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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeff A.C., Jr. v. Alaska (04/27/2005) sp-5893
This has been WITHDRAWN - see Opinion # 5922
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
JEFF A.C., JR., )
) Supreme Court No. S-11366
Appellant, )
) Superior Court No.
v. ) 3AN-01-94 CP
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 5893 - April 27, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Shelley K. Chaffin, Law Office
of Shelley K. Chaffin, Anchorage, for
Appellant. Mary Ann Lundquist, Assistant
Attorney General, Fairbanks, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
BRYNER, Chief Justice, concurring.
I. INTRODUCTION
A father appeals the termination of his parental
rights for his young daughter. Incarcerated shortly after
impregnating the mother, the father did not know of the childs
existence until about one year later. By that point, the child
had been judged a child in need of aid and the state had taken
numerous steps to terminate the parental rights of the mother and
her boyfriend, the putative father, and to permanently place the
daughter for adoption with her foster parents. A termination
hearing was held regarding both parents about one year after the
father learned of the existence of the child. The mother
voluntarily relinquished her rights, and the court terminated the
fathers rights on the grounds of abandonment and neglect. The
father contends that his procedural due process rights were
violated, and that the superior court erred in its findings that
he had abandoned and/or neglected his daughter, that the state
had made reasonable efforts to reunify, and that the termination
was in the best interests of the daughter. Concluding that the
fathers due process rights were observed by the superior court
and that the courts findings are supported by the record, we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
After his March 2000 release from prison, Jeff C.
resumed a relationship with Melanie G.1 Their relationship was
strained by physical and verbal aggression and heavy drug use.
Jeff engaged in drug distribution and may have been Melanies
supplier of crack cocaine. In early June 2000 Melanie suffered
nausea and her period was late. She testified that she told Jeff
that she thought she was pregnant; Jeff denied this. Shortly
thereafter, she reported a domestic assault incident to the
police. When the police stopped Jeff in his vehicle, they also
discovered scales with drug residue on them. He was accordingly
arrested for violating probation and re-incarcerated from June
15, 2000 to August 15, 2001. After the arrest, Jeff had no
further contact with Melanie.
Melanie continued using cocaine and marijuana during
the pregnancy. On February 14, 2001, Jasmine G. was born cocaine-
positive. In light of her critical medical condition, the state
successfully sought an emergency petition for child-in-need-of-
aid (CINA) adjudication and temporary placement. Jeff, in
prison, was unaware of Jasmines birth or emergency CINA
adjudication. After two weeks in intensive care, Jasmine went
home with a foster family, with whom she has resided her entire
life.
At the birth, Melanie named her then-current boyfriend,
Jimmy D., as the father. Jimmy agreed that he was the father.
However, Melanie mentioned Jeff as another sexual partner. In
the words of a social worker present, Melanie was not the
greatest historian regarding the period of time from when she
became pregnant. The state listed Jimmy as the putative father
and requested that the court order him to be tested for paternity
of Jasmine.2 Because of Jimmys frequent jail transfers and lack
of a stable residence, the paternity testing proved difficult to
obtain.
In May 2001 Melanie told her social worker that Jeff
could be the father, adding that the baby looked like Jeff and
that Jeff was incarcerated in the Palmer Correctional Center.
Accordingly, while continuing to seek Jimmys DNA, the social
worker also requested Jeffs DNA sample. The prison replied that
they had no prisoner named Jeff C. The state was unable to
further pursue Jeff at this point because it had no identifying
information and because there were several persons named Jeff C.
in Alaska. In addition, Melanie was regularly out of contact
with the department, and when she was in contact, she was often
unhelpful.
In July 2001 the superior court accepted a stipulation
by Melanie and Jimmy, listed as the father, and adjudicated
Jasmine as a child in need of aid. The CINA grounds were AS
47.10.011(8) (mental injury) and (10) (intoxicant use), resulting
from Melanies prenatal drug use and both parents history of
assaultive behavior. The parents consented to treatment plans.
In August 2001 Jeff was released from prison.
Concluding that Anchorage had become a bad environment for him,
Jeff moved home to Pittsburgh, Pennsylvania to live with his
father and grandmother. Before his departure, Jeff met with his
social worker to discuss outstanding issues related to his two
daughters from a prior relationship who had been adjudicated as
children in need of aid.3 He was unaware of Jasmine or the
proceeding involving her. Since his return to Pennsylvania, Jeff
claims that he has avoided drugs, assaultive conduct, and other
unlawful behavior.
On November 20 the state received the results of Jimmys
paternity testing, which excluded Jimmy as Jasmines biological
father. Shortly thereafter, a social worker in Jasmines case
happened to notice the existence of a Jeff C. who was involved in
another CINA case.4 The state arranged for a paternity test of
Jeff to be conducted using a DNA sample already collected in the
other case.
In December 2001 the superior court held a disposition
hearing on Jasmine. The resulting order concluded that efforts
to return the child to Melanie or Jimmy who telephonically
appeared in court as the putative father were unsuccessful, that
Melanie had not complied with her case plan and Jimmy was
incarcerated, and that the state should continue with custody.
The court set a permanency hearing for February 13, 2002.
