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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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,

          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

          Before:  Fabe, Chief Justice, Eastaugh,
          Bryner, and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.


          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.


     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,


          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.


          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


          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.


          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-

     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

     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

     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

     30    851 P.2d 1361, 1364-65 (Alaska 1993) (honoring parental
preference   for  placement  of  child  with  non-Indian   foster

     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

     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.