, substantial physical
harm. Subsection (D) deals with sexual abuse or a danger of
sexual abuse caused by a parent's inability to supervise a child or
by other conditions created by the parent. Subsection (E) permits
a CINA adjudication if a parent approves the commission of
delinquent acts by the child. Subsection (F) concerns
"substantial physical . . . neglect."
Id. at 1241 (footnote omitted).
In rejecting the State's proposed interpretation of
subsection (A), we reasoned that this interpretation "would permit
CINA adjudications [under subsection (A)] based on parenting defi-
ciencies much less severe than those covered under [subsections]
(B)-(F)." Id. at 1240. We explained:
[T]he 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.
. . . 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."
Id. at 1241 (citations omitted).
We also reasoned that broadening subsection (A) in the
manner proposed by the State
would make . . . subsections (B) through (F)
superfluous. A superior court would not have to determine whether
the requirements in subsections (B) through (F) were met if the
court could easily declare a child CINA upon a general finding of
inability to care under subsection (A).
Id. (footnote omitted).
In the present case, were we to accept the interpretation
of subsection (F) adopted by the court below and advocated by the
State on appeal, we would effectively do with that subsection what
we specifically declined to do with subsection (A) in S.A.: we
would convert subsection (F) from a provision stating a "clear,
specific standard[,]"id. at 1240, and describing a "serious form[]
of parental misconduct,"id., into a general provision that would
enable the State "to assume custody over any child who had needs
the child's parents could not meet." Id. at 1241. So construed,
subsection (F) would allow parental rights to be terminated "on the
grounds that [children] would not 'meet their potential' with
[their parents]." Id. The interpretation would also render
subsections (A) through (E) superfluous by ensuring that "the court
could easily declare a child CINA upon a general finding of"
substantial emotional neglect. Id. This is precisely the kind of
overarching interpretation we have already refused to attach to
subsection (A).
e. State's definition-based argument
Although the State argues vigorously that subsection (F)
should be read to cover any kind of neglect, so long as it is
"substantial,"its argument is unpersuasive. The State points
first to AS 47.17.290, which defines "neglect,"as "the failure by
a person responsible for the child's welfare to provide necessary
food, care, clothing, shelter, or medical attention for a child."
AS 47.17.290(10) (emphasis added). Focusing on the word "care"in
this definition, the State points next to AS 47.10.990(1), which
defines care to mean "to provide for the physical, emotional,
mental, and social needs of the child[.]" This definition leads
the State to conclude that "neglect,"as used in subsection (F),
cannot be restricted to physical neglect, but must also include
emotional, mental, and social neglect.
There are two flaws in the State's logic. First, the
State relies on definitions of "neglect"and "care"that do not
apply to subsection (F). The definition of "neglect"set out in AS
47.17.290(10) is expressly limited to statutory provisions
contained in chapter 17, title 47. See AS 47.17.290. This
definition of neglect is therefore inapplicable to any provision in
chapter 10 of title 47, where the CINA statute is located.
Similarly, the definition of "care"set out in AS 47.10.990(1)
applies, in relevant part, only to subsection (A) of the CINA
statute ("'care' . . . under AS 47.10.010(a)(2)(A). . . means
. . ."), and thus by its own terms has no application to subsection
(F).
Second, even if these definitions applied to the word
"neglect"as generally used in AS 47.10., their application in the
specific context of subsection (F) would remain unresolved.
Indeed, the State's argument essentially assumes away the major
question of statutory construction presented in this case. The
crucial issue here is not what "neglect"means standing alone;
rather, it is whether the word's appearance in subsection (F)'s
statutory phrase "substantial physical abuse and neglect"subjects
it to the restrictive force of the modifier "physical." The
State's definition-based argument provides no help in resolving
this issue, for it simply presupposes that "neglect"stands alone,
unmodified by "physical."[Fn. 12]
The dissent maintains that the legislature "must have
thought that it was addressing the same sorts of harm in AS
47.10.010(a)(2)(F)"as it defined in AS 47.17.290. The dissent
asks, "Why would the legislature require reports of harm under AS
47.17 for neglect resulting in mental injury unless it intended the
same sorts of harm to trigger CINA jurisdiction?" This question is
easily answered.
While the legislature undoubtedly intended chapter 17's
reporting requirements to maximize the State's awareness of
situations calling for CINA intervention, this hardly establishes
that the legislature meant to require reports only when an observed
harm was in itself so serious as to warrant formal CINA
adjudication. To the contrary, it would seem logical that a
legislature desiring to maximize information would require
reporting of all circumstances in which a need for CINA
intervention seemed reasonably possible. Mental and emotional
harms can justify or contribute to CINA adjudication under AS
47.10.010(a)(2)(A) and (B) and are frequently indicative of other
types of harm covered by other subsections of the CINA statute.
Thus, the legislature had good reason to require emotional and
mental harm to be reported, even if it wanted to exclude emotional
neglect as a basis for CINA adjudication under subsection (F).
Moreover, the grounds for formal CINA adjudication are
not coextensive with the threshold grounds for CINA intervention.
Emergency CINA custody is allowed without court order under the
circumstances set out in AS 47.10.142(a). These circumstances
specifically include "neglect"in the broad sense defined in AS
47.17.290, but only when a minor is "grossly neglected"and it
appears that immediate removal "is necessary to protect the minor's
life or provide immediate necessary medical attention."