By January 2, 2002 the state received the results of
Jeffs paternity test,
which established him as
the biological father. Jeff learned of this result on January 30
during a telephone conversation with the social worker from his
other case. On February 5 Jeff received in the mail a summons
for Jasmines permanency hearing, with a copy of the earlier
disposition order attached. Jeff failed to respond to the
summons. After the permanency hearing in which only the mother
participated the court concluded that Jasmine remained in need
of aid and that out-of-home permanent placement was in the childs
best interests. Accordingly, the court instructed the state to
proceed to finalize permanency for the child by filing a petition
to terminate parental rights by March 13, 2002. The state filed
this petition on March 12. Jeff received a copy in the mail on
April 1.
Jeff contacted Jasmines social worker in early April.
After numerous messages back and forth, the two finally
communicated on April 23 by which point Jasmine was fourteen
months old. The social worker told Jeff of the birth and of
Jasmines developmental problems and medical needs resulting from
the prenatal substance exposure. Jeff expressed anger that they
had obtained and tested his DNA sample without his knowledge or
permission. He also asked for additional information, including
medical reports. When asked what he planned to do, Jeff
responded that he did not know and that he would call back that
Friday. He did not call back on Friday. The social worker then
contacted Melanie, who gave a highly unfavorable impression of
Jeffs personality and past behavior.5 In later conversations,
Jeff did not express a firm intent or desire to parent Jasmine.
On May 2, the social worker informed Jeff that the case
plan for his other daughters would be adopted in this case.
Jasmines case plan also required Jeff to educate himself on his
childs special needs and requirement for specialized care
consulting with the social worker and his childs therapists. The
case plan had concurrent goals of (1) returning the child to her
father, and (2) placing the child up for adoption.
Jeff was given the opportunity on May 9 to speak with
the foster mother and to participate in a conference on the
status of the child. Jeff declined to participate. The social
worker later asked the foster mother to call Jeff. In July the
foster mother reached him and described Jasmines birth and
medical problems. Jeff did not express any intentions or plans
regarding Jasmine.
Jeffs conversations with his social worker during the
summer of 2002 became increasingly strained. He expressed anger
when he came to understand that the state was concurrently
working toward adoptive placement. At one point he exploded and
stated that he thought the state was not being fair with him. He
complained that it was hard to reach the social worker and that
he had not yet received in the mail any photographs or medical
information. Jeffs personal counselor, who sometimes joined in
the conversations, later testified that the relationship between
Jeff and the Alaska social workers was adversarial.
Jeff did not request visitation with Jasmine until
September 4, 2002. As a trip to Anchorage was planned to visit
his other daughters, Jeff asked if he could also schedule visits
with Jasmine. This trip was ultimately cancelled. On November
26 Jeff failed to participate in a second administrative review
of Jasmines case.
Beginning in November, Jeff and the foster mother had
contact once a month. Jeff did not state any desire to visit,
let alone parent, Jasmine. Though Jeff testified that he had
made up his mind to parent Jasmine as of May 2002, he also
testified that he feared that Jasmine suffered from facial
deformities and consider[ed] relinquishing his parental rights if
she was in dire straits. In fact, in October he discussed
relinquishing his parental rights with his counselor due to the
high level of care the child required. He now argues that he
could not make a final decision about parenting before seeing
certain additional information, including photographs and medical
records.6
Jeff traveled to Anchorage in January 2003 to
participate in the mediation of both of his CINA cases. The
mediation regarding Jasmine was unsuccessful. During his stay,
Jeff was permitted open-ended visitation with Jasmine. He made
five visits of one to two hours, supervised by the foster mother.
While it appears that the visits were pleasant, the foster mother
later testified that Jeff spent considerable time talking on his
cell phone, was in a hurry to leave, and continued to avoid
stating any intention regarding Jasmine. Jeff offered to
purchase toys and clothes for the daughter, but the foster mother
declined. Jeff later testified that he was surprised to find a
healthy and beautiful child, not as sickly as described. While
in Anchorage, Jeff apparently revived his relationship with the
mother of his other children, a relationship in the past marked
by extensive violence. Jeff returned to Pennsylvania on February
1 and had no further contact with the social worker. Jeff later
testified that he did not intend to move to Anchorage, even
temporarily, to establish a gradual bond with Jasmine, unless he
received an iron-clad guarantee from the state that he would get
custody.
Jasmine continues to have developmental problems. At
seventeen months, she stopped talking and regressed in motor
skills. She requires ongoing medical monitoring and has formed
strong emotional attachments to her foster mother and father.
The state put on expert testimony at trial that trauma would
result to Jasmine if removed from her foster familys care.
B. Proceedings
As noted, the state filed a petition to terminate the
parental rights of Melanie and Jeff in March 2002. A bench trial
before Superior Court Judge Morgan Christen began in March 2003.
After the state presented its case, Melanie voluntarily
relinquished her parental rights. After the close of trial, the
superior court terminated Jeffs parental rights. It found that
Jeff abandoned Jasmine under AS 47.10.013(a)(2)-(3), that he
neglected her under AS 47.10.014, that he has not remedied these
conditions, that the state made reasonable efforts to provide
appropriate family services, based on the facts and circumstances
of the case and to achieve permanency for the child, and that
termination was in the best interests of the child. Jeff
appeals.
