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Frank E. v. State (9/26/2003) sp-5741
Frank E. v. State (9/26/2003) sp-5741
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
FRANK E., )
) Supreme Court No. S-10707
Appellant, )
) Superior Court No.
v. ) 3PA-00-108/109/110 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION ) [No. 5741 - September 26,
2003]
OF FAMILY & YOUTH SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: J. Randall Luffberry, Palmer,
for Appellant. Michael G. Hotchkin,
Assistant Attorney General, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee. Erica Kracker, Kracker Law
Office, Palmer, Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
MATTHEWS, Justice, concurring.
I. INTRODUCTION
The superior court terminated a fathers parental
rights. The father argues that the court erred in (1) finding
that the state had made reasonable efforts to reunify him with
his children and (2) finding that termination served the best
interests of his children. Because the superior court did not
err in finding that the state made reasonable reunification
efforts and in considering the best interests of the children, we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Frank E.1 is the father of the three children involved
in this case: daughter Beth E., born in 1995; son Frank E. Jr.,
born in 1997; and daughter Brianna E., born in 1999. Frank and
his wife Ann E.2 moved to Alaska in 1997 with Beth, Frank Jr.,
Brianna, and Zale, Franks son from a previous marriage.
In November 2000 Frank and Ann were arrested for
operating a methamphetamine lab, and Frank pled no contest to
misconduct involving a controlled substance in the fourth degree
for possession of methamphetamine. He was sentenced to four
years, with nineteen months to serve.
Following the arrest, the state took custody of the
children at issue in this appeal, while Zale went to live with
his biological mother. Shortly thereafter, Beth, Frank Jr., and
Brianna began living with Diane P., who is Franks mother. Diane
has already adopted Cathy P., another of Franks children, after
Franks parental rights to her were terminated. Diane will adopt
Beth, Frank Jr., and Brianna if Franks parental rights are
terminated. Shortly after Franks incarceration the state created
a case plan for him which focused on substance abuse treatment,
parenting classes, and family violence classes that could only be
taken after his release from incarceration. The original case
plan did not include any reference to programs available at the
prison at which Frank was housed, but Frank took advantage of
some of the anger management classes, parenting classes, and
Alcoholics Anonymous/Narcotics Anonymous meetings available at
the prison.
B. Proceedings
On February 27, 2001 the state filed a petition to
terminate Franks parental rights to Beth, Frank Jr., and Brianna.
Frank stipulated that the children were children in need of aid
but contested the termination of his parental rights. After
proceeding with part of the termination trial, Superior Court
Judge Eric Smith issued an order on June 6, 2001 continuing the
trial until after Franks scheduled release from prison so that
Frank would have an opportunity to resolve his problems and get
his children back by completing his case plan.
Frank was scheduled to be released from prison in
November 2001, but was not released because he was indicted for
sexual abuse of his daughters Cathy and Beth. This made it
impossible for him to comply with the case plan within the given
time. Following Franks indictment, the state revised his case
plan to include more treatment options during his time in prison.
Frank was convicted of sexual abuse of Cathy and attempted sexual
abuse of Beth and sentenced to fourteen years, with twelve years
to serve. His sentence includes ten years of probation, one
condition of which is that he have no contact with persons under
the age of eighteen without the written permission of his
probation officer. He will be eligible for release in November
2009, at which point his children would be fourteen, twelve, and
ten years old. Frank appealed his conviction on July 18, 2002;
at this time the parties are still awaiting the transcript from
his trial.
On July 17, 2002 the superior court terminated Franks
parental rights to Beth, Frank Jr., and Brianna. The superior
court based its decision on two independent grounds for
termination, AS 47.10.080(o)3 and 47.10.088.4 Frank appeals the
superior courts findings regarding elements of both grounds for
termination. He appeals the courts decision to proceed with
termination of his parental rights prior to the resolution of his
merit appeal of his conviction for sexual abuse and attempted
sexual abuse. He argues that his conviction and scheduled
incarceration were essential to termination under AS 47.10.080(o)
and formed one of several bases for termination under 47.10.088.