For present purposes, this provision has threefold
significance: First, it plainly establishes another basis for
Chapter 17's reporting requirement. Second, it clearly
demonstrates that the legislature did not want emotional neglect to
trigger even an emergency intervention in the absence of a strong,
objectively verifiable physical need. And, third, it creates for
temporary intervention a standard of "gross neglect"that seems
difficult to reconcile with dissent's proposed reading of AS
47.10.010(a)(2)(F), which would require only "substantial neglect"
to justify permanent termination of parental rights. [Fn. 13]
f. Terminating parental rights as to J.M. based
on emotional neglect unjustified
We agree with the dissent that the CINA statute is
difficult to interpret and could benefit from a comprehensive and
thoughtful revision. But under the current version of the statute,
we find no justification for enlarging subsection (F) to include
forms of neglect beyond substantial physical neglect. We conclude
that a CINA finding under AS 47.10.010(a)(2)(F) is appropriate only
upon proof of substantial physical abuse or substantial physical
neglect.
In the present case, the trial court based its decision
to terminate R.J.M.'s and P.M.'s parental rights as to J.M. on a
finding of CINA status under subsection (F). In so doing, the
court erroneously construed subsection (F) to extend to all forms
of substantial neglect and specifically relied on emotional neglect
to find the subsection applicable to J.M. Accordingly, the trial
court's order terminating parental rights as to J.M. must be
vacated. [Fn. 14]
4. Subsection (A) as a potential alternative ground
for CINA adjudication
a. Trial court's rejection of subsection (A)
It does not necessarily follow that termination under
other subsections of the CINA statute would be inappropriate. As
we have already mentioned above, two provisions other than
subsection (F) address harms resulting from emotional, mental, and
social abuse and neglect: subsections (A) and (B). Here, as
originally conceived, the primary theory of the State's case was
that J.M. and S.M. were CINA under subsection (A) because P.M. and
R.J.M. were incapable of meeting the children's emotional, mental,
and social needs. The State actively prosecuted its case under
this theory until mid-trial, when this court's decision in S.A. was
announced. S.A. held that willingness to provide care, rather than
ability to provide care, is the proper measure of CINA status under
subsection (A). In re S.A., 912 P.2d at 1241-42. Since both
R.J.M. and P.M. had consistently expressed willingness to care for
J.M. and S.M., the trial court concluded that S.A. barred CINA
adjudication under subsection (A).
Pressed by the sudden unavailability of subsection (A),
the State resorted to subsection (F) as a fallback, arguing that
"substantial physical abuse or neglect"meant either substantial
physical abuse or substantial neglect of any kind. The trial court
accepted the State's fallback position, noting with regret that it
would have found CINA status under subsection (A) but for this
court's just-announced decision in S.A.:
Based on all the evidence I conclude by
clear and convincing evidence that Mr. and Mrs. [M.] are unable to
provide for the emotional, mental, and social needs of [J.M.] and
[S.M.]. The rule of law announced in S.A. [ ] says that the
inability of the parents to provide care for the children is
trumped by the parent's willingness to provide care. Mr. and Mrs.
[M.] maintain their willingness, and since I am bound by S.A., I
must conclude that the State has not met its burden under AS
47.10.010(a)(2)(A). I, however, urge the Supreme Court, should
they review this case, to reconsider their interpretation of the
statute.
 b. Potential viability of subsection (A) CINA
jurisdiction
The trial court's abandonment of subsection (A) may have
been premature. The court and the parties alike appear to have
assumed that R.J.M.'s and P.M.'s stated willingness to care for
J.M. and S.M. automatically sufficed to preclude adjudication under
subsection (A). Indeed, Judge Greene's findings reflect her belief
that under subsection (A) the court was required to accept at face
value R.J.M.'s and P.M.'s professions of willingness to provide
needed care: "Mr. and Mrs. [M.] maintain their willingness, and
since I am bound by S.A., I must conclude that the State has not
met its burden under AS 47.10.010(a)(2)(A)."
Yet as we have more recently made clear, a parent's
stated willingness is not dispositive of CINA status under
subsection (A). In O.R. v. State, 932 P.2d 1303 (Alaska 1997), the
State, arguing against a literal application of our decision in
S.A., maintained that physical abandonment should provide an
independent basis for CINA adjudication under subsection (A),
regardless of the availability of a parent or relative who was
willing to provide care. Id. at 1309. To hold otherwise,
insisted the State, would "allow[] a parent to 'defeat' a finding
of physical abandonment 'by mere words'"; any parent threatened
with state action might, "on advice of counsel, make the minimal
gesture of somehow communicating to the court, 'I am willing to
care for this child.'" Id. at 1310.
We rejected this argument in no uncertain terms, pointing
out that actions often speak louder than words:
There is nothing in our opinion in S.A. that
prohibits a court, when assessing the willingness of an individual
to provide care for a child, from looking at actions or other
objective criteria as well as "mere words."
Therefore, we interpret subsection (A) to
mean that a determination that a parent physically abandoned a
child may also support a finding that the parent is not willing to
provide care for that child. Indeed, we believe that in many cases
the abandonment of a child demonstrates more clearly than testimony
the parent's unwillingness to provide care. Thus, . . . parents
cannot defeat a court's finding of abandonment simply by stating
that they are willing to care for a child. Rather, a court . . .
must look to objective conduct in determining whether a parent is
willing to provide care.
Id.
Here, despite R.J.M.'s and P.M.'s emphatic declarations
of willingness to care for J.M. and S.M., the trial court found
that both parents had consistently failed to provide for the
emotional, mental, and social needs of their children. The court
further found that, although the State had made diligent efforts
over many years to provide appropriate treatment and training,
neither R.J.M. nor P.M. had made any meaningful strides toward
becoming an effective parent. [Fn. 15] And in accordance with AS
47.10.080(c)(3), the court found that R.J.M.'s and P.M.'s
emotional, mental, and social neglect of their children was likely
to continue.
