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Alden H. v. State, Office of Children's Services (03/04/2005) sp-5874
Alden H. v. State, Office of Children's Services (03/04/2005) sp-5874
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
ALDEN H., SR., )
) Supreme Court No. S-11450
Appellant, )
) Superior Court No.
v. ) 3AN-98-00357/358 CP
)
STATE OF ALASKA, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) [No. 5874 - March 4, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Chad W. Holt, Holt & Brockberg,
LLC, Anchorage, for Appellant. Michael G.
Hotchkin, Assistant Attorney General,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee State of
Alaska. Leslie Dickson, Assistant Public
Advocate, Anchorage, for Appellee Guardian ad
Litem.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Alden H. is the father of two severely troubled boys,
Alden, Jr. and Neil.1 In 2000 Alden voluntarily relinquished his
parental rights.2 He is now attempting to withdraw his
relinquishment and re-enter his sons lives. Alden moved before
the superior court for a hearing to review his relinquishment and
for an order to enforce a provision of the relinquishment
purporting to grant him visitation rights. The superior court
denied both motions and Alden appeals. Finding no error, we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Alden H. is the father of Alden H., Jr. and Neil H.
The boys mother is Sara B. She is not a party to this action.
Alden and Sara lived together in Anchorage with Alden Jr., Neil,
and Saras two older children by a different father, Zander and
Nancy. The Alaska Department of Health and Social Services3 had
received reports of substance abuse, neglect, and domestic
violence but had lost track of the family because of frequent
moves. On June 4, 1998 the Anchorage Police Department responded
to a report that a child had been left unattended in a stroller
all day. The police discovered Neil in a stroller in the
driveway of the familys home, and found Sara inside, asleep, and
smelling of alcohol.
After this incident, the family fled to a Fairbanks
campground. On June 11, 1998 Zander ran to the police recounting
a variety of abuses including being forced to drink alcohol and
ingest hallucinogenic mushrooms, and physical abuse by Alden. At
the
time, Zander was reportedly filthy and suffering from
bronchitis. All four children were taken into state custody.
Like Zander, the others were filthy, with dirt in their hair,
ears, eyes, mouth and genital areas. Neil was diagnosed with
conjunctivitis. Nancy later reported that Alden had sexually
abused her. Zander added that Alden had threatened to kill
Zander and Nancy if Nancy ever reported the abuse.
The department developed a family reunification plan
for Alden and Sara. The plan required both parents to work
toward permanent sobriety, receive counseling for anger
management, and attend parenting classes. Neither parent
complied. In 1999 Alden spent ninety days in jail on a domestic
violence charge. After his release, he was arrested on federal
drug charges related to the manufacture of methamphetamines. He
was later convicted and sentenced to seventy months in prison.
In June 2000 the department placed the boys with Aldens
mother, Meg H. The department commenced proceedings to terminate
the parental rights of Alden and Sara in August 2000. On
December 27, 2000, prior to trial, Alden executed a voluntary
relinquishment of his parental rights from federal prison in
California. The relinquishment specified that Alden retained the
right to contact his children subject to the discretion of the
adoptive parents. The relinquishment also stated that the
children would be placed for adoption with Meg, and that if Meg
ever became unable to care for the boys for any reason, the
department would contact Alden, and give him an opportunity to
request the withdrawal of his relinquishment subject to the
approval of the department. Saras parental rights were
involuntarily terminated on January 22, 2001.
The boys were removed from Megs home in October 2001
following reports of abuse. The children were subsequently
separated and placed in therapeutic foster care. Both suffer
from severe emotional and behavioral problems; each has been
through several foster homes. According to therapists who have
treated Alden Jr. and Neil, [v]ery skilled therapeutic foster
parents with additional case manager and activity therapy support
are, at times, taxed to their limit [in] maintaining the boys
adequately. These therapists believe that an appropriate care
giver would need stellar therapeutic parenting skills, saintly
patience, and an extensive working knowledge of developmental
issues of emotionally disturbed children.
Alden was transferred from prison to a halfway house in
Spokane, Washington in February 2002. While incarcerated, he
stopped drinking and taking drugs. He reportedly remains sober.
