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In the Matter of the Adoption of Bernard A. (9/12/2003) sp-5735
In the Matter of the Adoption of Bernard A. (9/12/2003) sp-5735
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Adoption of: ) Supreme Court No. S-10771
)
BERNARD A. ) Superior Court No.
) 4FA-01-388 CI
)
) O P I N I O N
)
________________________________) [No. 5735 - September 12,
2003]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for
Appellants. Brooks W. Chandler, Hicks, Boyd,
Chandler & Falconer, LLP, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. A grandfather and grandmother appeal the decision of
the superior court denying their petition for adoption of their
grandson and granting the adoption petition of the childs foster
parents. They claim that the superior court placed undue
emphasis on the length of time that the three-year-old child had
spent in the care of his foster parents. We hold that there was
no abuse of discretion; accordingly, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Bernard A.,1 the child at the center of the current
dispute, was born in January 1999 and was removed from his
parents by the Division of Family and Youth Services (DFYS) in
August 1999. Bernard is the fifth of Linda G.s six children.
With the possible exception of an additional seventh child with
which Linda was pregnant at the time of the superior court
hearing, about which we have no further information, none of
these children is in Lindas custody. Although appellees
Constance and Clark L., Lindas mother and stepfather, immediately
asked that Bernard be placed with them when he was removed from
his parents custody in August 1999, Bernard was instead placed in
foster care with appellants Ruth K. and John A. He has lived
with Ruth and John ever since. The parental rights of Linda and
Bernards father were terminated in April 2001 due to abandonment,
substance abuse, and neglect, at which time both parents
expressed a preference that the child be placed for adoption with
Constance and Clark.
We reviewed the termination of Lindas parental rights
to two of her children, J.G. and S.G., in 2000 in L.G. v. State,
Department of Health & Social Services.2 S.G. was eventually
placed for adoption with Ruth and John, who were among her
several foster placements.3 Constance and Clark had wished to
adopt both girls themselves, and appealed the superior courts
decision granting adoption of both girls to their respective
foster parents in C.L. & C.L. v. P.C.S., but were unsuccessful.4
These decisions were based in part on several incidents that
showed that Constance and Clark lacked understanding of the
psychological needs of these children: in 1994 Constance and
Clark decided they could no longer cope with having two-year-old
J.G. placed with them on a foster care basis and simply had her
dropped off at the DFYS office without warning to DFYS or to
J.G.;5 there was evidence that DFYS workers had encountered
Constance in states of intoxication in the mid-1990s, prior to
the girls adoptions, even though this was traumatic for J.G.
given her history with her mother (at least one of these
occasions was when J.G. was brought in for a visit);6 and
Constance and Clark had in the past given Linda access to the
children in contravention of DFYS instructions after this proved
traumatic for J.G.7 Constance and Clark did later obtain custody
of Lindas sixth child, K.G., and were in the process of adopting
him at the time of the hearing in the current case.
Linda and her mother, Constance, are affiliated with
the Yupik village of Emmonak; Bernards father had no tribal
affiliation. Bernard is eligible for tribal affiliation through
his mother and is therefore an Indian child under the Indian
Child Welfare Act (ICWA).8 Clark has no tribal affiliation.
John is a Yupik and Inupiat affiliated with the village of
Kotlik. Ruth is a Yupik affiliated with the village of Emmonak.
We held in C.L. & C.L. v. P.C.S. that Ruth qualified for the
extended family placement preference9 for Lindas children because
of evidence that Yupik tradition considers a second cousin once
removed to be extended family under 25 U.S.C. 1903(2).10 In
addition, John also presented evidence in this case that his
older brother was married to one of Constances cousins.
B. Proceedings
Constance and Clark filed various amended petitions to
adopt Bernard in February and June 2001; Ruth and John filed
petitions to adopt Bernard in June and August 2001 after parental
rights were terminated in April 2001. The village government of
Emmonak was contacted, and it expressed no opinion as to where
Bernard should be placed. DFYS had legal custody of Bernard
because he was a child in need of aid, and consented to Ruth and
Johns petition. Constance and Clark finally submitted the last
of the documentation supporting their petition at the end of
September 2001, and asked for a rescheduling of the hearing on
their petition, which was granted for November 2001. After a
similar hearing on Ruth and Johns petition in November 2001, a
special master recommended in December 2001 that the two adoption
petitions be consolidated. Separately, Constance and Clark also
filed a motion to consolidate, and that motion was later granted.