The trial court based these findings on an extensive
evidentiary record and articulated its decision in elaborate
detail. Our review of the record convinces us that, despite
R.J.M.'s and P.M.'s arguments to the contrary, these findings are
amply supported by the record and are not clearly erroneous. Had
the trial court additionally found that R.J.M. and P.M. are not
willing to care for their children, the combined findings would
have supported CINA adjudication under AS 47.10.010(a)(2)(A) and
termination of parental rights under AS 47.10.080(c)(3).
c. Necessity of remand to reconsider subsection
(A)
The only apparent basis for the trial court's refusal to
find CINA status under subsection (A) was its conclusion that the
court was bound to accept at face value R.J.M.'s and P.M.'s
expressions of willingness to care for their children. Yet as
pointed out in O.R., evidence of R.J.M.'s and P.M.'s continued
neglect of their children and their entrenched resistance to all
remedial efforts may in reality be more probative of their
unwillingness to provide adequate care than of their inability to
do so. See O.R., 932 P.2d at 1310. Willingness to provide care is
a factual issue for the trial court. Here, we cannot say how the
trial court would have resolved the issue had it "look[ed] to
objective conduct in determining whether [R.J.M. and P.M. were]
willing to provide care." Id. We thus conclude that a remand is
necessary in J.M.'s case to allow the trial court to reconsider, in
light of O.R., its finding on the issue of willingness to provide
care.
B. Remaining issues
Given the need for a remand and the possibility of a
renewed order of termination based on subsection (A), we think it
necessary to address several procedural issues raised by R.J.M.
1. Recusal of Judge Greene
R.J.M. contends that Judge Greene erred in failing to
recuse herself from trial. A short time before the originally
scheduled September 1995 trial date, R.J.M. requested Judge Greene
to recuse herself. He claimed that he had recently become aware of
the judge's past service as a member of the Citizens' Advisory
Committee to DFYS. He also complained of Judge Greene's exposure,
in the context of the divorce proceeding, "to inflammatory and
prejudicial testimony concerning [R.J.M.'s and P.M.'s] . . .
interaction with their two children." R.J.M. thus claimed that the
judge may have prejudged his credibility. Judge Greene declined to
recuse herself. R.J.M. renews his arguments on appeal.
Alaska Statute 22.20.020(a)(9) prohibits a judge from
acting in a matter in which the judge "feels that, for any reason,
a fair and impartial decision cannot be given." Judge Greene
resigned as a member of the DFYS advisory committee upon
appointment to the bench in 1985. The committee dealt primarily
with issues of juvenile delinquency, not CINA issues. In denying
R.J.M.'s recusal motion, the judge noted that "there is nothing
about my participation in that committee at least 10 years ago
which is a basis for recusal."
In addressing R.J.M.'s claim of exposure to prejudicial
information in the divorce proceedings, Judge Greene noted that, in
the past, R.J.M. had "consistently taken [the position] that the
two cases [the divorce and CINA proceedings] should be heard by the
same judge and, in fact, consolidated." Noting that R.J.M. had "no
concern about the court's participation in both cases when he was
granted custody of his children in the divorce,"and that "[h]is
concern only arises now when the court has issued rulings not in
his favor,"Judge Greene ruled that R.J.M.'s recent concern was
"not well-founded."
This court will not overturn a trial judge's recusal
decision "unless it is plain that a fair-minded person could not
rationally come to that conclusion on the basis of the known
facts." Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).
Applying this standard to the present circumstances, we conclude
that Judge Greene was justified in denying R.J.M.'s recusal motion.
Cf. Perotti v. State, 806 P.2d 325, 327-28 (Alaska App. 1991).
2. Psychological interview of S.M.
R.J.M. next contends that the trial court erred in
refusing to allow a psychological interview of S.M. by R.J.M.'s
therapist, Dr. Jane Krauss. R.J.M. requested the examination to
shed light on S.M.'s condition at the time of trial and to assist
Dr. Krauss in treating R.J.M. On appeal, R.J.M. argues that denial
of his request for a psychological interview prejudiced his
reunification efforts and deprived the trial court of substantial
evidence bearing on S.M.'s status.
In denying R.J.M.'s request, the trial court stated, in
relevant part:
The court does not find an adequate showing of
need. The minor has been quizzed on the allegations of sexual
assault by many people. Dr. Krauss can talk [with] them [without]
putting S.M. through another interview. It is not Doctor Krauss'[s]
role to determine what [S.M.] wants to do.
The court also noted that Dr. Krauss "clearly takes an advocacy
stand for her patient [R.J.M.]." Given these findings, which are
supported by the record, we conclude that the trial court did not
abuse its discretion in denying R.J.M.'s request.
Alternatively, we find that any error in denying the
request was inconsequential. We see no merit to R.J.M.'s claim
that denial of an interview with S.M. interfered with his treatment
efforts, in turn prejudicing his reunification efforts. The trial
court expressly found that R.J.M. had made only superficial
attempts at treatment. This finding is not clearly erroneous.
R.J.M.'s failure to make any genuine effort at treatment precludes
a finding of any significant impairment resulting from Dr. Krauss's
inability to interview S.M. Beyond this, issues concerning S.M.'s
pretrial psychological status are now moot, since the trial court
did not terminate R.J.M.'s parental rights as to S.M. and since
neither S.M. nor R.J.M. has specifically challenged the trial
court's determination that S.M. is CINA under AS
47.10.010(a)(2)(D).
3. Extension of pretrial CINA custody
R.J.M. further asserts that the trial court erred in
extending the State's pretrial CINA custody of the children beyond
the initial two-year period allowed under AS 47.10.080(c). [Fn. 16]
R.J.M. initially consented to a two-year CINA commitment. The two-
year period was to expire on October 27, 1995; trial was initially
set for September 14, 1995. At a pretrial conference in early
September, P.M.'s counsel successfully moved for a continuance
until December. R.J.M.'s attorney, however, expressed uncertainty
as to whether R.J.M. (who was not then present) would agree to
extend State custody beyond the originally agreed upon two-year
period. Judge Greene determined that she would extend custody and
that, if R.J.M. was unwilling to agree, counsel could "bring it up
later."