III. STANDARD OF REVIEW
Whether Jeffs due process rights were violated is a
question of law,7 as is the question whether the superior courts
findings meet the requirements of the applicable child-in-need-of-
aid statutes and rules.8 We review questions of law de novo, and
will adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.9
We review the factual findings underlying the superior
courts termination decision for clear error, and will reverse
only if the record leaves us with a definite and firm conviction
that the superior court has made a mistake.10
IV. DISCUSSION
A. Jeffs Procedural Due Process Rights Were Not Violated.
Jeffs first contention on appeal is that the state
violated his rights to procedural due process by denying him any
opportunity to participate in an adjudication hearing. He
complains that he was not given notice of the initial 2001 CINA
adjudication in violation of CINA Rule 7(b), which requires that
notice be given to the parents. In addition, because an
adjudication is generally required before the state can seek
termination of parental rights, Jeff argues that he was entitled
to participate in an adjudication before being subjected to a
termination hearing. Jeff requested bifurcation of adjudication
and termination, but the superior court denied his request
without comment. We consider first whether due process or the
CINA statutes and rules entitled Jeff to first participate in an
adjudication hearing.
Due process under the Alaska Constitution requires, at
a minimum, that parties be notified of the subject of proceedings
concerning them so that they will have a reasonable opportunity
to be heard.11 Similarly, CINA Rule 15(b) requires the state to
give notice prior to an adjudication hearing to the persons
specified in CINA Rule 7(b) within a reasonable time prior to the
hearing. CINA Rule 7(b) requires the notice to be given to the
parents . . . if these parties can be found after diligent
efforts.
The state filed an emergency petition for CINA
adjudication on February 20, 2001, and the parties stipulated to
probable cause for adjudication two days later. The parties
stipulated to a permanent adjudication that Jasmine was a child
in need of aid in July 2001. That stipulation was entered into
by Melanie and Jimmy, her then-boyfriend. At the time of the
emergency and permanent adjudications, the state reasonably
believed that Jimmy was the father,12 while Jeffs identity and
location remained unknown. Because Jeff could not be found after
diligent efforts, the state had no obligation to send him notice;
accordingly, it complied with the CINA notice requirements during
the initial adjudications.
Jeff also argues that he has an absolute entitlement to
participate in an adjudication before being subjected to a
termination hearing. Generally, an adjudication must take place
before a termination, even if within the same hearing,13 to give
the state custody of the child and the court jurisdiction to
terminate.14 There is no support in the CINA statutes, rules, or
case law, however, for Jeffs proposition that all parents are
entitled to participate in this procedure. While known parents
must be given adequate notice, the ultimate focus of a CINA
adjudication is on the child, not the parents. Thus, a child can
be adjudicated based on the acts of just one parent, for we have
stated that the other parents acquiescence or fault in allowing
the abuse to occur is not required in order to find the child to
be in need of aid.15 Adjudication is the mechanism to determine a
childs status and to enter the child into state custody.16 The
parents action (or inaction) is rather the focus of the later
termination hearing.17
The language of the termination statute also indicates
that a specific parents acts need not have been the subject of a
prior adjudication hearing. A termination requires the state to
show by clear and convincing evidence that the child has been
subjected to conduct or conditions described in [the adjudication
statute]18 and that the parent has not remedied these conditions.19
Thus, it is not required that such conduct or conditions be the
same as those which formed the basis for the previous CINA
adjudication.20 This case serves as an illustration. While the
adjudication was based on drug exposure and risk of mental injury
(caused by the mother), the termination of Jeffs rights was based
on his abandonment and neglect. Thus, to terminate his rights,
the state needed to prove conduct amounting to abandonment or
neglect and that Jeff failed to remedy those conditions. It did
not need to prove anything about what initially compelled the
state to seek custody to protect the child. We therefore
conclude that Jeff did not have an absolute right to participate
in an adjudication hearing.21
B. The Superior Court Did Not Err in Finding Abandonment
and Neglect.
Jeff next argues that the superior courts conclusions
leading to termination were not supported by the record and were
therefore erroneous. To terminate parental rights, the state
must first show by clear and convincing evidence that (1) the
child has been subjected to conduct or conditions described in AS
47.10.011 and (2) the parent has failed to remedy such conduct or
conditions.22 Based upon its lengthy factual findings, the
superior court concluded that Jeff subjected the child to
abandonment and neglect and that he failed to remedy either
condition. Jeff argues that the factual findings were
insufficient as a matter of law to support a conclusion of
abandonment or neglect.