The superior court accepted the special masters recommendation to
consolidate in January 2002, and hearings on the best interests
of the child were held before Special Master Alicemary L. Closuit
on February 28 and Special Master Daniel Weber on March 18-19,
2002.
In a lengthy report, Special Master Weber recommended
in late May 2002 that Ruth and John be allowed to adopt Bernard.
The primary reason for this recommendation was that several
experts had testified that early childhood bonding was of crucial
importance to a childs future emotional stability, and Bernard
had lived only with Ruth and John from the ages of seven months
to three years at the time of the hearing. The special master
also indicated that the parenting style of Ruth and John was more
likely to meet Bernards emotional needs, in light of Constance
and Clarks past behavior with J.G., including the alcohol use,
unauthorized exposure to her mother, and their sudden and
unceremonious renunciation of her foster care placement. The
special master found that the parties were equally capable of
caring for Bernards physical and cultural needs, and that each
party would provide him with differing but acceptable access to
at least some of his other relatives. The special master also
found that the families both satisfied the ICWA extended family
placement preference under C.L. & C.L. v. P.C.S.,11 but that the
placement preference of the biological parents was not entitled
to much weight in judging Bernards best interests. Constance and
Clark objected to the special masters report in June 2002. In
July Superior Court Judge Niesje J. Steinkruger adopted the
special masters report, granted Ruth and Johns petition, and
denied Constance and Clarks petition. The adoption decree was
issued on August 2, 2002. Constance and Clark appeal.
III. STANDARD OF REVIEW
An adoptive placement determination should be reversed
only when the record as a whole reveals an abuse of discretion or
when controlling factual findings are clearly erroneous.12 The
trial court abuses its discretion if it considers improper
factors, fails to consider relevant statutory factors, or assigns
disproportionate weight to some factors while ignoring others.13
In an adoption case, the courts best interests of the child
finding and other factual findings are reviewed under the clearly
erroneous standard.14 A finding is clearly erroneous only when a
review of the entire record leaves us firmly convinced that a
mistake has been made.15
We apply our independent judgment to questions of law
and adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.16
IV. DISCUSSION
The parties agree that the relevant inquiry in a
contested adoption is whether the adoption is in the best
interests of the child.17 Constance and Clark argue that the
superior court abused its discretion by overemphasizing the
length of time that Bernard had spent with his foster parents and
by deprecating other factors they argue weigh in their favor. We
reject these arguments.
A. The Trial Court Properly Considered the Length of Time
Bernard Spent with his Foster Parents.