R.J.M. waited more than a month to lodge his objection:
on October 16, less than two weeks before the original two-year
period of custody would have expired, R.J.M. moved to release his
children back to his care and custody. The court denied his
motion. Given R.J.M.'s delay in objecting to continuation of
custody, the nearness of the trial date at that time, and R.J.M.'s
failure to make any convincing showing of potential prejudice
arising from continued State custody, the trial court's order did
not constitute an abuse of discretion. See CINA Rule 19(e)(4).
[Fn. 17] 4. Deprivation of J.M.'s and S.M.'s right to
testify
R.J.M. lastly claims that the trial court deprived J.M.
and S.M. of their constitutional right to due process by refusing
to allow them to testify under oath about their placement
preferences. Although R.J.M. couches his argument exclusively in
terms of J.M.'s and S.M.'s rights to due process, he cites no
authority establishing his standing to assert violations of the
children's constitutional rights.
Both children have participated in this appeal, yet
neither personally raises these constitutional claims. Moreover,
both children were interviewed by the court in chambers during the
trial, and the court was well aware of their placement preferences.
R.J.M. apparently did not then object to the in-chambers interview
format. On appeal he makes no persuasive showing of potential
prejudice to himself, and the record reveals none.
Under these circumstances, we hold that R.J.M. has failed
to establish standing to assert the alleged violations of his
children's constitutional rights.
IV. Conclusion
The superior court's order continuing State CINA custody
over S.M. is AFFIRMED. The superior court's order terminating
R.J.M.'s and P.M.'s parental rights as to J.M. is VACATED. This
case is REMANDED for further proceedings as to J.M. not
inconsistent herewith.
EASTAUGH, Justice, with whom COMPTON, Chief Justice, joins,
dissenting.
In my view, the superior court did not err in finding
J.M. a CINA under AS 47.10.010(a)(2)(F) (now AS 47.10.010(a)(6)).
[Fn. 1] I therefore dissent from the court's discussion of that
subsection and would affirm the judgment below. Although the
result the court reaches is preferable to outright reversal in
favor of R.J.M., it is much less desirable than outright
affirmance, the result I would reach.
C. AS 47.10.010(a)(2)(F)
The court reasons that the phrase "substantial physical
abuse or neglect"in AS 47.10.010(a)(2)(F) cannot be read as the
superior court read it, i.e., as though "substantial"modifies both
"physical abuse"and "neglect." The court explains its reasons
well, but I cannot agree with its conclusion. I read subsection
(a)(2)(F) to encompass "substantial . . . neglect,"including
emotional neglect. To read it otherwise leaves a dangerous gap in
the protection I think the statute was intended to provide.
Alaska Statute 47.10.010(a)(2) appears to me to be
intended to provide comprehensive protection for children in
jeopardy. In In re S.A., 912 P.2d 1235, 1240 (Alaska 1996), the
court noted that subsection (A) addressed situations in which the
parent abandons the child, the child runs away, or the child
refuses to accept the parents' care. Id. at 1241. This court
summarized subsections (B) through (F) as follows: "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.'" Id. at 1240.
Although I dissented from the court's interpretation of subsection
(A), id. at 1242, the court's summary of the statute's subsections
provides a useful overview of the scope of AS 47.10.010(a)(2). [Fn.
2]
The statutory list of hazards that justify CINA
jurisdiction seems thorough and complete. The list appears to
embrace all types of hazards posed to children at risk; likewise,
it appears to address all sources of substantial harm, posed either
directly by the parents or guardians, or by external forces not
remedied by parents or guardians. There is no reason to think the
legislature intended to catalogue possible hazards and sources of
harm, but intentionally declined to reach the broad and well-
recognized harm resulting from emotional neglect. [Fn. 3]
There are several grammatically permissible ways to read
the phrase "substantial physical abuse or neglect." One way is to
read both adjectives, "substantial"and "physical,"as modifying
both nouns, "abuse"and "neglect." A second way is to read
"substantial"as modifying both "physical abuse"and also
"neglect." A third way is to read the phrase as though neither
adjective modifies the noun "neglect." Thus, the phrase might
alternatively be read as though it were written as follows: (1)
"substantial physical abuse or substantial physical neglect"; (2)
"substantial physical abuse or substantial neglect"; or (3)
"neglect or substantial physical abuse."
The third reading leaves "neglect"unmodified and
therefore unlimited. It seems unlikely the legislature intended
nonsubstantial neglect to justify CINA jurisdiction. Context
supports this conclusion, because "only serious forms of parental
misconduct can support a CINA adjudication"under subsections (B)
through (F). In re S.A., 912 P.2d at 1240.
As for the second reading, there is no grammatical reason
why the adjective "substantial"cannot modify both "physical abuse"
and "neglect." Syntax does not preclude this reading, although the
court holds to the contrary. This second reading is also valid
contextually because the requirement of "substantial"neglect
prevents CINA jurisdiction from being lightly invoked for trivial
harms, and the quality of harm is comparable to that required under
other passages in subsection (a)(2).
My reading is in part propelled by my view that the
statute was intended to provide comprehensive protection, and that
subsection (a)(2)(F) is the most fitting source of jurisdiction
when a child suffers emotional neglect. That harm is not directly
treated by subsection (a)(2)(B), which instead deals with the
parents' failure to obtain professional assistance needed to treat
a child's emotional problems. The failure to provide treatment
under that subsection requires proof of elements not required by
subsection (a)(2)(F).
The first reading is also grammatically permissible. It
is the reading the court prefers. It is not the reading I think
the legislature intended, however, because it offers substantially
less protection than the grammatically and contextually valid
reading I propose. The purpose of AS 47.10.010, after all, is to
confer jurisdiction to protect children. Given two grammatically
correct ways of reading a remedial, protective statute, we should
not adopt a reading that is substantially less protective.