Frank also appeals the termination of his parental rights under
AS 47.10.088, arguing that the superior court erred in finding
that the state made reasonable efforts to reunify him and his
children, and in its consideration of the best interests of his
children.
III. STANDARD OF REVIEW
We apply the clearly erroneous standard when reviewing
the factual findings supporting the termination of a parents
right to raise his or her children.5 We determine that a finding
is clearly erroneous when a review of the entire record leaves us
with a definite and firm conviction that the superior court has
made a mistake. 6 In determining whether a finding is clearly
erroneous, we view the evidence in the light most favorable to
the party prevailing below.7
We review whether the superior courts findings comport
with the requirements of the CINA statutes and rules under the de
novo standard of review.8 Under this standard, we adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.9
IV. DISCUSSION
The superior court terminated Franks parental rights
under both AS 47.10.088 and AS 47.10.080(o), which provide
alternate and independent bases for the termination. In order
for Frank to prevail we must find that termination of his
parental rights was improper under both of these independent
justifications. We decline to reach the question of whether a
parents conviction can be used to terminate his or her parental
rights under AS 47.10.080(o) before an appellate court has
reviewed and affirmed the conviction, because we find that the
superior court did not err by terminating Franks parental rights
under AS 47.10.088.10 We turn now to consideration of that
statute.
Alaska Statute 47.10.088 sets out the procedural steps
involved in a termination of parental rights. It provides in
relevant part that:
(a) Except as provided in AS 47.10.080(o),
the rights and responsibilities of the parent
regarding the child may be terminated for
purposes of freeing a child for adoption or
other permanent placement if the court finds
(1) by clear and convincing evidence
that
(A) the child has been subjected to
conduct or conditions described in AS
47.10.011; and
(B) the parent
(i) has not remedied the
conduct or conditions in the home that place
the child at substantial risk of harm; or
(ii) has failed, within a
reasonable time, to remedy the conduct or
conditions in the home that palace the child
in substantial risk so that returning the
child to the parent would place the child at
substantial risk of physical or mental
injury; and
(2) by preponderance of the evidence
that the department has complied with the
provisions of AS 47.10.086 concerning
reasonable efforts.
. . .
(c) In a proceeding under this chapter
involving termination of the parental right
of a parent, the court shall consider the
best interests of the child.
Frank challenges two aspects of the termination of his parental
rights under AS 47.10.088: whether the state made reasonable
efforts to reunite him and his children in accordance with AS
47.10.088(a)(2), and whether the superior court properly
considered his childrens best interests in accordance with AS
47.10.088(c).
A. The Superior Court Did Not Err in Holding that the State Met
Its Duty To Make Reasonable Efforts To Reunite Frank and his
Children Under AS 47.10.086.
Frank first asserts that the superior courts
termination of his parental rights under AS 47.10.088(a)(2) was
improper because the state failed to prove that it had complied
with the requirements of AS 47.10.086(a), which establishes the
states duty to make reasonable efforts to provide Frank with
services designed to reunify him with his children.11
The superior court found that the requirements of AS
47.10.086 had been met because: (1) Franks conviction for
attempted sexual abuse of Beth made reunification efforts
unnecessary under AS. 47.10.086(c)(1),12 (2) the length and
conditions of Franks sentencing for the sexual assault made
reunification efforts unnecessary under AS 47.10.086(c)(10),13 and
(3) in any event, the state did make reasonable efforts to
reunify Frank and his children. Frank challenges all three of
these bases, any of which is a sufficient basis upon which to
conclude that the state met the reasonable efforts requirement.
Because we find that the state made reasonable efforts to reunify
Frank and his children in accordance with AS 47.10.086(a), we
decline to address Franks claims that the superior court erred by
holding that the state was exempted from its responsibility to
provide such efforts by AS 47.10.086(c)(1) and AS
47.10.086(c)(10).