Abandonment is defined generally as occurring when a
parent . . . has shown a conscious disregard of parental
responsibilities toward the child by failing to provide
reasonable support, maintain regular contact, or provide normal
supervision, considering the childs age and need for care by an
adult.23 We have interpreted the general abandonment test to
encompass two prongs: (1) whether the parents conduct evidenced a
disregard for his or her parental obligations, and (2) whether
that disregard led to a destruction of the parent-child
relationship.24 We apply an objective test to see if actions
demonstrate a willful disregard of parental responsibility; we do
not look to the parents subjective intent or wishful thoughts and
hopes for the child.25 The CINA statutes also define specific
examples of abandonment, two of which the superior court
concluded were committed by Jeff: (1) that he has made only
minimal efforts to support and communicate with the child and (2)
that he failed for a period of at least six months to maintain
regular visitation with the child.26
The trial courts finding of abandonment under this test
is adequately supported by the record. We have said that a
parent has an affirmative duty . . . [to show] continuing
interest in the child and [to make] a genuine effort to maintain
communication and association; token efforts to communicate with
a child will not satisfy this duty.27 The record shows that Jeff
failed to meet his affirmative duty to show a genuine interest in
the child and that his minimal efforts to communicate were merely
token efforts. A review of Jeffs pattern of behavior
demonstrates that he failed to objectively manifest a desire to
be involved in Jasmines life.
As an initial matter, Jeff argues that his absence
during the first year of Jasmines life should not count against
him because a person cannot abandon a person or relationship the
person does not know exists. While we agree generally with this
proposition, we note that Melanie testified at trial and in an
affidavit that she informed Jeff about a possible pregnancy
shortly after conception. During and after incarceration, Jeff
made no effort to determine whether he had in fact fathered a
child.
Jeff insists, however, that he did not know of Jasmines
existence until January 2002. Even accepting his claim, the
superior courts finding of abandonment is still justified by the
evidence in the record regarding Jeffs actions between January
2002 and the start of trial in March 2003. In February 2002 Jeff
received advance written notice of a permanency hearing regarding
Jasmine during which the court ordered termination of his
parental rights and failed to participate in the hearing or
contact any state office in response. During his first telephone
conversation with the social worker in April, Jeff gave no
intention regarding Jasmine, but stated that he would call back
on the following Friday to announce his intentions. He did not
call back and never subsequently expressed his intent to parent
Jasmine. In early May he declined the opportunity to speak with
the foster mother and participate in a conference regarding
Jasmine. In November he failed to participate in another
conference on Jasmine. He did not request any visitation with
Jasmine until September roughly eight months after learning of
her existence. In addition, while complying generally with his
case plan, he failed to complete any of the requirements specific
to Jasmine, such as learning about her medical needs or spending
time with her to form a bond. Even when he came to Anchorage in
January 2003, Jeffs visits with Jasmine were erratic and short;
he spoke frequently on his cell phone and appeared to be in a
hurry to leave.
Most importantly, from when he learned of Jasmine until
trial a period of over one year there was no evidence that Jeff
manifested any desire to the social worker or the foster mother
to parent Jasmine. We reject his position that he needed
photographs and additional medical information before deciding
whether to parent Jasmine. To disregard a parental obligation
while trying to decide whether to undertake that obligation is
still a disregard of a parental obligation. In light of these
facts, we conclude that the superior court did not err in finding
abandonment.28
C. The Superior Court Did Not Err in Finding that the
State Made Reasonable Efforts To Reunite.
Jeffs next contention is that the record does not bear
out the superior courts conclusion that the state made reasonable
efforts (1) to provide appropriate family support services, based
upon the facts and circumstances of the case, but those efforts
were unsuccessful; and (2) to achieve permanency for the child.
Jeff argues that the state did not make reasonable efforts to
locate him, the natural father, after Jasmines birth. He also
argues that once notified of Jasmines existence, rather than
putting forth reasonable efforts to reunify, the states actions
demonstrated its intent to thwart Jeffs right to parent his
daughter.
The termination statute requires the state to prove by
a preponderance of the evidence that it has complied with the
provisions of AS 47.10.086 concerning reasonable efforts.29 Those
provisions require the state to make timely, reasonable efforts
to provide family support services to the child and to the
parents . . . that are designed to prevent out-of-home placement
of the child or to enable the safe return of the child to the
family home, when appropriate . . . .30 The state is specifically
tasked to identify and actively offer appropriate family support
services to the parent.31 Additionally, when making
determinations and reasonable efforts under this section, the
primary consideration is the childs best interests.32 Similarly,
with regard to reasonable visitation, the state is asked to
consider the nature and quality of the relationship that existed
between the child and the family member before the child was
committed to the custody of the department.33 In determining
reasonable efforts, we permit the state to consider the amount of
time available for reunification, considering how long the child
has been in foster care and whether allowing more time for
reunification would not be in the childs best interests.34
We first consider Jeffs contention that the state
failed to make reasonable efforts during the first year of
Jasmines life that is, in locating Jeff and establishing him as
the natural father. Jeff claims that he did not know about the
pregnancy and that he first learned of Jasmines existence on
January 30, 2002, almost one year after the birth. During that
year, Melanie and Jimmy stipulated that probable cause existed
that Jasmine was a child in need of aid when she was eight days
old and later stipulated that Jasmine was a child in need of aid;
in addition, the state had managed case plans for Melanie and
Jimmy and had worked toward permanent placement for Jasmine with
the foster family. Throughout this time, the state acted under
the reasonable assumption that Jimmy was the natural father. Not
only had he been named as the father at birth, but he accepted
that role and repeatedly participated in the court proceedings as
father. Once Jimmy was excluded as the father, the state
obtained paternity results from Jeffs DNA in less than two
months. Once Jeffs paternity was established, the state mailed
him a summons regarding the case proceedings in about one month.