The court declines for a number of reasons to read
subsection (a)(2)(F) as I would.
It first relies on syntax to reason that there is no
basis for splitting the modifiers in the phrase "substantial
physical abuse or neglect"and to read "substantial,"but not
"physical,"as modifying "neglect." Op. at 16. My disagreement
with that reason is explained above.
The court next reasons that common definitions of "abuse"
and "neglect"do not suggest that "physical"was intended to modify
one word but not the other. Op. at 16-18. These common
definitions do not aid the court's analysis, although to the extent
they imply an active/passive dichotomy, they are consistent with
restricting "physical"to "abuse." Moreover, for reasons discussed
infra, I believe these common definitions should also be read in
light of the specialized definitions the legislature adopted in
similar contexts.
Next, reasoning that "abuse"and "neglect"are
overlapping corollary terms for causes of "the very same harm,"the
court concludes that it would make no sense to limit the
subsection's coverage to abuse that is physical, while extending it
to cover neglect that is physical, mental, emotional, or social.
Op. at 18-20. This reason provides the strongest support for the
reading the court proposes.
The trouble with this reason is that it assumes the
legislature intended to reach the "very same harm"for both abuse
and neglect. Unfortunately, interpretation of AS 47.10.010(a)(2)
has long been problematic, and we have often struggled to interpret
its provisions consistently and rationally, with mixed results. I
would be more willing to assume that the legislature intended to
reach only one type of harm, physical and not emotional, in
subsection (a)(2)(F) if the legislative history did not support a
different conclusion. When the legislature amended subsection
(a)(2) by adding subsection (F) for children who suffer
"substantial physical abuse or neglect,"the same bill also amended
the AS 47.17.070(1) definition of "child abuse or neglect"to mean
"the physical injury or neglect, sexual abuse, sexual exploitation,
or maltreatment of a child . . . ." Ch. 104, sec. 8, SLA 1982
(emphasis on language added by amendment). When the legislature
amended this definition, "neglect"was defined to mean "the failure
by a person responsible for the child's welfare to provide
necessary food, care, clothing, shelter, or medical attention for
the child . . . ." AS 47.17.290(10) (formerly AS 47.17.070(5)).
The legislature again amended the definition of "child abuse or
neglect"in 1990, by adding the words "mental injury,"so that the
definition read as follows: "the physical injury or neglect, mental
injury, sexual abuse, sexual exploitation, or maltreatment of a
child." Ch. 29, sec. 5, SLA 1990. It also defined "mental
injury"
to mean injury "to the emotional well-being, or intellectual or
psychological capacity of a child, as evidenced by an observable
and substantial impairment in the child's ability to function
. . . ." Id.
The legislature, when it amended these chapter 17
definitions, must have thought that it was addressing the same
sorts of harm in AS 47.10.010(a)(2)(F). Having required reports of
harm for neglect resulting in mental injury, the legislature must
have intended that the same sort of harm could trigger CINA
jurisdiction. It required reporting in order to permit delivery of
protective services to prevent further harm, to enhance the general
well-being of children of Alaska, and to preserve family life
whenever possible. AS 47.17.010; ch. 104, sec. 3, SLA 1982. There
is
no reason to think the legislature intended to reach emotional harm
resulting from neglect in chapter 17, but also intended that
neglect resulting in emotional harm could not be the basis for CINA
jurisdiction in chapter 10. [Fn. 4]
Thus, the obverse of the court's argument that CINA
jurisdiction would be unduly enlarged if "physical"did not modify
"neglect"is the argument that the court's reading would unduly
limit the protection the statute provides. To read it as I propose
at least covers emotional neglect, even if it does not cover
emotional abuse. Because other provisions imply that the
legislature intended to reach emotional neglect, I prefer to be
guided by those than to rely on a narrow interpretation that
deprives children of this protection.
The court next reasons that subsection (a)(2)(F) seems to
be aimed at the problem of physical harms resulting from abuse or
neglect. Op. at 20-23. I disagree, because I do not read
subsection (a)(2)(F) to be aimed only at physical harms, given
other contemporaneous and subsequent amendments to AS 47.17. [Fn.
5]
The court also finds that accepting the superior court's
interpretation of subsection (a)(2)(F) would convert it into a
"general provision"that would enable the State to assume custody
over any child who has needs the child's parents could not meet,
and would render subsections (a)(2)(A) through (a)(2)(E)
superfluous. Op. at 23. I disagree. I do not read the six
subsections of subsection (a)(2) to be so discrete. They naturally
overlap with respect to both parental behaviors and the harms the
children suffer. A given situation may well implicate two or more
of these subsections. Moreover, there is no danger that subsection
(a)(2)(F) will render other subsections superfluous. It certainly
does not render subsection (a)(2)(B) superfluous, because even
though that subsection specifically deals with mental harm, it does
so only in context of a parent's knowing failure to provide
professional treatment for that harm. The court may be concerned
that the reading I would give the statute would permit DFYS to
interfere inappropriately with child-parent relationships.
Although that is a legitimate concern, reading "substantial"as
modifying "neglect"adequately protects against undue DFYS
interference. That is, after all, the limitation the legislature
found adequate when it amended subsection (a)(2) to include
"substantial physical abuse."[Fn. 6]
The court also rejects the State's arguments that
definitions of "neglect"in AS 47.17.290, and "care"in AS
47.10.990(1) apply, and concludes that, even if those definitions
did apply, the "neglect"must be "physical,"and not merely
emotional. Op. at 24-25. [Fn. 7] As the court correctly notes,
the legislature did not specify that those definitions control
terms used in AS 47.10.010(a)(2)(F). On the other hand, the
legislature did not see fit to define "neglect"differently in
chapter 10. There is no reason to think it intended that the term
should be applied and defined inconsistently in chapters 10 and 17.