Alden was released from federal custody in August 2002. As of
May 2003, he planned to marry a woman he had met at the halfway
house. His fianc‚e has four children including a twenty-year-
old daughter with a young child. He currently works as an
independent contractor in the Spokane area. Alden learned that
the boys had been removed from Megs home in April 2002 and
promptly requested the withdrawal of his relinquishment.
B. Proceedings
Alden moved for a hearing to review the order
terminating his parental rights on January 5, 2004. He claimed
that the relinquishment had been conditioned on the permanent
placement of his boys with Meg and that the relinquishment should
be withdrawn because that placement had failed. He also argued
that he had a right to withdraw his relinquishment pursuant to
Rita T. v. State4 because he had overcome his substance abuse
problems and was gainfully employed. On January 12, 2004 he
added a motion to enforce visitation rights he claimed were
contained within the relinquishment agreement. The department
opposed both motions.
Aldens motions were reviewed by William C. Hitchcock,
Standing Master of Anchorage Childrens Court. Neither party
requested oral arguments or an evidentiary hearing before Master
Hitchcock. Briefing was completed on February 25, 2004 and
Master Hitchcock issued his recommendation shortly thereafter.
The master recommended denying both of Aldens motions. He found
that the relinquishment agreement was not conditioned on the
successful placement of the boys with Meg, that Alden had failed
to show good cause for a Rita T. hearing, and that the department
soundly exercised its discretion by refusing to allow Alden to
have contact with his children. Alden objected to Master
Hitchcocks recommendations and asked for a hearing de novo before
the superior court. On March 30, 2004, Superior Court Judge
Peter A. Michalski adopted Master Hitchcocks recommendations as
the order of the court without alterations and without
specifically ruling on Aldens demand for a hearing. Alden
appeals from this decision.
III. STANDARD OF REVIEW
Ordinarily, we review the validity of a relinquishment
de novo.5 However, this issue was raised for the first time on
appeal. Issues not raised in the trial court shall not be
considered on appeal, except for plain error. Plain error exists
where an obvious mistake has been made which creates a high
likelihood that injustice has resulted. 6 We review the superior
courts decision to enforce the relinquishment for plain error.
We review the factual conclusions of a lower court for
clear error.7 We will find clear error if a review of the entire
record in the light most favorable to the party prevailing below
leaves us with a definite and firm conviction that a mistake has
been made. 8
A finding that a party failed to show good cause that a
Rita T. hearing should be held is reviewed for abuse of
discretion.9
We review the superior courts decision to deny de novo
review of the masters report also for abuse of discretion.10 We
will find an abuse of discretion only if, based on a review of
the whole record, we are left with a definite and firm conviction
that a mistake has been made.11
IV. DISCUSSION
A. Enforcing the Relinquishment Was Not Plain Error.
Alden relinquished his parental rights subject to AS
25.23.180(b). We have recognized that the termination of
parental rights did not exist at common law and that no
termination is valid without statutory authorization.12 In In re
Adoption of Keith M.W.,13 we noted that AS 25.23.180(b) authorizes
only the complete relinquishment of parental rights.14 The
statute does not authorize conditional or partial
relinquishments.15
Alden argues that his voluntary relinquishment was
conditional because it required the adoptive placement of his
boys specifically with his mother, or that it was partial because
he reserved a right of contact with his children, or both.
Because conditional and partial relinquishments are not
authorized by AS 25.23.180(b), Alden contends that the
relinquishment was void and that it was error for the superior
court to enforce it. Since Alden did not raise this issue before
the superior court, we review for plain error.16 Plain error
exists where an obvious mistake has been made which creates a
high likelihood that injustice has resulted. 17 Because the
relinquishment was not conditioned on the placement of his
children with his mother, and because the masters finding that
the relinquishment was not conditioned on the provision of
visitation rights was not a mistake (much less an obvious
mistake), we affirm the superior court.
1. The relinquishment agreement was not conditioned
on placement of the children with Aldens mother,
Meg H.
Master Hitchcock found nothing which supports [Aldens]
assertion that failure of the placement gave rise to an automatic
right to withdraw the relinquishment and thus vacate the
termination order. We agree. The relinquishment contained no
language specifying that the relinquishment is void if the
placement with Meg H. should fail.18 The relinquishment actually
stated that the placement with Meg H. itself was conditional.