Frank challenges Judge Smiths finding that the state
met its obligation to make reasonable efforts to reunite the
family. The court found that [e]ven if reasonable efforts were
required, the department made those efforts, at least prior to
[Franks] sexual abuse conviction. It based this conclusion on
its finding that the state prepared a case plan requiring
treatment of the substance abuse and anger management issues.
[Frank] was afforded access to a number of programs while he was
incarcerated. In short, the department did what it could, given
the constraints placed by the fact that [Frank] was incarcerated.
Frank alleges that the state failed to identify services in
accordance with AS 47.10.086(a)(1) and to actively offer those
services in accordance with AS 47.10.086(a)(2), and that this
failure made the superior courts finding that the state made
reasonable efforts toward reunifying Frank and his children
clearly erroneous.14
The states efforts to provide the services mandated by
AS 47.10.086(a) is broken down by the parties into two periods of
time. The first of these is the period between Franks
incarceration for methamphetamine possession following his
November 2000 arrest and his indictment for sexual abuse, as the
indictment postponed his anticipated November 2001 release from
prison for the methamphetamine offense. The second period is the
time between his indictment for sexual abuse and the termination
of his parental rights on July 17, 2002.
Frank contends that Dr. Lindeman, a social worker with
the Department of Health and Social Services, Division of Family
and Youth Services (DFYS), who was responsible for fulfilling the
states duty to identify reunification services in accordance with
AS 47.10.086(a)(1), made little or no effort to identify and
learn about treatment options available in Franks prison prior to
Franks indictment for sexual abuse. He argues that the superior
court erred by finding that the reasonable efforts requirement
had been satisfied, and that its termination of his parental
rights should be reversed because of this failure. Frank next
contends that the state violated AS 47.10.086(a)(2)s requirement
that it actively offer the parent services identified under
subsection (1). Frank argues that AS 47.10.086(a)(2) require[s]
at a minimum that DFYS communicate with the parent in a
meaningful way the specific services available, and inform the
parent how those services will help. Also, DFYS should inform
how the parent can avail himself of those services. In sum,
Frank argues that the state attempted to terminate his parental
rights without giving him an opportunity to remedy the conduct
that caused his children to be in need of aid.
The state fails to respond effectively to Franks
argument that its original case plan was inadequate. It appears
to recognize that it did not identify or actively offer any
programs to Frank during his incarceration for methamphetamine
possession in the form of an organized case plan aimed at
reunifying Frank and his children. Indeed, the original case
plan for the time in which Frank was incarcerated focused
exclusively on services that were available only after his
release from prison in November 2001, whereas the state attempted
to terminate Franks parental rights before his anticipated
November 2001 release by filing its petition to terminate
parental rights on February 27, 2001 and arguing for immediate
termination at the June 2001 termination trial. (In fairness to
the state, its original case plan was formulated at a time when
it was assumed that Frank would be released from prison in less
than two years. His subsequent indictment for sexual abuse
dramatically altered that expectation.) The state argues that it
fulfilled it obligation to identify and actively offer services
to Frank because the prison staff publicized the programs
available to Frank while he was incarcerated.
But the test of whether the state made reasonable
efforts to reunify Frank and his children is not limited to this
particular segment of time. Instead, we examine whether the
states reunification efforts, when looked at in their entirety,
satisfy the requirements of AS 47.10.086(a).
