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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeff v. State (07/15/2005) sp-5922

Jeff v. State (07/15/2005) sp-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,


JEFF A.C., JR., )
) Supreme Court No. S- 11366
Appellant, )
) Superior Court No.
v. ) 3AN- 01-94 CP
Appellee. ) [No. 5922 - July 15, 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

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

          CARPENETI, Justice.
          BRYNER, Chief Justice, concurring.

            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
     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
          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
          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
          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
          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
          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
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
     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
          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
          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 the filing of a petition
to  terminate  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
     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
          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.
          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
          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
          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
          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
          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
          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.
          In the Supreme Court of the State of Alaska

Jeff A.C., Jr.,                 )
                                ) Supreme Court No. S-11366
                                   Appellant,  )
                   v.           )            Order
                                )   Petition for Rehearing
State of Alaska,                )
                                    Appellee.   )        Date  of
Order: 7/15/05
Trial Court Case # 3AN-01-00094CP

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

     On  consideration of appellees petition for rehearing, filed
on 5/5/05,

     It is Ordered:

     1.   The Petition for Rehearing is Granted.

     2.    Opinion No. 5893, issued on 4/27/05, is Withdrawn  and
Opinion No.   5922, is issued on this date in its place.

     The  language  at  page 14, lines 12-13 is  modified.    The
modified  sentence  now  reads: In February  2002  Jeff  received
advanced written notice of a permanency hearing regarding Jasmine
during  which  the  court ordered the filing  of  a  petition  to
terminate his parental rights  and failed to participate  in  the
hearing . . ..

     Entered by direction of the court.

                                   Clerk of the Appellate Courts

                                   Marilyn May

Supreme Court Order
Re: Jeff A.C., Jr. v. State
File No. S-11366
July 15, 2005
Page Two

cc:  Supreme Court Justices
     Judge Christen
     Trial Court Appeals Clerk


     Shelley K Chaffin
     Law Office of Shelley K Chaffin
     4005 Hayes Street #2
     Anchorage AK 99503

     Mary Ann Lundquist
     Attorney Generals Office
     100 Cushman Street Ste 400
     Fairbanks AK 99701

     Kathleen A Murphy
     Assistant Public Defender
     900 West Fifth Avenue  Suite 200
     Anchorage AK 99501

     Kathleen Wilson
     P. O. Box 104106
     Anchorage AK 99510
     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

     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

     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

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.