According to the agreement, the department must receive a
positive home study . . . before the Department can consent to
adoption of [Alden Jr.] and [Neil] by [Meg H.] The agreement
also allowed Alden to request the withdrawal of his
relinquishment if the placement with Meg H. failed, but it
explicitly noted that Alden could withdraw his relinquishment
only if the department agreed to allow it. The relinquishment
was therefore not conditioned on the successful placement of the
children for adoption with Meg H.
2. Enforcing the relinquishment in light of language
purporting to preserve a right of contact was not
plain error.
Alden also argues that the relinquishment is void
because it retained a right of contact. We disagree for two
reasons. First, Master Hitchcock concluded that the
relinquishment agreement did not preserve a right of contact.
This interpretation is not obviously mistaken. Second, even
assuming that the relinquishment agreement did retain Aldens
right of contact, Alden cannot be heard now to claim that it was
an obvious mistake, for in the superior court he adamantly
insisted that the court enforce the agreement.
i. Master Hitchcock did not make an obvious
mistake by interpreting the relinquishment
agreement as not preserving a right of
contact.
Master Hitchcock concluded that the relinquishment
agreement did not preserve Aldens right to contact his children.
Because Master Hitchcock was not obviously mistaken in his
interpretation of the relinquishment, there is no plain error.
The relinquishment agreement stated generally that
Alden retained certain rights:
I give this relinquishment in accordance with
AS 25.23.180. Subject only to those rights
specifically retained as set forth in this
relinquishment, I voluntarily relinquish to
the Department of Health and Social Services
. . . any and all rights and responsibilities
of a parent with respect to these children.
(Emphasis added.) The right of contact was the only retained
right specifically mentioned by the relinquishment.
[Paragraph] 7. I retain the right of contact
with my children to be arranged in advance
with the adoptive parents, in their sole
discretion based on the best interests of the
children. Such contact includes visitation,
writing letters, and the exchange of
photographs and gifts.
Under this provision, Aldens right of contact with his children
is subject to the sole discretion of the adoptive parents in
determining the childrens best interests. It is, therefore,
quite circumscribed. Master Hitchcock accordingly determined
that this paragraph did not actually preserve a right of contact.
He found that the relinquishment was not conditioned on the
provision of visitation rights. Paragraph 7 of the document
provides a right of contact but conditions it on the discretion
of the adoptive parents based on the best interests of the
children. Because this interpretation was not mistaken (much
less obviously mistaken), we decline to find the enforcement of
the relinquishment to be plain error.19
ii. Even assuming that the relinquishment
improperly purported to preserve a right of
contact, the superior court did not commit
plain error in enforcing the relinquishment.
Assuming arguendo that the relinquishment agreement
improperly purported to preserve a right of contact, enforcing
the relinquishment was not an obvious mistake because Alden
demanded that Master Hitchcock and the superior court enforce the
relinquishment agreement. On appeal, Alden claims that the
superior court made an obvious mistake by not recognizing that
Alden was asking for the enforcement of a void agreement. This
position is not tenable. According to Alden, the superior courts
purported mistake consisted of failing to void a conditional
relinquishment sua sponte even though Alden himself demanded
enforcement below. There is no obvious mistake under these
circumstances.20
B. The Masters Finding that Evidence Supported the
Departments Decision To Deny Visitation Was Not Clearly
Erroneous.
Alden has not been allowed any contact with his
children since they were removed from Megs home in October 2001.
Alden argued below that he should be allowed reasonable
visitation with his children in accordance with the terms of the
relinquishment agreement. Master Hitchcock upheld the
departments decision to deny visitation. He ruled that the
Department is soundly exercising its discretion, based on the
expert opinion of the childrens therapists, in presently
restricting contact between [Alden] and the children.
On appeal, Alden asserts that Master Hitchcocks finding
is clearly erroneous because [t]here is no evidence which
supports the continued denial of [Aldens] right to contact.
Because the record contains ample evidence supporting Masters
Hitchcocks finding, we affirm.