Though the states failure to identify and offer
programs to Frank before the planned termination would generally
violate the states duty under AS 47.10.086, the failure was
harmless in this case because the superior court continued the
June 6, 2001 termination trial specifically to allow Frank an
opportunity to complete his case plan. The post-release portion
of the original case plan fulfilled AS 47.10.086(a)(1) and (2)s
requirement that the state identify and offer reunification
services to Frank, as it called for Frank to enter inpatient
substance abuse treatment, attend Alcoholics Anonymous/Narcotics
Anonymous (AA/NA), and attend parenting classes. Contrary to
Franks suggestion, the requirement that the state offer
reunification services is fulfilled by setting out the types of
services that a parent should avail himself or herself of in a
manner that allows the parent to utilize the services. In this
case, the above services were reasonably offered to Frank because
the case plan identified them in a manner that allowed Frank to
attend appropriate AA/NA meetings and apply to at least two
appropriate inpatient substance abuse treatment programs.
The superior court ensured that Frank would have
meaningful access to these properly identified reunification
services that were offered to Frank by continuing the termination
trial until January 22, 2002 in order to give Frank the
opportunity to complete the post-release services specified in
his case plan. As the superior court stated, the continuance
will give the court concrete information regarding [Franks]
ability and desire to remedy the conditions that placed his
children so badly at risk, and will give him the necessary
reasonable time in which to do so. By providing a reasonable
opportunity for Frank to remedy the behavior that caused his
children to be in need of aid, the continuance cured the states
attempt to terminate Franks parental rights without providing him
with the reasonable efforts to reunify him and his children
mandated by AS 47.10.086(a).15
Finally, we examine the states efforts to identify and
offer programs to Frank after his original case plan was rendered
moot when his incarceration was extended past the originally
scheduled November 2001 release date due to his prosecution for
sexual abuse. Though Frank does not focus on this stage of the
proceedings, several of his arguments attack the sufficiency of
the states efforts to identify and offer services aimed at
reunifying him and his children. He argues that Dr. Lindemans
efforts to identify services after the state filed its petition
to terminate Franks parental rights were perfunctory at best.
The state contends that it properly identified plans available in
prison when it became apparent that Frank would be imprisoned
past his expected November 2001 release date.
Just as we held that the original case plan as extended
by the court offered reunification services in a manner that
allowed Frank to avail himself of them, we hold that the revised
case plan satisfied the requirements of AS 47.10.086(a), after
the original extended case plan was made irrelevant by Franks
continued incarceration.16 Dr. Lindeman testified to the November
2001 changes in the case plan, stating that when it became
evident that the incarceration was going to extend beyond the
November time period, then a treatment plan was drafted up which
was modified to reflect both while he was in incarceration and
while he was out of incarceration. The inclusion of services
available in prison is also seen in the revised case plan, which,
in contrast to previous plans, provided that [w]hile awaiting
release from jail he will participate in any groups offered in
jail in the areas of anger management, substance abuse or
psychotherapy. Furthermore, though Frank argues that termination
was improper because the state did not take a more active role in
recommending specific services, he does not contend that he was
unable to identify the services available in the specified areas,
and in fact demonstrated the ability to do so by taking advantage
of an anger management class during his incarceration. We
therefore hold that the states identification of specific areas
of reunification services is a sufficient basis for the courts
finding that [t]he Department . . . met its burden to prove by a
preponderance of the evidence that it had made the reasonable
efforts required by AS 47.10.086.
B. The Superior Court Did Not Err in Finding that Termination
of Franks Parental Rights Was in the Childrens Best Interests.