A. Constance and Clark argue that the special master assigned
too much weight to the length of time Bernard had spent with Ruth
and John, thereby ignoring Bernards bonds with Constance and
Clark as well as several other factors which will be discussed
below in Part IV.B. They claim that this contravenes our holding
in In re A.S. that no single factor should be allowed to outweigh
all others in applying the best interests of the child standard.18
Constance and Clark also claim that the superior court should
have taken more trouble to compare the quality and duration of
Bernards bond with each of the parties, as was ordered in In re
W.E.G. & J.R.G.19
In Adoption of N.P.S., we held that in determining the
best interest of a child, [w]hether one factor outweighs another
is committed to the sound discretion of the trial court.20 In the
present case, expert witnesses testified that continuity of
caregiving is very important to the happiness and emotional
development of very young children and that unnecessary transfers
of care should be avoided, because children can suffer dramatic
emotional problems when they are not able to form stable
attachments with those around them. This accords with the
finding of the Alaska Legislature in AS 47.05.065(5)(C) that it
is important . . . to ensure that all children, especially those
under the age of six years, who have been removed from their
homes are placed in permanent homes expeditiously. In his
findings of fact, the special master did not ignore Constance and
Clarks relationship and bond with Bernard, but simply found that
even a gradual transition into their care would disrupt his life
unnecessarily and possibly to his great detriment. The special
master considered numerous other factors in Bernards case,
including cultural literacy and participation, ability to meet
his physical needs, and access to his other relatives, and often
found either that they weighed equally in favor of both parties,
or that Ruth and John had performed better in the past. While it
is certainly true that Bernards continuous residence with Ruth
and John for thirty of his thirty-seven months by March 2002, the
end of trial, appears to have been the most significant factor in
this case, it is hardly an abuse of discretion to find that among
several factors, many of which weigh equally between the parties,
one takes on the most importance. This does not amount to a
single factor . . . outweigh[ing] all others in applying the best
interests of the child standard.21
Constance and Clark also argue that Bernards continuity
of care with Ruth and John results artificially from the superior
courts refusal to hear their first adoption petition in February
2001 when they filed it. In effect, they imply that continuity
of care should be disregarded in determining placement in this
case because continuity of care resulted from the superior courts
refusal to hear their first petition promptly. As a preliminary
matter we must observe that a standing master of the Fairbanks
Probate Office notified Constance and Clark on February 15, 2001
that their petition was incomplete because it lacked numerous
supporting documents required under Alaska Adoption Rules 6, 8,
9, and 10; AS 18.50.510; AS 25.23.040, .060, .080, .090, .100,
.170, and .185; and 25 U.S.C. 1912-1913. Constance and Clark
did not file the last of these documents until September 27,
2001, and the case progressed smoothly thereafter given its
complexity. But we also note that even in February of 2001,
Bernard had spent eighteen of his twenty-four months in the sole
care of Ruth and John. It is unfortunate that an initial foster
care placement of a very young child in need of aid may ripen
into an adoptive placement precisely because of the need for
continuity of care.22 For this reason we encourage trial courts
to expedite and dispose of adoption contests as soon as possible.
But statutory law23 and the testimony of experts relied upon in
case law24 tell us that multiple placements of very young children
put them at risk of grave psychological consequences. It is the
duty of the trial court to move cases expeditiously and to rule
in the best interest of the child, and the perceived fairness of
the result to the adults involved is necessarily of secondary,
and far less, importance than the best interests of the child.
As one expert in the case put it, the question is where the
childs best interests lie, not which of the applicants is the
most deserving.
B. The Trial Court Properly Evaluated and Placed Sufficient
Emphasis on Factors Weighing in Favor of the Grandparents.
A. Constance and Clark essentially argue that instead of
stressing Bernards long-term and successful care by Ruth and
John, the trial court should have been persuaded by several
factors that they contend weigh in their favor. We hold that the
special master made no clearly erroneous factual findings against
Constance and Clark, and did not abuse his discretion in
declining to give certain factors more weight.
1. The alleged inability of Ruth and John to
supervise the child safely
Constance and Clark contend that the special master
clearly erred in rejecting evidence that Ruth and John had
allowed Bernard to suffer bruising, lacerations, cuts, bite
marks, toenail problems, and improperly fitted shoes while in
their care. Constance testified at trial, with the aid of
photographs and a videotape, that she had alerted DFYS to such
problems when visiting Bernard, but that no action had been
taken. The special master found that [n]one of the marks appears
to a medically untrained eye to be a significant injury or
anything beyond ailments and minor injuries which would be
ordinary in an active toddler. Having reviewed the photographic
evidence, we agree with the special master that these injuries do
not appear to be significant. We hold that the special masters
findings on this point are not clearly erroneous.
2. Constance and Clarks stronger contacts with the
childs biological relatives
Constance and Clark argue that the special master gave
insufficient consideration to their ability to provide Bernard
with access to his other biological relatives. They argue that in
living with them, Bernard would reside with his brother, and that
he would have access to relatives on both his mothers and fathers
sides. Ruth and John point out in reply that in their household
Bernard has already lived with S.G., his half-sister, for two
years. They argue that they too arrange for Bernard to spend
time with his relatives, and that these are simply different
relatives from the ones Constance and Clark know. The record
supports the contention that Constance and Clark can provide
Bernard with access to more of his extended family, especially
relatives from his deceased fathers side. Nonetheless, Ruth and
John can provide adequate exposure to the extended family, and we
agree with the superior court that Bernards daily care is even
more important than his contacts with his extended family.