Master Hitchcock reviewed various documents submitted
by the department, including the recommendations of the childrens
therapists and a psychological evaluation of Alden. (Master
Hitchcock also reviewed letters and certificates submitted by
Alden.) A review of this evidence does not leave us with the
firm conviction that Master Hitchcock was mistaken. Contrary to
Aldens assertion that no evidence supports the denial of
visitation, the documentary evidence shows clearly that contact
is not currently in the best interests of the children.
Moreover, Alden has not submitted any evidence demonstrating that
visitation serves the best interests of the children.
Master Hitchcock reviewed a December 1, 2003 letter and
a February 19, 2004 affidavit from an outpatient therapist who
had treated Alden Jr. since May 2001. In the letter, the
therapist wrote: [Alden Jr.] should not have any contact with his
biological father at this time. Any contact would include
telephone and written correspondence as well as face to face.
The therapist listed several reasons why there should be no
contact:
Contact at this time could destabilize [Alden
Jr.] . . . [Alden Jr.] would have increased
difficulty with concentration, attention,
impulsivity, and oppositional behavior . . .
[Alden Jr.] would use the concept of a future
relationship with his biological father as a
reason to defy adult authority figures and
act out with negative behavior towards
others. In the past when [Alden Jr.] acts
out he is frequently a danger to himself and
others.
He concluded that [Alden Jr.] should be successfully placed in a
permanent placement for a minimum of one year prior to
considering introducing the relationship of his biological
father. He repeated these conclusions in his affidavit.
The department also submitted a February 19, 2004
affidavit from a therapist who had treated Neil for the past
three years. The affidavit described Neil as a severely
emotionally disturbed child who is very aggressive, oppositional
and defiant, has ADHD, pervasive development delays, enuresis,
encopresis and attachment disorder. The therapist believed that
Neil should not have any contact with his biological father. In
her opinion, [c]ontact with his biological father will result in
increased difficulties maintaining [Neil] in his home as [Neil]
would become increasingly aggressive, defiant and oppositional,
his enuresis and encopresis will increase tremendously.
Moreover, before there is any consideration of introducing Neil
to his father, [Neil] needs to show signs of stability and
progress with his behavioral issues . . . .
Both therapists described the results of reintroducing
the children to their father in a joint letter. The letter
stated that [i]t is difficult to evaluate the possible father-son
relationship that the boys might develop in the future without
having any credible evaluations of [Alden, Sr.]. They warned,
however, that [a]ny contact, and certainly any inappropriate
contact, that the boys might have with their biological father
could cause them to regress significantly . . . . Hence,
beginning a relationship with him at this time . . . is only
going to make the boys lives more confusing and problematic.
Master Hitchcock also reviewed documents submitted by
Alden in support of his motion to enforce his visitation rights.
This evidence consisted of a letter from an outpatient clinic
that had treated Alden for his drug problems following his
release from federal prison, a letter from a halfway house where
Alden had stayed after release from prison, various occupational
and religious certificates, and a letter from Aldens probation
officer. These documents supported Aldens contention that he is
sober and working. They did not, however, provide any evidence
of his childrens needs or any evidence that contact with Alden
serves their best interests.
Because the record contained substantial evidence that
even minimal contact between Alden and his children would have
negative consequences, and because Alden submitted no evidence
that contact would serve their best interests, there is no hint
of clear error on this issue.
C. Alden Is Not Entitled to Relief Under Rita T. v. State.21
Rita T. v. State announced that a parent whose parental
rights have been involuntarily terminated is entitled to a
hearing to review the termination order, upon a showing that the
parent has overcome the problems that lead to termination and is
now capable of properly caring for the child.22 This entitlement
promotes the purposes of title 47 of the Alaska Statutes by
enlarging the potential supply of permanent care givers and
reuniting families.23 It was based on the proposition that
allowing a parent who is capable of providing proper care to
regain her parental rights is preferable to allowing a child who
remains a ward of the court . . . to spend his or her entire
minority in a succession of foster homes.24
We have never decided whether the right announced in
Rita T. is available to parents who voluntarily relinquish their
parental rights pursuant to AS 25.23.180 and we need not address
this issue here. Even assuming that Alden could seek relief
under Rita T., the superior court did not abuse its discretion by
holding that Alden failed to show good cause.