A. Alaska Statute 47.10.088(c) mandates that [i]n a proceeding
under this chapter involving termination of the parental right of
a parent, the court shall consider the best interests of the
child. Frank contends that the superior courts finding that
immediate termination of his parental rights was in the childrens
best interests was clearly erroneous because delaying termination
until the resolution of his appeal from his conviction for sexual
abuse and attempted sexual abuse is in the best interests of his
children. Frank claims that his children would not suffer
significant harm from the delay in permanency caused by waiting
for the resolution of his criminal appeal because their placement
with Diane would be unaffected. He also argues that immediate
termination is not in the childrens best interests because they
might be harmed by the possible overturning of their adoption
under Alaska Civil Rule 60(b)(5).17 But these possibilities are
insufficient to overturn the superior courts factual finding, as
we will overturn factual findings only when they are clearly
erroneous.18
The state points to the testimony of Dr. Lindeman, who
testified that the state decided to move for termination because
the necessity to get [the children] stability and to maintain the
consistency of stability was very paramount. Frank responds that
Dr. Lindemans testimony established that the children are already
well-bonded with their grandmother, and that this supports his
contention that little benefit is gained by freeing the children
for adoption because they will maintain the current placement
with his mother regardless of whether they are adopted. After
hearing Dr. Lindemans testimony, the superior court found on June
6, 2001 that the children are quite young and . . . it is in
their best interests to have some finality in their lives with
respect to who actually will be their parent. Though the
superior court did not terminate Franks parental rights at that
time, its finding that an additional delay of seven months will
not so adversely affect the children that the trial, and hence a
decision on the Departments petition, cannot be continued,
recognized that finality at some point was an important aspect of
the childrens best interests.19 This finding that finality was in
the childrens best interests was not clearly erroneous, and a
review of Dr. Lindemans testimony does not leave us with a
definite and firm conviction that the superior court has made a
mistake. 20
The superior court then applied this finding in its
July 17, 2002 order terminating Franks parental rights. The
court found that termination of Franks parental rights was proper
because:
The children are living with their
grandmother, who wishes to adopt them. Their
father will be in jail for most of their
childhood. They need the permanency promised
by adoption, not the uncertainty imposed by a
possible reunion with a father with
significant untreated problems whom they will
not see for years. It is absolutely not in
their interest to have to wait those years
for this matter to be resolved. They need to
be able to get on with their lives;
termination of [Franks] rights and adoption
by their grandmother will enable them to do
so.
While this finding that immediate termination of Franks parental
rights is at least partially based on an assumption that Frank
will not win his criminal appeal, it also clearly recognizes that
a delay of years in providing the children with finality in their
parental situation is not in their best interests. The delay and
resulting harm to the children occasioned by criminal appeals
that will take years is real. This finding of harm is amply
supported in Dr. Lindemans testimony regarding the importance of
providing the children with stability; it is not clearly
erroneous. We hold that the superior court did not err by
finding that termination of Franks parental rights was in the
childrens best interests.
V. CONCLUSION
A. Because the superior court did not err in determining that
the state provided reasonable efforts aimed at reunifying the
father and his children or in finding that termination of the
fathers parental rights was in the best interests of his
children, we AFFIRM the decision of the superior court.
MATTHEWS, Justice, concurring.
When a parent has been sentenced to a prison term that
constitutes much of the minority of the parents children, efforts
to provide social services to the parent that have as their
objective reunification of the parent with the children are
necessarily futile. Because such efforts cannot succeed, it is
difficult to describe them as timely and reasonable, the terms
used in AS 47.10.086(a). But the legislature has recognized this
problem and does not require family reunification efforts when
the incarceration that the parent is scheduled to serve during
the childs minority is significant considering the childs age and
the childs need for an adults care and supervision. AS
47.10.080(o)(1). Similarly, under AS 47.10.086(c)(10) the court
may determine that the reasonable efforts ordinarily required may
be dispensed with under the same circumstances.
Frank is scheduled to be incarcerated for twelve years,
with an additional ten years of probation during which he is not
allowed contact with minors. This obviously qualifies as a
significant period of his childrens minority and the trial court
so found. Because this finding is sustainable, the state was not
required to provide reunification services to Frank and there is
no need to consider whether the services that the state afforded
Frank were reasonable and timely. I would affirm the judgment of
the superior court on this basis.