(The case worker apparently did not have a phone number or any
other means to communicate with him.) While there is no such
thing as too soon for communications of such a critical nature,
we cannot conclude that these delays before first contact were so
unreasonable as to necessitate a reversal of the termination.35
More important to our inquiry are the efforts made by
the state once Jeffs paternity was established. Though the
states efforts toward reuniting Jeff with his daughter were not
exemplary, neither were they unreasonable. The state notified
him in writing of the permanency hearing in February.36 The
social worker returned his calls, gave him information regarding
the child and the foster parents, mailed him documents relating
to the child, offered him the opportunity to speak with the
foster mother and participate in an administrative review hearing
on May 9 (which he declined), gave the foster mother Jeffs phone
number and requested that she call him, gave Jeff another
opportunity to participate in an administrative review in
November (which he also declined), and set up an open-ended
visitation schedule for Jeff with Jasmine during his January 2003
visit to Anchorage. In addition, in May 2002 the social worker
set up a case plan with the concurrent goals of (1) reuniting
Jeff as father of Jasmine; and (2) permanently placing Jasmine
with the foster family.
Despite these activities, there is also some evidence
in the record supporting Jeffs position that the state was slow
in contacting or responding to him and that it favored the goal
of placing Jasmine with the foster family. However, the record
strongly supports the view that Jeff never demonstrated a desire
to parent or otherwise be involved in the childs life, as
discussed in the previous section. Because the state is asked to
consider the prior relationship between the parent and child, the
temporal urgency of achieving permanent placement, and the childs
best interests, we conclude that the state, in determining what
efforts to reunite parent and child are reasonable, may consider
the parents actions. Here, Jeff never remotely committed to the
job of parenting Jasmine.37 In these situations, the law as well
as common sense does not dictate the state to force him, against
his will, into accepting the job. In light of these
circumstances, we are satisfied that the states efforts in this
case to reunite Jeff with Jasmine were reasonably calibrated to
the interest in parenting demonstrated by Jeff. The superior
courts conclusion that the state made reasonable efforts was
therefore not in error.
D. The Superior Court Did Not Err in Finding that
Termination Was in the Childs Best Interests.
Finally, Jeff contends on appeal that the court erred
in finding that the termination was in the childs best interests
because he was not responsible for the conditions that led to
Jasmines medical problems and CINA adjudication and he has
followed his case plan and developed a healthy lifestyle in
Pennsylvania. While parental rights cannot be terminated solely
on best interests the state must first satisfy the test of
showing some harmful parental conduct the statute states that
the court shall consider the best interests of the child during
the proceedings.38 The superior court concluded that [i]t is in
Jasmines best interests to terminate parental rights and free her
for adoption by the [J] family.
Numerous factual findings by the court support its
conclusion that it is in Jasmines best interests to remain with
the foster family. These findings are supported by the record.
Jasmine has resided with the family since the second week of her
life and has developed strong emotional attachments to them and
the court heard testimony underscoring the strength of the bond
created in the earliest years of childhood. The foster family
has been exemplary in the amount of care and affection given to
Jasmine throughout her life, and they now wish to adopt her.
Moreover, testimony indicated that Jasmine continues to have
developmental problems demanding substantial care, and that these
problems may well worsen upon a change in lifestyle as severe as
being separated from her foster parents. There is other support
as well: Melanie (though she has since relinquished her parental
rights) testified that she did not want Jasmine returned to Jeff
or his relatives, casting doubt on his parenting ability, and
there was little evidence to demonstrate that Jeff has the
capacity, experience, or willingness to properly raise the child.39
The superior courts conclusion that termination was in the best
interests of Jasmine was therefore not clearly erroneous.
V. CONCLUSION
Because Jeffs due process rights were not violated and
because the superior courts findings regarding abandonment,
reasonable efforts, and best interests were supported by the
record, we AFFIRM the superior courts termination of Jeffs
parental rights.
BRYNER, Chief Justice, concurring.
I join in the courts judgment and agree with the result
reached on all of the issues; but I disagree with its rationale
in deciding the issue of procedural due process. Specifically, I
disagree with the courts suggestion that Jeffs right to due
process could be met without adjudicating the states allegation
that his conduct since being identified as Jasmines father
amounted to abandonment and neglect of Jasmine; I would decline
to say, as the court does, that Jeff did not have an absolute
right to participate in an adjudication hearing on these CINA
allegations.1 I find no occasion to decide this difficult issue
here, because, in my view, the record shows that the termination
trial gave Jeff a full and fair adjudication hearing on the issue
of Jasmines current CINA status: in deciding to sever Jeffs
parental ties, the superior court necessarily determined that his
conduct since learning that he was Jasmines father amounted to
abandonment and neglect of his daughter and rendered her a child
in need of aid.
To terminate Jeffs parental rights under AS
47.10.088(a), the state was required to prove, among other
things, that Jasmine had been subjected to conduct or conditions
that caused her to be a child in need of aid under AS 47.10.011.