Constance and Clark also submit that because the
extended family placement preference of the ICWA25 is meant to
reverse a pattern of breaking up Indian families and to promote
the stability of Indian families,26 this factor should be given no
inconsiderable weight. Ruth and John argue that they themselves
are part of Bernards extended family and that placement with them
does not break up an Indian family any more than has already
occurred. In the previous case between these parties, we held
that Ruth provides a sufficiently close family relationship to
meet the purpose of the ICWA extended family placement
preference,27 and that Constance and Clark had not shown that they
have any greater claim under Yupik tradition to the ICWA extended
family placement preference by virtue of being more closely
related by blood.28 They produced no new evidence on Yupik
tradition in the current trial. Accordingly, we hold that the
trial court did not abuse its discretion on this point.
3. The preference of the childs biological parents
1. Constance and Clark also contend that the trial court
attached insufficient weight to the placement preference of the
biological parents. They argue that parental preference is an
ICWA factor that has previously been given effect by this court
in Adoption of N.P.S.29 and In re Adoption of F.H.,30 but that in
those cases the parental preference resulted in the placement of
Indian children with non-Indian parents, which they argue cannot
be consistent with the purposes of the ICWA. Ruth and John
contend that the ICWA states that parental preference is to be
considered [w]here appropriate31 and that Lindas preference was
properly given less weight because Linda was a demonstrably
incompetent parent with little history of genuine concern for her
childrens care. A DFYS investigator had testified that Linda had
really put [her older] children into emotional turmoil when she
told them that she would regain their custody and take them away
from their foster parents. This allegedly occurred when
Constance and Clark allowed Linda to have unauthorized contact
with the children. Constance and Clark reply that we have
previously held that the fact of the preference is more
significant than the reasoning behind it under the ICWA,32 and
that it is factually unfounded to say that they will give Linda
improper access to the children in the future.
We agree with the special master that in this case,
parental preference does not shed light on what the best living
situation for Bernard is and should not overcome the importance
of continuity of care. Moreover, Constance and Clarks argument
about a policy of ratifying the parental preference only for non-
Indian placements is irrelevant to this case, because both
parties include a partner who shares Bernards tribal affiliation.
We find no abuse of discretion on this point.
4. The comparative stability of the parties
1. Constance and Clark also make a number of arguments
addressing the stability of the two households, which is a best-
interest factor under McDanold v. McDanold.33 They first contend
that their household is more stable because both of them are
retired,34 whereas John travels frequently on business.35
Constance and Clark also contend that they have no alcohol
problems,36 whereas in the past John has admitted to alcohol
dependency. Constance and Clark also argue that they have never
given up prior children for adoption, whereas both Ruth and John
have. Ruth and John contend that these allegations center on
problems that are decades old and completely overcome. The
special master found that the adoptions of Ruths and Johns
respective children were organized responsibly and do not reflect
negatively on their judgment, in distinction to Constance and
Clarks return of J.G. to DFYS. We agree that the placements for
adoption occurred years ago and are therefore of little value as
evidence of the present stability of the household under
McDanold. Likewise, both couples Constance and Clark, Ruth and
John have been certified as foster parents and therefore have
been cleared of present-day substance abuse problems. The
special master did not err in finding that Ruth and John provide
a stable household.
To the limited extent that Constance and Clark have
been able to prove any of the above four factors (alleged
inability to supervise the child safely, the grandparents better
access to the childs extended family, parental preference, and
relative stability), these factors do not outweigh the superior
courts finding that Bernards emotional health would be best
served by continuing his placement with Ruth and John. We hold
that there was no abuse of discretion and no clear error.
V. CONCLUSION
Because the superior court did not abuse its discretion
in weighing best-interest factors or clearly err in finding that
Bernards interests were best served by granting the adoption
petition of his foster parents, we AFFIRM the order of the
superior court.