It is permissible to rely on statutory definitions provided in a
closely related context. We should feel comfortable borrowing
these definitions where there is no justification for applying some
other, less common, definition. Moreover, the statutory
definitions are consistent with the meanings of these words in
everyday usage. See AS 01.10.040(a).
Finally, the court rigorously examines all references in
chapter 10 to "neglect,"Op. at 27 n.13, to demonstrate that the
legislature did not intend to import chapter 17's definition of
"neglect"into chapter 10. This examination does not identify any
other definitional source, and does not establish that the reading
I propose was not intended by the legislature.
It is unfortunate that the imprecision found in AS
47.10.010(a)(2) has been the source of so much litigation. Issues
of CINA jurisdiction and termination are difficult enough without
an overlay of statutory imprecision. For example, after years of
conflicting interpretations of AS 47.10.010(a)(2)(A), [Fn. 8] the
court attempted to resolve that conflict when it issued In re S.A.,
912 P.2d 1235 (Alaska 1996). Even now issues relating to that
subsection linger on. Nothing we said in S.A., for example, would
have led the trial court in this case to anticipate O.R. v. State,
932 P.2d 1303 (Alaska 1997), or this court's discussion of
subsection (a)(2)(A) in today's opinion. Interpretation of AS
47.10.010(a)(2) has presented the courts with difficult questions.
Our answers to those questions may or may not have coincided with
the original legislative intentions, and there is a certain degree
of supposition when we adopt or propose a particular
interpretation. One might expect or wish that the State, having
received such mixed results in the past, would seek a comprehensive
revision of the CINA and Child Protective Services statutes to
enhance their consistency, and to make sure that CINA jurisdiction
encompasses the harms the legislature wishes to address, and
excludes those it does not. Statutes from all the states are
conveniently collected in 3 Thomas A. Jacobs, Children and the Law:
Rights and Obligations (1995) (Appendices). As it is now written
and interpreted, Alaska's statue is potentially overinclusive or
underinclusive, or both, depending on one's point of view. It
would be better for the legislature to revisit the statute and,
assuming it is not content with the interpretations adopted by this
court in recent years, clarify it to reflect the legislature's
actual intentions.
B. AS 47.10.010(a)(2)(A)
On a pragmatic level, and given the court's discussion of
subsection (a)(2)(A) in In re S.A., I agree with the court's
willingness to take into account a parent's record in caring for
the child in considering whether the parent is "willing"to care
for the child. I unsuccessfully proposed a more direct, and
appropriate, way to interpret subsection (a)(2)(A) in In re S.A..
FOOTNOTES
Footnote 1:
At the time of trial in this case, child in need of aid status
was defined in subsections (a)(2)(A)-(F) of AS 47.10.010.
Subsequently, the legislature repealed subsection (a)(1) of the
statute; the provisions of subsections (a)(2)(A)-(F) were retained
verbatim but were renumbered as AS 47.10.010(a)(1)-(6). AS
47.10.010(a)(6) is thus the current counterpart of former AS
47.10.010(a)(2)(F). For simplicity's sake, we will refer to the
former statutory numbering, which governed here.
Footnote 2:
At a staff meeting in April 1994, DFYS formed the consensus
"that something of a sexual nature had happened"to S.M. by R.J.M.
in R.J.M.'s home.
Footnote 3:
S.M.'s prospective guardians testified that R.J.M. contacted
them and told them "we were being wrong to do this, that we had no
right to do this"; he later sent a note saying that if they
continued to pursue a guardianship "we'll come after you one at a
time and you'll be in court forever." J.M.'s prospective guardians
testified that R.J.M. also harassed them, and repeatedly threatened
them with continued litigation, leaving them convinced that if they
pursued a guardianship they would "have him coming after us in
court."Similarly, P.M. was frequently demanding, angry, and
threatening toward both sets of prospective guardians.
Footnote 4:
S.M. and J.M. remained in their foster placements after the
termination action was filed and while the case was pending trial.
In mid-trial, however, J.M.'s placement "blew up,"and he was moved
to another home. Based on discussions with J.M.'s foster parents
and the best friend of the foster mother, J.M.'s DFYS caseworker
concluded that the crisis had been precipitated by R.J.M.'s threats
-- that J.M.'s foster mother "didn't want the [M.s] to come back on
her, that she felt very vulnerable."
Footnote 5:
S.M., as to whom parental ties were not severed, but who was
found CINA and ordered to remain in State custody, does not contest
the termination order as to J.M.; nor does she challenge her own
CINA adjudication or her custodial disposition. The only issue
raised by S.M. is a tangential one: the propriety of an order
denying a peremptory challenge of Judge Greene that was filed
shortly before trial by S.M.'s appointed counsel. However, in the
absence of any challenge to the merits of S.M.'s adjudication or
disposition, or any claim of other potential prejudice, the point
is moot. We thus do not address it.
Footnote 6:
A trial court's findings are clearly erroneous if a review of
the entire record leaves this court with a definite and firm
conviction that a mistake has been made. In re S.A., 912 P.2d at
1237.
Footnote 7:
The full text of AS 47.10.010(a)(2)(A)-(F) -- now AS
07.10.010(a)(1)-(b), see supra note 1 -- states:
(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.
Footnote 8:
Websters New World Dictionary, 6, 851-52 (2d ed. 1980).
Footnote 9:
Neither "abuse"nor "neglect"is defined in the context of
Alaska's CINA statute. But the commonly understood distinction
between passively and actively inflicted harms is reflected in
Alaska's Child Protection Act, AS 47.17., which defines "neglect"
to mean "the failure by a person responsible for the child's
welfare to provide necessary food, care, clothing, shelter, or
medical attention for a child." AS 47.17.290(10).