Conceivably, the state might have attempted to meet this
requirement by relying solely on Jasmines previous CINA
adjudication, which resulted from Melanies substance abuse and
neglect, and was entered without notice to Jeff. But the state
did not take this course; instead, it advanced new CINA
allegations as a basis for terminating Jeffs rights. The
petition for termination alleged that Jasmine had been subjected
to conduct or conditions making her a child in need of aid
because Jeff had abandoned and neglected her.2 Because these
allegations had not been included in the original CINA
proceeding, they could not have been established by reliance on
the original CINA adjudication; the state would have to prove
that Jeff engaged in conduct that met the statutory definition of
abandonment and neglect, and thereby rendered Jasmine a child in
need of aid.
The state pinpointed its basis for advancing these
claims well in advance of Jeffs termination trial. Two months
before trial, the state filed a detailed pretrial memorandum
elaborating the evidence that it intended to rely on to prove
abandonment and neglect. The memorandum made it clear that the
state would seek to show that Jasmine was a child in need of aid
because of abandonment and neglect by Jeff that occurred after he
learned that he was Jasmines father. In summarizing the states
theory on this point, the pretrial memorandum stated:
There is clear and convincing evidence
that this child was born a child in need of
aid, in part, because of her fathers
incarceration. After her father knew of his
paternity, and after his release from jail,
his conduct toward this child constitutes
neglect as defined in AS 47.10.014 and
abandonment as defined in AS 47.10.013(a)(2)
and (3).
Jeff unquestionably understood that the state was
advancing these new CINA theories and that the court would be
required to adjudicate the allegations of abandonment and neglect
as part of the termination trial. At the outset of the
termination trial, Jeff moved to dismiss the petition for
termination, arguing that termination would be premature because
Jasmines current status as a child in need of aid had not yet
been adjudicated. Contending that the court could not terminate
his parental rights unless the state first proved its new CINA
allegations, Jeff asked the court to bifurcate the proceedings so
that the CINA allegations would be adjudicated first, to be
followed by a trial on the issue of termination only if the state
prevailed on the adjudication.
Jeff also insisted that, in the interim, Jasmine should
be placed in his custody. Noting that he had not had an
opportunity to participate in the earlier adjudication
proceeding, Jeff reasoned that the state lacked jurisdiction to
keep Jasmine in its custody pending the new adjudication hearing
unless it could show probable cause that she continued to be a
child in need of aid despite Jeffs availability to serve as her
father. Since the state had no evidence to show probable cause,
Jeff claimed, it lacked jurisdiction to retain custody of
Jasmine.3
The state opposed Jeffs last-minute motion to dismiss.
Addressing Jeffs jurisdictional argument first, the state pointed
out that the initial CINA adjudication validly placed Jasmine in
state custody despite Jeffs lack of participation, since the
adjudication was entered before his paternity was established.
And because the custody order remained in effect, the state
argued, no showing of probable cause was required, and Jasmine
could properly remain in state custody pending trial on its
petition for termination.
As to Jeffs demand to bifurcate the adjudication and
termination proceedings, the state insisted that separate
hearings were not required by applicable law: AS 47.10.088(g)
expressly authorizes the state to include new CINA allegations in
a petition for termination;4 and CINA Rule 18(b) specifically
gives the superior court discretion to consolidate the
adjudication of these new allegations with the trial on the
states petition for termination.5 Relying on these provisions as
well as on existing case law,6 the state contended that the new
CINA allegations pertaining to Jeff could be adjudicated in the
context of his trial on the petition for termination.
By the time the state filed its opposition to Jeffs
motion to dismiss, the termination trial was already in progress;
the superior court denied Jeffs motion summarily and proceeded
with the trial. In conducting the trial, the superior court
implicitly recognized that the case presented mixed questions of
adjudication and termination. In response to a motion by Jeff,
the court indicated that it intended to enforce the provisions of
CINA Rule 18(f) when ruling on the admissibility of hearsay
evidence. Rule 18(f) adopts a two-tiered standard for hearsay in
termination trials: the rule allows reliable hearsay to be
admitted for most purposes, but it requires compliance with the
formal hearsay exceptions set out in the Alaska Rules of Evidence
when hearsay is offered to prove an issue relating to
adjudication.7 By invoking Rule 18(f), then, the court
unmistakably demonstrated its belief that Jeffs trial presented
consolidated issues involving both adjudication and termination.
After completing the termination trial, the superior
court issued a seventeen-page decision terminating Jeffs parental
rights. Much, if not most, of its decision was devoted to
findings describing pretrial conduct by Jeff amounting to
abandonment and neglect.
On appeal, Jeff argues that his right to procedural due
process was violated by these proceedings because he could not be
legally bound by the prior CINA adjudication order, which was
entered without his participation, and because he was not given
an opportunity to be heard on the issue of whether Jasmine should
be adjudicated as a child in need of aid at the time of the
trial.
This due process claim can be seen as raising several
discrete issues. To the extent that it simply asserts the right
to have a bifurcated proceeding to have the new CINA allegations
and the termination issues determined one after the other, so
that the questions of neglect and abandonment could be
adjudicated first, todays opinion correctly recognizes that Jeffs
argument lacks legal basis. The Alaska Statutes and our CINA
Rules expressly allowed the superior court to conduct a
consolidated hearing encompassing the new CINA allegations, as
well as the petitions other allegations relating specifically to
termination.
