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Owen M. v. State, Office of Children's Services (09/09/2005) sp-5942
Owen M. v. State, Office of Children's Services (09/09/2005) sp-5942
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
| OWEN M.,
| ) |
|
| ) Supreme Court No. S-
11798 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-02-619
CP |
|
| ) |
|
STATE OF ALASKA, OFFICE OF | ) O P I N I O
N |
|
CHILDRENS SERVICES, | ) |
|
| ) |
|
Appellee. | ) [No. 5942 - September 9,
2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Robert L. Breckberg, Assistant
Public Advocate, Chad W. Holt, Assistant
Public Advocate Section Supervising Attorney,
Anchorage, for Appellant. Michael G.
Hotchkin, Assistant Attorney General,
Anchorage, David W. Marquez, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM
I. INTRODUCTION
Owen M. appeals from an order terminating his parental
rights to his daughter Molly.1 Owen contends that the superior
court erred by approving an adoption plan for Molly without
taking testimony. Because we conclude that Owen waived his
argument that an evidentiary hearing was required and did not
timely appeal the denial of placement with Mollys paternal
grandparents, we affirm.
II. FACTS AND PROCEEDINGS
The superior court terminated the parental rights of
Owen and N.L. to their two-year-old daughter Molly as of October
8, 2004.2 In the termination proceedings the parents argued that
Molly should have been placed with her paternal grandparents in
Texas.
Molly, who was born in September 2002, was placed in
her current foster home in January 2003, fifteen days after she
was taken into custody by the Office of Childrens Services (OCS).
That same month the parents asked OCS to seek placement of Molly
with her paternal grandparents in Texas, and OCS pursued the
necessary home study.
In early June 2003, before the home study was complete,
the grandparents withdrew from the home study, apparently at the
urging of Owen. In August 2003 the grandparents appeared to
renew the request that Molly be placed with them. The court
denied the request, refusing to renew the home study process for
them. Neither Owen nor the grandparents appealed.
More than a year later during the termination
proceedings on October 8, 2004, Owen again requested that Molly
be placed with her grandparents. The court rejected his request
and entered a permanency plan for Molly of adoption by her foster
parents. Owen appeals.
III. DISCUSSION
Owen argues that the superior court improperly entered
findings on permanency . . . without any testimony, thus
excluding all potential relative placements, including the
paternal grandparents. We review Owens argument for plain error
because he did not ask the superior court for an evidentiary
hearing on Mollys placement.3 Plain error exists where an
obvious mistake has been made which creates a high likelihood
that injustice has resulted. 4
Owen cannot show plain error. The superior court did
not make an obvious mistake in not holding an evidentiary hearing
because neither the statute nor the CINA rule explicitly requires
one.5 Moreover, the likelihood of an unjust result is slim
because the superior court could have properly reached the same
result approving Mollys adoptive placement with her foster
parents even if it had held an evidentiary hearing.
Lastly, we observe that Owens request for an
evidentiary hearing is directed at getting Molly placed with her
paternal grandparents. However, the superior court denied the
familys requests to pursue placement with the grandparents in
August 2003. Owen or the grandparents needed to timely appeal
that placement denial.6 Because they did not do so, we will not
consider Owens current challenge to the placement decision as it
is untimely.7
IV. CONCLUSION
We AFFIRM the termination of Owens parental rights and
the permanency plan for Molly.
_______________________________
1 Pseudonyms or initials have been used for all family
members to protect their identities.
2 N.L. does not appeal.
3 See, e.g., D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska
2001) (Issues not raised in the trial court shall not be
considered on appeal, except for plain error.).
4 Id. at 668 (quoting Sosa v. State, 4 P.3d 951, 953
(Alaska 2000)).
5 See AS 47.10.080(l); CINA Rule 17.2.
6 See S.S.M. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 3 P.3d 342, 345 (Alaska 2000) (holding
order denying placement of child in need of aid with his sister
was final, appealable order).
7 See Alaska R. App. P. 204(a)(1).