Good cause for a Rita T. hearing can be established if
the parents showed that it would be in the best interests of the
child to resume living with them because they have sufficiently
rehabilitated themselves so that they can provide proper guidance
and care for the child.25 A parent can provide proper guidance
and care if he can provide the care and guidance that will serve
the moral, emotional, mental and physical welfare of the
child[.] 26
Master Hitchcock concluded that Alden had not shown
good cause:
Looking at the factual basis for the
adjudication of these Children in Need of
Aid, and the subsequent treatment efforts of
[Alden], I find the evidence does not support
a finding that he has sufficiently
rehabilitated in order to reassume custody of
these children. I base that conclusion in
large part upon the special needs of the
children and the expert opinions of their
therapists. I do not find that good cause
has been shown to warrant setting aside the
relinquishment . . . .
Alden contends that the superior court abused its
discretion because Master Hitchcocks finding relied on the
reports of the childrens therapists, who had never met Alden.
Accordingly, the therapists recommendations relied only on their
contact with the children and their knowledge of the childrens
history.
Master Hitchcocks partial reliance on the opinions of
the childrens therapists was wholly appropriate.27 Aldens ability
to adequately care for his children depends not only on his
rehabilitation but also on the needs of his children. Rita T.
does not deem a parent who has rehabilitated himself
automatically capable of caring for his children. Rita T.
requires a parent to have the capability of providing for the
individual needs of the child. Good cause exists only for those
parents who can now provide the care and guidance that will serve
the moral, emotional, mental and physical welfare of the child .
. . . 28 Consequently it is not only appropriate but necessary
for a court to consider the needs of the child who is the subject
of a Rita T. motion. To do that, the court properly considered
evidence from the childrens therapists.
Master Hitchcocks finding that Alden had not shown good
cause to believe that he was capable of providing for the needs
of his children was well supported by the record. According to
the reports submitted by the childrens therapists, Aldens
children have very demanding needs: Very skilled therapeutic
foster parents with additional case manager and activity therapy
support are, at times, taxed to their limit [in] maintaining the
boys adequately. The therapists opined that a care giver for the
children should have stellar therapeutic parenting skills,
saintly patience, and an extensive working knowledge of
developmental issues of emotionally disturbed children.
The psychological evaluation of Alden conducted by Dr.
Thomas McKnight suggests that Aldens parenting abilities do not
approach these requirements. Dr. McKnight opined that Alden most
likely has limited to no insight into the needs of his children
or the realities of a parent-child relationship. Additionally,
he concluded that Aldens desire to assume parent responsibility
for his boys is admirable but there is no reasonable
psychological probability he can provide the environment,
support, and stability these children need . . . .
Even if Aldens children did not have special needs,
Master Hitchcocks decision would not have been an abuse of
discretion because the evidence offered by Alden to show that he
had overcome the problems that led the department to institute
termination proceedings was weak. The departments original case
plan for family reunification required that Alden (1) complete an
anger management assessment and follow all recommendations, (2)
attend on an ongoing basis AA/NA/CA meetings, (3) complete a
state certified substance abuse program, and (4) enter and
complete parenting class. Alden submitted evidence to Master
Hitchcock indicating that he had completed a substance abuse
program. The evidence that he complied with the other criteria
was flimsy.
The only evidence in the record that Alden attended
twelve-step programs, and the main evidence that he addressed his
anger management issues29 or attended parenting classes,30 is found
in a May 10, 2002 letter from James Barrett.31 Master Hitchcock
had good reasons to question Barretts credibility. In
preparation for his psychological evaluation of Alden, Dr.
McKnight reviewed a psychological report of Alden prepared by
Barrett. Dr. McKnight noted in his report that Barrett was
unqualified to conduct a psychological evaluation and may have
done so in violation of Washington law. Additionally, Dr.
McKnight determined that Barrett performed the evaluation
incompetently. Consequently, it was reasonable for Master
Hitchcock to discount the credibility of Barretts letter.