The distinction is also reflected in Alaska's Protection of
Vulnerable Adults Act, AS 47.24., which defines both "abuse"and
"neglect." "Abuse"is defined, in relevant part, to mean "the
wilful, intentional, or reckless nonaccidental, and nontherapeutic
infliction of physical pain, injury, or mental distress,"AS
47.24.900(2)(A); "neglect"is defined to mean "the intentional
failure by a caregiver to provide essential care or services
necessary to maintain the physical and mental health of the
vulnerable adult." AS 47.24.900(9).
This same distinction is embedded in Alaska's criminal code.
Thus, AS 11.81.600(a) specifies that "[t]he minimal requirement for
criminal liability is the performance by a person of conduct that
includes a voluntary act or the omission to perform an act that the
person is capable of performing." In turn, AS 11.81.900(b)(59) and
(38) define "voluntary act"to mean "a bodily movement performed
consciously as a result of effort and determination[,]"and
"omission"to mean "a failure to perform an act for which a duty of
performance is imposed by law."
Footnote 10:
For example, a parent driving a car with a child passenger who
is not strapped into a child restraint may be blamed either for
committing an act of neglect by failing to secure the child safely
or for committing an act of abuse by driving the child without a
proper restraining device. The potential harm to the child is the
same regardless of which label attaches.
Footnote 11:
The State points to no other law that hinges the State's duty
to protect a person from a given harm on the fortuitous
circumstance of whether that harm is occasioned by abuse or by
neglect. And we are aware of no such law.
Footnote 12:
To shore up its argument, the State points to our recent
decision in D.H. v. State, 929 P.2d 650 (Alaska 1996), a
termination of parental rights case prosecuted under subsection
(F), where we commented in a footnote: "As the statute and this
court's treatment of it make abundantly clear, however, the
superior court is not meant to confine its inquiry to the physical
well-being of the child." Id. at 653 n.10. The State reads this
comment to say that "neglect"under subsection (F) means something
more than physical neglect. Closer scrutiny, however, belies this
reading. When viewed in context, our footnoted mention of "the
statute and this court's treatment of it,"id., plainly referred to
the CINA statute as a whole, not just to subsection (F), since the
footnote itself related to our discussion in the opinion's text of
a proposition articulated in In re J.L.F. & K.W.F., 912 P.2d 1255,
1261 (Alaska 1996). J.L.F. & K.W.F. involved a CINA adjudication
under subsection (A), not subsection (F). J.L.F. & K.W.F., 912
P.2d at 1257-58. Moreover, the footnoted comment stands at most
for the proposition that the physical well-being of a child at any
given time cannot be determinative of whether the child has
suffered substantial abuse or neglect. This proposition holds true
whether the alleged abuse or neglect is physical or nonphysical.
Thus, our footnoted comment says nothing about whether "neglect"
under subsection (F) covers something more than substantial
physical neglect.
Footnote 13:
The dissent also suggests that Chapter 17 definitions of
neglect should be imported to subsection (F) of the CINA statutes
because the legislature did not see fit to define "neglect"in
Chapter 10, and thus likely thought "that the term should be
applied and defined [ ] consistently"in both chapters. This
argument does not bear up to scrutiny.
Apart from its appearance in AS 47.10.010(a)(2)(F), the word
"neglect"is used in only five provisions of Chapter 10. See AS
47.10.142(a)(2) and (3); AS 47.10.310(c)(4); AS 47.10.340(2); AS
47.10.394(b); and AS 47.10.396(2). Four of these five provisions
use "neglect"within the phrase "child abuse or neglect." AS
47.10.310(c)(4)(A); AS 47.10.340(2); AS 47.10.394(b)(1); and AS
47.10.396(2). Two of these four specifically define this phrase in
accordance with its definition in AS 47.17.290. AS
47.10.310(c)(4)(B); AS 47.10.394(b)(2). The two provisions that do
not define the phrase by reference to chapter 17 have no need to
define it, since they deal with confidentiality of records
generated in proceedings conducted under the two corresponding
provisions which adopt the Chapter 17 definition. AS 47.10.340(2);
AS 47.10.396(2). The only other Chapter 10 appearance of "neglect"
outside of subsection (F) is in AS 47.10.142, which, as we have
seen, expressly defines "grossly neglected"by reference to Chapter
17's definition of "neglect."
These provisions directly undermine the dissent's theory of a
general legislative intent to rely on chapter 17's definition of
"neglect"as a default definition for Chapter 10. The foregoing
summary demonstrates the legislature's ability and willingness to
include specific references to Chapter 17 definitions of "neglect"
or "child abuse or neglect"in all instances when those definitions
are called for. The most plausible explanation for the
legislature's failure to provide a definition of "neglect"in
subsection (F) thus appears to be its belief that, in the context
of a provision requiring substantial physical neglect, the word
required no further definition.
Footnote 14:
S.M.'s situation differs from J.M.'s. As we have already
mentioned, despite finding grounds for termination of parental
rights under subsection (F) as to S.M., the trial court determined
that termination would not be in S.M.'s best interests;
accordingly, the court continued S.M. in State CINA custody but did
not terminate R.J.M.'s or P.M.'s parental rights. Moreover, in
addition to finding clear and convincing evidence of CINA status
under subsection (F), the trial court relied on evidence of S.M.'s
past sexual abuse by R.J.M. to find that probable cause existed to
adjudicate S.M. CINA under subsection (D) (allowing CINA adjudi-
cation for past or imminent sexual abuse by parent). Although the
trial court declined to find clear and convincing evidence of
sexual abuse, its finding by a preponderance of evidence suffices
as an independent ground for a CINA adjudication of S.M. under
subsection (D), at least as to R.J.M.
S.M. does not contest her CINA adjudication or her placement
in State custody. While P.M. argues that the trial court erred in
relying on emotional neglect as a basis for termination of her
parental rights under subsection (F) and that the State failed to
produce sufficient evidence to warrant termination, she does not
contest S.M.'s CINA adjudication as such. R.J.M. challenges the
termination order and raises a number of additional procedural
issues; but he, too, fails to contest the trial court's CINA
determination under subsection (D) as to S.M. The trial court's
misapplication of subsection (F) thus has no direct bearing on the
validity of S.M.'s current CINA status.