Frank argues that it is unfair to waive the reasonable
efforts requirement based on AS 47.10.086(c)(10) until his
criminal appeal has been decided. In my opinion this argument
lacks merit. A conviction is a judgment and as such it is final
when it is entered in the superior court. Both direct and
collateral consequences may be imposed based on the conviction
regardless of the pendency of an appeal: We have repeatedly held
that the pendency of an appeal is irrelevant for the purposes of
res judicata and collateral estoppel.1 In A.A. v. State we
recognized the risks of relying on a conviction pending appeal,
but stated that a trial court should have the discretion to
proceed to a termination trial without a final ruling on a
parents criminal appeal.2 This statement applies here.
It is of course possible that Franks criminal
conviction might be reversed on appeal. Speaking statistically,
the chances are slim. According to the clerk of court, about
eighty-two percent of criminal appeals were totally affirmed by
the Alaska Court of Appeals over the last fiscal year. A number
of cases in the opposite eighteen percent column were vacated or
reversed only in part and did not result in a reversal of the
conviction on the most serious charges. Further, when
convictions on major charges are reversed, the charges are
ordinarily retried, and the offender is often reconvicted. For
those rare cases in which an offender is ultimately acquitted of
major charges, Civil Rule 60(b)(5) offers the possibility of
relief from a termination judgment that has been entered based on
the conviction.
As this case illustrates, the appellate process is time
consuming.3 It is now statutory policy that young children be
expeditiously placed into permanent homes.4 If the waiver of
reunification provisions contained in AS 47.10.080(o)(1) and AS
47.10.086(c)(10) are to be given effect consistent with todays
expedited permanent placement policy, a final criminal conviction
in the superior court should be the event that triggers a waiver
rather than a decision of the court of appeals.
Because the superior court properly found that the
reasonable efforts requirement did not apply because of Franks
significant incarceration, and because I agree with the opinion
of the court that the superior court did not err when it found
that the termination was in the best interests of the children, I
agree that the termination judgment should be affirmed.
_______________________________
1 We use pseudonyms to protect the privacy of those
involved.
2 Ann is the mother of the three children involved in
this case. She has already had her parental rights terminated
and is not the subject of this appeal.
3 AS 47.10.080(o) provides:
For purposes of terminating a parents
parental rights under the standards in (c)(3)
of this section, the court may determine that
incarceration of the parent is sufficient
grounds for determining that a child is a
child in need of aid under AS 47.10.011 as a
result of parental conduct and that the
parental rights of the incarcerated parent
should be terminated if the court finds,
based on clear and convincing evidence, that
(1) the period of incarceration that the
parent is scheduled to serve during the
childs minority is significant considering
the childs age and the childs need for an
adults care and supervision;
(2) there is not another parent willing
and able to care for the child; and
(3) the incarcerated parent has failed
to make adequate provisions for care of the
child during the period of incarceration that
will be during the childs minority.
This statute was added in 1996 to respond to the Alaska Supreme
Courts invitation in A.M. v. State of Alaska, 891 P.2d 815
(Alaska 1995) and Nada A. v. State of Alaska, 660 P.2d 436
(Alaska 1983) to create a statutory basis for making
incarceration a factor that can be considered in termination
proceedings concerning children in need of aid. Ch. 89, 1, SLA
1996.
4 AS 47.10.088 generally prescribes the findings that a
court must make before terminating parental rights. The court
must find that a child is in need of aid under AS 47.10.011, that
the parent has not remedied the situation, that the state made
reasonable efforts to provide family support services so as to
avoid out-of-home placement or to safely return the child home
under AS 47.10.086, and that termination is in the best interests
of the child.
5 G.C. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003).
6 Id. at 650-51 (quoting S.H. v. State, Dept of Health &
Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122
(Alaska 2002)).
7 In re J.L.F. & K.W.F., 828 P.2d 166, 170 n.12 (Alaska
1992) overruled on other grounds by In re S.A., 912 P.2d 1235
(Alaska 1996).