Even if Barrett was credible, the letter was scant
evidence of Aldens rehabilitation. It asserted that he had
completed anger management classes while incarcerated, attended
two twelve-step meetings per week, and that one of the primary
goals of Aldens 500 hour Drug Abuse Program was to improve
parenting skills. It did not discuss the scope of Aldens anger
management classes or the extent to which the Drug Abuse Program
focused on parenting skills. Additionally, it only reflected
Aldens participation in twelve-step programs up until May 2002.
There was no indication in the record whether Alden continued to
seek treatment after this date. We are not firmly convinced that
Master Hitchcock was mistaken based on this evidence.
Because the record demonstrated that Alden did not have
the ability to properly care for the special needs of his
children, and because the evidence offered by Alden to prove his
rehabilitation was weak, the superior court did not abuse its
discretion in denying a hearing under Rita T.
D. The Superior Court Did Not Abuse Its Discretion in
Failing To Hold a De Novo Hearing.
Alden claims that the superior court erred in denying
him a hearing de novo to review Master Hitchcocks recommendation
that the superior court deny Aldens motion for visitation. Alden
first requested a hearing in his objections to Master Hitchcocks
report pursuant to Alaska Child in Need of Aid (CINA) Rule 4(f),
which states that the superior court may permit oral argument,
order the taking of further evidence, or grant a hearing de novo
in response to objections to a masters report or recommendations.
By specifying that a superior court may permit hearings or oral
arguments, CINA Rule 4(f)(1) invests a superior court with
discretion to grant or deny such a proceeding.
We conclude that the superior court did not abuse its
discretion in denying a hearing. In his objection to Master
Hitchcocks report, Alden argued that he should have received an
evidentiary hearing in order to present evidence and cross
examine adverse parties and witnesses. Alden failed to mention,
however, what new evidence he intended to present at the hearing
or explain why such evidence was absent from his submissions to
Master Hitchcock. It is within the superior courts discretion to
deny a hearing requested for the purpose of presenting
unspecified evidence.
Alden also suggested that because he has submitted a
great deal of evidence . . . [h]e should at least be presented
with the opportunity to present this evidence at a hearing. It
is also well within the discretion of the superior court to deny
Alden the opportunity to duplicate an earlier presentation of
evidence.
Lastly, Alden argued that he should have been allowed
to cross-examine witnesses, especially the childrens therapists.
But Alden does not indicate how an opportunity to cross-examine
witnesses would have illuminated the evidence presented. He
repeated his argument that the opinions of the therapists were
not reliable because neither of them had met Alden. We have
already rejected this argument. Moreover, Alden made this
argument in his response to the departments oppositions and
Master Hitchcock was aware of it when he made his findings.
Finally, even if the superior court abused its
discretion, Alden is not entitled to relief because he has not
alleged any prejudice resulting from the superior courts denial
of a hearing.32 A party on appeal who alleges that oral argument
was improperly denied must show both that the denial was in error
and that the error caused substantial prejudice.33 Neither in
support of his request for a hearing, nor in this appeal, has
Alden advanced one argument that he was unable to make before the
master or list any evidence that he could not present. He argued
only that he deserved to fully present the evidence he had
already provided at a hearing and that he should have the
opportunity to cross-examine the witnesses. Because Alden has
not alleged any prejudice, any error by the superior court in
denying a hearing is not reversible.
V. CONCLUSION
Because enforcing the relinquishment was not plain
error, because the department did not abuse its discretion in
denying Alden contact with his children, because the superior
court did not abuse its discretion in denying a Rita T. hearing,
and because the superior court did not abuse its discretion in
denying a de novo hearing, we AFFIRM the decision of the superior
court.
_______________________________
1 Pseudonyms have been used for all family members
throughout this opinion in order to protect their identities.
2 Alden voluntarily relinquished his parental rights
pursuant to AS 25.23.180(b): All rights of a parent with
reference to a child, including the right to receive notice of a
hearing on a petition for adoption, may be relinquished and the
relationship of parent and child terminated by a writing . . . .
3 Appellee Office of Childrens Services is the successor
to the Division of Family and Youth Services in the Alaska
Department of Health and Social Services. It is referred to in
this opinion as the department.
4 623 P.2d 344 (Alaska 1981).