Footnote 15:
In accordance with CINA Rule 15(g), the trial court expressly
found that the State had made reasonable efforts to eliminate the
need for removal of the children from the parental home. R.J.M.
disputes the sufficiency of the trial court's finding. CINA Rule
15(g) requires only that the superior court consider and evaluate
the reasonableness of the State's efforts to avoid removal; the
rule "does not require that each element of the 'reasonable
efforts' be discussed individually and in detail." R.R. v. State,
919 P.2d 754, 756 (Alaska 1996). We conclude that the superior
court's CINA Rule 15(g) findings are sufficient as to both R.J.M.
and P.M.
Footnote 16:
Under AS 47.10.080(c)(1), a minor may be placed in CINA
custody for an initial period of two years, subject to a two-year
extension upon further petition and hearing.
Footnote 17:
CINA Rule 19(e)(4) provides:
If the court is unable to decide the extension
petition before expiration of the existing disposition order, the
court may extend custody or supervision for a reasonable time
pending a decision on the extension petition.
FOOTNOTES (Dissent)
Footnote 1:
For the sake of consistency with the opinions of this court
and the superior court in this case, and with previous opinions of
this court discussing the CINA statute, I refer to the subsections
of AS 47.10.010 as they were numbered before amendment in 1996.
For example, AS 47.10.010(a)(2)(A) is now AS 47.10.010(a)(1), and
AS 47.10.010(a)(2)(F) is now AS 47.10.010(a)(6).
Footnote 2:
The court's summary of subsections (a)(2)(B) through (a)(2)(F)
was dicta. It was not necessary to decide the question presented
here, nor did the court do so.
Footnote 3:
See 1 Thomas A. Jacobs, Children and the Law: Rights &
Obligations sec. 2:18 (1995); Vincent J. Fontana and Douglas J.
Besharov, The Maltreated Child (4th ed. 1979).
Footnote 4:
Of course, the legislature might have thought that emotional
neglect was in some way covered by AS 47.10.010(a)(2)(A), but if
so, one would think the legislature also would have thought that
physical neglect would have been covered by that same subsection.
If that is how the legislature reasoned, there would have been no
reason for it to amend subsection (a)(2) by adding subsection (F)
in 1982.
Footnote 5:
As a syntactical model, the court relies on repeated
references in AS 47.10 to the phrase "child abuse or neglect,"and
reasons that the legislature obviously intended "child"to modify
both "abuse"and "neglect." Op. at 19. I find the model
unpersuasive. Given the title of chapter 10, "Delinquent Minors
and Children in Need of Aid,"that reading is the only reasonable
reading of that phrase consistent with context. In comparison,
context does not compel a conclusion that the court's reading of
the phrase "substantial physical abuse or neglect"is the only
logical, permissible reading.
Footnote 6:
The court expresses concern that mere "substantial neglect"
could justify termination of parental rights under AS
47.10.010(a)(2)(F). Op. at 27. Actually, termination of parental
rights requires proof of substantial neglect by the clear and
convincing evidence standard. AS 47.10.080(b)(3). Further, an
objection that "substantial"is not sufficiently harmful to justify
CINA jurisdiction (or termination of parental rights) is equally
applicable to "substantial physical neglect,"(the reading the
court favors). There is no dispute that the legislature approved
the "substantial"standard of harm for both jurisdiction and
termination.
Footnote 7:
The court also rejects the State's reliance on D.H. v. State,
929 P.2d 650 (Alaska 1996), where we commented: "As the statute
and this court's treatment of it make abundantly clear, however,
the superior court is not meant to confine its inquiry to the
physical well-being of the child." Id. at 653 n.10. Op. at 25
n.12. Taken at face value, the D.H. comment supports a conclusion
that the court can also look into the child's emotional well-being.
Footnote 10 was attached to the court's discussion of AS
47.10.010(a)(2)(F), the same subsection at issue here, and was made
in context of a superior court finding that D.H. had neglected T.H.
since her birth. "There [have] been no real bonding efforts on
[D.H.]'s part and no significant nurturing has taken place . . . ."
929 P.2d at 653. We held that the superior court did not clearly
err in determining that D.H. "substantially neglected"her
daughter. Id. at 654. In holding for the State, we quoted its
argument that the mother failed to make any sustained effort "to
establish a parent-child relationship with [T.H.] by remaining
available for her daily care." Id. at 653. I read the D.H.
footnote to shed light on subsection (a)(2)(F), given the factual
context and the specific issue D.H. was arguing. Moreover, the
subsection (a)(2)(F) issue in D.H. is best characterized as
involving a claim that the mother had emotionally neglected her
child. Consequently, I do not regard the quoted language as
inapplicable here. In any event, the actual holding of D.H. on the
subsection (a)(2)(F) issue is illustrative of the result I would
reach in this case.
I am also unpersuaded by the court's willingness to give
more credence to brief dicta originating in S.A. (which did not
raise or turn on a subsection (a)(2)(F) issue) than to the holding
of D.H. (which did). Compare Op. at 21-23 with Op. at 25 n.12.
Footnote 8:
See In re S.A., 912 P.2d 1235, 1241 (Alaska 1996), discussing
A.M. v. State, 891 P.2d 815 (Alaska 1995); In re T.W.R., 887 P.2d
941 (Alaska 1994); F.T. v. State, 862 P.2d 857 (Alaska 1993); In re
J.L.F., 828 P.2d 166 (Alaska 1992), and overruling A.M., T.W.R.,
and J.L.F. to the limited extent they stated that the ability to
care may be considered under subsection (a)(2)(A).
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