Similarly, Jeffs argument lacks legal merit insofar as
it suggests that he received inadequate notice of the new CINA
allegations. The petition for termination and the states
pretrial memorandum unequivocally spelled out the states intent
to prove that Jasmine was a child in need of aid because of
abandonment and neglect by Jeff occurring after he learned that
he was her father. And as already mentioned, the record
confirms that Jeff understood these new allegations and had a
full opportunity to defend against them during the termination
trial.
Finally, to the extent that Jeff seeks to claim that
the superior court based its termination order on the prior CINA
adjudication, instead of grounding it on new allegations of
abandonment and neglect, Jeffs claim simply has no factual basis.
When viewed as a whole, the petition for termination, the states
pretrial memorandum, the evidence at trial, and the superior
courts written decision convincingly establish that the
termination of Jeffs parental rights had little to do with the
conduct by Melanie addressed in the prior CINA adjudication.
Jeffs rights were terminated because he abandoned and neglected
Jasmine after being identified as her biological father, and
because the superior court found as a result of this conduct that
placing Jasmine with Jeff would expose her to serious emotional
harm.
The superior courts findings effectively covered all
elements needed to adjudicate Jasmine as a child in need of aid
because of abandonment and neglect by Jeff. In fact, they
necessarily included all the required elements of a CINA
adjudication: given CINA provisions cited in the petition for
termination and the evidence outlined in the states pretrial
memorandum, the court could not have found a basis for
terminating Jeffs parental rights under AS 47.10.088 without also
specifically finding by a standard of proof more stringent than
the one required for adjudication that Jeff neglected and
abandoned Jasmine after he knew that he was her father, that he
refused to alter this conduct, and thus prevented her from being
placed in his custody without risking serious harm.
In short, the petition for termination and pretrial
memorandum gave Jeff clear notice that all necessary elements for
a CINA adjudication would be tried; the parties fully addressed
these elements at trial; and the superior courts termination
decision squarely adjudicated them. It would exalt form over
substance to suggest that the superior courts failure to formally
label its ruling a CINA adjudication disqualifies it from being
recognized for what, in substance, it actually is: a consolidated
decision incorporating a CINA adjudication and a termination
order. Because this interpretation disposes of Jeffs due process
claim without relying on the prior adjudication, I see no need to
guess whether or when a termination might properly be based on a
prior CINA adjudication handed down without notice to the parent
whose rights the state seeks to sever. The courts speculative
discussion of this point strays beyond the facts of Jeffs case,
needlessly stretches the law, and, in my view, is sure to invite
confusion and error in future CINA proceedings.
_______________________________
1 Pseudonyms have been used to protect the identity of
family members.
2 The state suggests that it is standard procedure to
exclude the first-named father before testing others.
3 These daughters were CINA-adjudicated in 1997 due to
reoccurring violence between their parents. With respect to
these daughters, Jeff has maintained his residual parental rights
and apparently keeps in regular contact with them and their
therapists.
4 Jeff has two daughters by another woman; each girl has
been adjudicated as child-in-need-of-aid.
5 Melanie later completed an affidavit stating that she
does not want Jasmine to be placed with Jeff or any of his
relatives.
6 The social worker mailed this information in September,
but Jeff claims he never received this package. Jeff received a
second package in December. Because he was working in
Indianapolis at the time, and subsequently traveled to Alaska, he
did not actually view the packet until February 2003.
7 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000) (citations omitted).
8 Id.
9 Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).
10 Id. at 207-08.
11 Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002).
12 Jimmy was named father and agreed with this designation
at birth, participated with an attorney in subsequent court
hearings, and had not yet been excluded as the father by the
results of his DNA paternity test.
13 See CINA Rule 18(b); D.M., 995 P.2d at 208.
14 AS 47.10.088(d).
15 A.H. v. State, 779 P.2d 1229, 1232 (Alaska 1989).
16 Once a child is CINA-adjudicated, the state follows
general time lines during which it will attempt to reunite the
family or, if that process fails, move to terminate the parents
rights. See AS 47.10.080. The termination hearing in this case
followed these time lines; for example, the state filed the
termination petition against both parents within the deadline set
by the courts final permanency hearing.
17 See, e.g., AS 47.10.088(a)(1)(B) (providing for
termination if the parent . . . has not remedied the conduct or
conditions in the home that place the child at substantial risk
of harm . . . .).
18 AS 47.10.088(a)(1)(A).
19 CINA Rule 18(c); AS 47.10.088(a).
20 The 1999 amendments to the CINA rules make this point
clear. The pre-amendment termination rule required clear and
convincing evidence that the parental conduct that caused the
minor to be adjudicated a child in need of aid is likely to
continue unless parental rights are terminated. Former CINA Rule
18(c), as later amended by SCO 1355, effective July 15, 1999.
This language seems to require the termination to be grounded on
the same harmful conditions that brought about the initial
adjudication. The current language, on the other hand, allows a
termination to be based upon any harmful CINA condition, not just
the one that formed the basis for the adjudication.