_______________________________
1 We use pseudonyms to protect the privacy of family
members involved in this case.
2 14 P.3d 946 (Alaska 2000).
3 Id. at 948-49; C.L. & C.L. v. P.C.S., 17 P.3d 769, 771
(Alaska 2001).
4 17 P.3d at 771.
5 This incident was used as a partial basis for our
finding that Constance and Clark were not a suitable alternative
placement for J.G. in L.G. 14 P.3d at 955.
6 This evidence was part of the reason we affirmed the
superior courts finding that the grandparents do not understand
the impact on J.G. of exposure to . . . alcohol consumption in
the adoption case regarding J.G. and S.G. C.L., 17 P.3d at 774-
75.
7 This evidence was part of the reason we affirmed the
superior courts finding that the grandparents do not understand
the impact on J.G. of exposure to her mother in the adoption case
regarding J.G. and S.G. Id.
8 25 U.S.C.A. 1903(4) (West 2001).
9 ICWA recognizes a placement preference for members of
an Indian childs extended family. 25 U.S.C.A. 1915(a)(1) (West
2001).
10 17 P.3d at 777.
11 C.L., 17 P.3d at 777.
12 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000).
13 West v. West, 21 P.3d 838, 841 (Alaska 2001).
14 In re J.J.J., 718 P.2d 948, 957 (Alaska 1986).
15 West, 21 P.3d at 841.
16 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
17 See, e.g., In re W.E.G. & J.R.G., 710 P.2d 410, 417
(Alaska 1985).
18 In re A.S., 740 P.2d 432, 435-36 (Alaska 1987).
19 See W.E.G., 710 P.2d at 416-17 (suggesting that in
adoption contest between foster parents and grandparents, trial
court should consider length and quality of time and bonding
experienced by children with each petitioner).
20 Adoption of N.P.S., 868 P.2d 934, 938 (Alaska 1994).
21 A.S., 740 P.2d at 435-36.
22 See AS 47.10.088(d)(1) (providing that DFYS shall cease
efforts to reunite a child in need of aid with its parents if the
child has been in foster care for fifteen of last twenty-two
months) (reflecting Adoption and Safe Families Act of 1997
103(a)(3), 42 U.S.C.A. 675(5)(E) (Supp. 2003)).
23 AS 47.05.065(5) (finding by legislature that children
under six years of age who have been removed from their homes
must be placed in permanent homes expeditiously because of risks
of emotional damage stemming from failure to attach to adult
caregiver).
24 See, e.g., J.H. v. State, Dept of Health & Soc. Servs.,
30 P.3d 79, 87 n.14 (Alaska 2001); M.W. v. State, Dept of Health
& Soc. Servs., 20 P.3d 1141, 1147 (Alaska 2001); L.G. v. State,
Dept of Health & Soc. Servs., 14 P.3d 946, 951 (Alaska 2000).
25 25 U.S.C.A. 1915(a) (West 2001).
26 25 U.S.C.A. 1901(4)-(5), 1902 (West 2001).
27 C.L. & C.L. v. P.C.S., 17 P.3d 769, 777 (Alaska 2001).
28 Id.
29 868 P.2d 934, 937 (Alaska 1994) (honoring parental
preference for placement of child with mothers non-Indian
partner).
30 851 P.2d 1361, 1364-65 (Alaska 1993) (honoring parental
preference for placement of child with non-Indian foster
parents).
31 25 U.S.C.A. 1915(c) (West 2001).
32 N.P.S., 868 P.2d at 937 n.3.
33 718 P.2d 467, 470 (Alaska 1986) (explaining that
parents past conduct may be considered where it sheds light on
current stability and parenting ability).
34 Constance has a fur and crafts business, which she runs
out of her home. Clark is a retired plumber.
35 John is a biologist with the U.S. Fish and Wildlife
Service.
36 Both Constance and Clark have convictions for alcohol-
related offenses dating from 1987 to 1990, including two DWIs for
Clark and an alcohol-related arrest of Constance for urinating in
public. Constance and Clark underwent substance abuse
evaluations in 2000 and no concerns were expressed.