5 In re Adoption of Keith M.W., 79 P.3d 623, 625 (Alaska
2003).
6 D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001)
(quoting Broeckel v. State, Dept of Corrections, 941 P.2d 893,
897 (Alaska 1997)).
7 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004).
8 Id. (quoting A.B. v. State, Dept of Health & Soc.
Servs., 7 P.3d 946, 950 (Alaska 2000)).
9 C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001) (finding
of good cause to deviate from Indian Child Welfare Act (ICWA)
placement preferences is reviewed for abuse of discretion).
10 Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
11 Stinson v. Holder, 996 P.2d 1238, 1242 (Alaska 2000).
12 Perry v. Newkirk, 871 P.2d 1150, 1153 (Alaska 1994)
(citing Stephen B. Presser, The Historical Background of the
American Law of Adoption, 11 J. Fam. L. 443 (1972)); see also
S.J. v. L.T., 727 P.2d 789, 797 (Alaska 1986).
13 79 P.3d 623 (Alaska 2003).
14 Id. at 627.
15 Id.
16 D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001). Alden
concedes that the plain error standard applies.
17 Id. (quoting Broeckel v. State, Dept of Corrections,
941 P.2d 893, 897 (Alaska 1997)).
18 The relinquishment deemed conditional in Keith M.W.
contained such language: If the adoption [by the Wilsons] is not
completed, I understand that this relinquishment will be voided.
79 P.3d at 627.
19 Master Hitchcock did not address whether the
relinquishment merely expressed Aldens desire that any future
adoption decree include a visitation provision. Nor do we.
Because superior courts are afforded discretion to fashion open
adoption decrees, AS 25.23.130(c), Matter of A.F.M., 960 P.2d
602, 605-06 (Alaska 1998), a natural parent is entitled to
request the inclusion of visitation rights in a future decree.
Alaskas general prohibition on conditional relinquishments
forbids, however, the conditioning of a voluntary relinquishment
of parental rights on the eventual inclusion of such visitation
rights.
20 See Barrett v. State, 772 P.2d 559, 568-69 n.10 (Alaska
App. 1989) (discussing doctrine of invited error: party that
requested instruction not entitled to obtain reversal based on
giving of instruction).
21 623 P.2d 344 (Alaska 1981). The departments concern
that Rita T. reflects an anachronistic emphasis on family
reunification is misplaced. Rita T. does not privilege a parents
desire to regain custody over the best interests of the child.
Entitlement to a Rita T. hearing requires a parent to show both
that she is rehabilitated and that she is currently capable of
providing the care and guidance that will serve the moral,
emotional, mental and physical welfare of the child[.] Id. at
347 (quoting AS 47.05.060).
22 Id. at 347.
23 Id.
24 Id.
25 Id.
26 Id. (quoting AS 47.05.060).
27 Because Master Hitchcock reviewed evidence both of
Aldens rehabilitation and parenting capabilities and the special
needs of his children, we do not decide whether a court would be
justified in relying solely upon evidence provided by a childs
therapist.
28 Rita T., 623 P.2d at 347.
29 Alden also contends that notes from a telephone
conversation with the case worker for his children, Heather
Rough, constituted evidence that he completed anger management
classes. The notes read: 4/23/02 TCT [Alden H] - 6:30 pm . . .
Released now, in halfway house . . . 500 in patient program / 40
hr drug class / Anger mngmt. Currently checking into parenting
classes. April 19th 1999 clean/sober. It is not at all clear
from these notes that Heather Rough was intending to record that
Alden had told her that he had completed anger management
classes. Moreover, even if it was clear that Alden communicated
to Rough that he had done so, this fact does not establish that
Alden actually completed anger management classes.
30 Roughs notes also mention that Alden was Currently
checking into parenting classes. This implies that he had not
completed any parenting classes in prison.
31 Associate Director of the New Directions Outpatient
Clinic, a substance abuse and mental health clinic in Spokane,
Washington.
32 Bennett v. Hedglin, 995 P.2d 668, 674 (Alaska 2000).
33 Id. (citing Cleary Diving Servs., Inc. v. Thomas, Head
& Greisen, 688 P.2d 940, 942 (Alaska 1984)).