21 We also note that because Jeff enjoyed a full trial in
which to contest the states allegations of abandonment and
neglect, he has failed to show prejudice in being denied a prior
adjudication. We have said that nothing resolved at the
adjudication stage foreclose[s] a parent from fully litigating
all relevant issues at the termination stage. D.M. v. State,
Div. of Family & Youth Servs., 995 P.2d 205, 209 (Alaska 2000).
Moreover, the court found that Jeffs abandonment and neglect were
ongoing and unremedied, and these findings were made under a
higher quantum of proof than what would have been required in an
adjudication hearing. Compare AS 47.10.088 (clear and convincing
evidence for termination) with AS 47.10.011 (preponderance of the
evidence for adjudication).
22 AS 47.10.088(a).
23 AS 47.10.013(a).
24 G.C. v. State, Dept of Health & Soc. Servs., 67 P.3d
648, 651 (Alaska 2003) (quotation omitted).
25 Id. at 652 (citations and quotations omitted).
26 AS 47.10.013(a)(2)-(3).
27 In the Matter of H.C., 956 P.2d 477, 481 (Alaska 1998)
(quoting E.J.S. v. State, 754 P.2d 749, 751 (Alaska 1988)).
28 Because we find that the superior courts finding of
abandonment was supported by the record, we need not consider the
courts additional finding regarding neglect.
29 AS 47.10.088(a)(2).
30 AS 47.10.086(a).
31 Id. at (a)(1)-(2).
32 Id. at (f) (emphasis added).
33 AS 47.10.080(p).
34 G.C. v. State, Dept of Health & Soc. Servs., 67 P.3d
648, 653 & n.23 (Alaska 2003).
35 We also note that Jeffs absence during Jasmines first
year is not the fault of the state. Jeff knew that he had
engaged in sexual relations with Melanie. Jeff violated his
parole, which led to his incarceration during a significant
portion of Melanies pregnancy. Finally, Jeff took no steps while
in prison or after his release to determine whether he had
fathered a child, despite being told by Melanie that she thought
she was pregnant.
36 Jeff did not respond to this notice or appear at the
hearing. At that hearing, with only the mother present, the
court ordered the state to file a petition for termination
against both parents by March 13. The state complied with this
order. By attending this hearing (either at the initial
scheduled time or through a postponement), Jeff could have
quickly asserted an interest in parenting the child and changed
the course of the proceedings.
37 Indeed, eleven months after learning of Jasmines
existence, he sent no Christmas present or greeting to her. At
his first-ever visits with her the following month, he was
distracted and inattentive.
38 AS 47.10.088(c).
39 For example, while complying with the case plan in
other respects, he failed to complete those requirements specific
to Jasmine such as familiarizing himself with her or her medical
needs. The evidence also shows a continual anger problem. In
addition, his parenting plans center upon asking his sister (a
Las Vegas resident) to come to Pennsylvania to help parent the
child.
1 Slip Op. at 11-12.
2 See AS 47.10.011(1).
3 Jeff separately argued that if the court found
sufficient evidence to prove Jasmines present status as a child
in need of aid, it should dismiss the petition in any event,
because the state lacked sufficient evidence to establish that it
had made reasonable efforts to reunify Jasmine with Jeff.
4 AS 47.10.088(g) provides:
This section does not preclude the
department from filing a petition to
terminate the parental rights and
responsibilities to a child for other
reasons, or at an earlier time than those
specified in (d) of this section, if the
department determines that filing a petition
is in the best interests of the child.
5 CINA Rule 18(b) provides:
Purpose of Hearing. The termination
hearing is a disposition hearing to the court
on the question of whether the parental
rights to an adjudicated child in need of aid
should be terminated. Upon a showing of good
cause and with adequate notice to the
parties, an adjudication hearing and a
termination hearing may be consolidated.
Alaska Rule of Civil Procedure 42(a) grants similar
authority to the superior court in more general terms:
Consolidation. When actions involving a
common question of law or fact are pending
before the court, it may order a joint
hearing or trial of any or all the matters in
issue in the actions; it may order all the
actions consolidated; and it may make such
orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.
A motion requesting consolidation shall
be filed in the court where the case is
sought to be consolidated. The motion shall
contain the name of every case sought to be
consolidated. A notice of filing together
with a copy of the motion shall be filed in
all courts and served on all parties who
would be affected by consolidation.
6 Specifically, the state claimed support by analogy in
two prior cases: P.M. v. State, Dept of Health & Soc. Servs., 42
P.3d 1127 (Alaska 2002), and T.F. v. State, Dept of Health & Soc.
Servs., 26 P.3d 1089 (Alaska 2001).
7 Under CINA Rule 9, the Alaska Rules of Evidence apply
to CINA proceedings unless otherwise provided in the CINA Rules.
CINA Rule 15, which governs CINA adjudication hearings, makes no
other provision. But CINA Rule 18, which governs termination
trials, sets forth an exception in subsection 18(f):
Evidence. Hearsay that is not admissible
under a recognized exception to the hearsay
rule is not admissible at a trial on a
petition to terminate parental rights to
prove that the child has been subjected to
conduct or conditions described in AS
47.10.011. Otherwise, hearsay may be
admissible at the trial if it is probative of
a material fact, has circumstantial
guarantees of trustworthiness, and the
appearing parties are given a fair
opportunity to meet it.