8 P.M. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 42 P.3d 1127, 1130 (Alaska 2002).
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 We decline to decide this issue for two reasons:
First, our affirmance of termination under AS 47.10.088 makes
consideration of termination under AS 47.10.080(o) moot. Second,
Frank fails to adequately brief the potential constitutional
issues involved in terminating parental rights based on a
conviction when that conviction has not been affirmed on appeal.
See, e.g., Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737
(Alaska 1999).
11 AS 47.10.086(a) provides, in relevant part, that
the department shall make timely, reasonable
efforts to provide family support services to
the child and to the parents or guardian of
the child that are designed to . . . enable
the safe return of the child to the family
home, when appropriate . . . The departments
duty to make reasonable efforts under this
subsection includes the duty to
(1) identify family support services
that will assist the parent or guardian in
remedying the conduct or conditions in the
home that made the child a child in need of
aid;
(2) actively offer the parent or
guardian, and refer the parent or guardian
to, the services identified under (1) of this
subsection; the department shall refer the
parent or guardian to community-based family
support services whenever community-based
services are available and desired by the
parent or guardian; and
(3) document the departments actions
that are taken under (1) and (2) of this
subsection.
12 AS 47.10.086(c) provides, in relevant part:
The court may determine that reasonable
efforts of the type described in (a) of this
section are not required if the court has
found by a preponderance of the evidence that
(1) the parent or guardian has subjected
the child to circumstances that pose a
substantial risk to the childs health or
safety; these circumstances include
abandonment, sexual abuse, torture, chronic
mental injury, or chronic physical harm[.]
13 AS 47.10.086(c) provides, in relevant part:
The court may determine that reasonable
efforts of the type described in (a) of this
section are not required if the court has
found by a preponderance of the evidence that
. . .
(10) the parent or guardian is
incarcerated and is unavailable to care for
the child during a significant period of the
childs minority, considering the childs age
and need for care by an adult.
14 Frank also contends that the state failed to satisfy AS
47.10.086(a)(3)s mandate to document its actions under AS
47.10.086(a)(1)-(2). But he fails to make any argument, other
than that implied by his argument that the state failed to
identify and offer services to him, concerning the states alleged
failure. Because [w]e will not consider arguments which are
inadequately briefed on appeal, we hold that Frank has waived any
consideration of the adequacy of the states documentation of its
efforts in its case plan. Martinson, 989 P.2d at 737.
15 The parties also dispute the adequacy of visitation in
this case, but visitation was properly discontinued for the
majority of Franks incarceration because of credible allegations
of sexual abuse against Frank and because Diane moved to
California with the children.
16 Frank does not contend that reasonable efforts should
have been provided to him after his convictions for sexual abuse
of Cathy and attempted sexual abuse of Beth.
17 Alaska R. Civ. P. 60(b)(5) provides that a court may
relieve a party from a final judgment when a prior judgment upon
which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective
application. Frank argues that, should his conviction be
overturned on appeal, he would be able to attack the termination
of his parental rights under this rule. We express no opinion as
to whether a termination of parental rights can be overturned
under Rule 60(b)(5).
18 G.C. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003).
19 Franks argument that the superior courts July 17, 2002
termination of his parental rights should be overturned because
it is inconsistent with its June 6, 2001 finding that a seven-
month delay was in the childrens best interests is without merit.
The June 6, 2001 order weighed the ongoing harm caused by a seven-
month delay in determining that Frank should be given an
opportunity to remedy his problems. That finding is not
inconsistent with a later finding that an additional, much more
significant delay, until the resolution of his criminal appeal,
would be harmful.
20 G.C., 67 P.3d at 650-51 (quoting S.H. v. State, Dept of
Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d
1119, 1122 (Alaska 2002)).
1 Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003).
2 982 P.2d 256, 260 (Alaska 1999).
3 We are advised that Franks criminal appeal has not yet
been briefed.
4 AS 47.05.065(5); see S.H. v. State, 42 P.3d 1119, 1125
(Alaska 2002) (The timeliness of a permanent stable placement for
the children is paramount . . . .).
