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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Debbie G./Charles F. v. State of Alaska, DHSS (04/07/2006) sp-6000

Debbie G./Charles F. v. State of Alaska, DHSS (04/07/2006) sp-6000, 132 P3d 1168

     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,


) Supreme Court No. S- 11778
Appellant, )
) Superior Court No. 4FA-03-00084 PR
v. )
) O P I N I O N
MENT OF HEALTH AND SOCIAL ) No. 6000 - April 7, 2006
Appellee. )
CHARLES F.,                   )
                              )    Supreme Court No. S-11782
          Appellant,               )
                              )     Superior  Court  No.  4FA-03-
00084 PR
     v.                       )
          Appellee.           )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje Steinkruger, Judge.

          Appearances:    Kathleen  Murphy,   Assistant
          Public Defender, and Barbara K. Brink, Public
          Defender, Anchorage, for Appellant Debbie  G.
          Paul   Ewers,  Law  Office  of  Paul   Ewers,
          Fairbanks, for Appellant Charles F.  Megan R.
          Webb,  Assistant Attorney General, Anchorage,
          and   David  W.  M rquez,  Attorney  General,
          Juneau,   for  Appellee  State   of   Alaska,
          Department  of  Health and  Social  Services,
          Office of Childrens Services.  Julie L.  Webb
          and  Mark  Andrews, Fairbanks,  for  Appellee
          Native Village of Nulato.

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

          EASTAUGH, Justice.

          Parents who are admittedly unable to care for their son
argue  that he is not in need of aid because there is a  relative
willing  to care for him.  The superior court, finding  that  the
parents  designation of someone else to care for their child  did
not  remedy  their  conduct that had placed the  child  at  risk,
terminated  their  parental rights.   Because  the  parents  plan
provides neither permanency nor assurance that they would not try
to  regain  physical  custody if they  were  to  retain  parental
rights,  and  because the applicable statute, AS 47.10.088,  only
permits  return  of children to their parents and  not  to  other
relatives, we affirm.
          John  G.  was born two months prematurely, on April  8,
2003.1  He is classified as a special needs child.  Both of Johns
biological  parents  have  a history of substance  abuse,  mental
problems,  and  criminal activity.  The parents,  Debbie  G.  and
Charles F., acknowledge that they are either unwilling or  unable
to  care  for John.  Debbie and Charles are not married  to  each
other and reside together off and on.
          When  John was six weeks old and still in the hospital,
the  Office  of Childrens Services (OCS) took emergency  custody.
The  next  day  Debbie signed papers relinquishing  her  parental
rights, but she changed her mind a few days later.  When John was
released from the hospital he was placed in foster care with  the
Smith  family, because the Smiths had adopted Johns half-brother.
Debbie had suggested that the Smiths take custody of John when he
was  released  from  the  hospital.  In  June  2003  Charles  was
identified as Johns father.  At an adjudication hearing in August
Charles stipulated that he was unable to care for John and agreed
to the state taking temporary custody.
          Debbie  has  declared that she cannot  raise  John  and
since August 2003 has confirmed that she wants relatives to  care
for  the  child.   Both parents have now agreed  that  they  want
Charless  sister,  Aunt  Eva, to raise John.   At  times  Charles
appears  to  have  been  against actual  adoption  by  Aunt  Eva.
Sometimes  Charles spoke of having John placed  with  a  relative
only  temporarily, perhaps until the child was eight or ten years
          Johns paternal grandmother has also been considered  as
a  possible caretaker for John.  In fall or early winter of 2003,
when  John was about six months old, she requested that  John  be
transferred to her custody while the home study on Aunt  Eva  was
          In April 2004 OCS sought termination of parental rights
based on the parents continued lack of ability or desire to raise
John.  By September OCS had considered three adoption options for
John:  Johns Aunt Eva, Johns paternal grandmother, and the  Smith
family;  it  determined  that  the  Smith  family  was  the  best
permanent placement.
          Following a September trial on the states petition  for
termination  of  parental  rights, the superior  court  issued  a
ruling terminating the parental rights of both parents.  It found
that the parents had abandoned John and that their use of alcohol
to  excess,  cocaine and fights make it physically dangerous  for
[John], a special needs child, to be in their care.  The superior
court  ruled  that  [t]he parents have not, within  a  reasonable
time, remedied the conditions in their home that place [John]  at
substantial risk of harm or risk of physical or mental injury.
          Both parents appeal.
     A.   Standard of Review
          In a child in need of aid (CINA) proceeding
          [w]e  apply  the  clearly erroneous  standard
          when  reviewing  the superior courts  factual
          findings.    Factual  findings  are   clearly
          erroneous when we are convinced, upon  review
          of the entire record, that a mistake has been
          made.   Whether  the superior courts  factual
          findings satisfy applicable CINA rules  is  a
          question of law subject to de novo review.[2]
We  apply our independent judgment when reviewing a lower  courts
interpretation of statutes and other related legal questions.3
     B.   Parents  Who  Place the Child at Risk of  Harm  Do  Not
          Remedy  the  Conduct  or  Condition  by  Designating  a
          Relative To Raise the Child.
          Debbie  G. and Charles F. argue that they remedied  the
conduct  or  conditions  that  risked  harm  to  their   son   by
designating  a relative to care for him, and therefore  satisfied
AS 47.10.088(a)(1)(B).
          Alaska Statute 47.10.088 provides in pertinent part:
          (a)   Except  as provided in AS 47.10.080(o),
          the rights and responsibilities of the parent
          regarding  the  child may be  terminated  for
          purposes  of freeing a child for adoption  or
          other   permanent  placement  if  the   court
          finds(1)   by  clear and convincing  evidence
          that(A)    the  child has been  subjected  to
          conduct   or  conditions  described   in   AS
          47.10.011;  and(B)   the parent(i)   has  not
          remedied  the  conduct or conditions  in  the
          home that place the child at substantial risk
          of  harm;  or(ii)      has failed,  within  a
          reasonable  time, to remedy  the  conduct  or
          conditions in the home that place  the  child
          in  substantial  risk so that  returning  the
          child to the parent would place the child  at
          substantial risk of physical or mental injury
          . . . .
          John  has been subjected to conditions described in  AS
47.10.011 (including the mothers admitted substance abuse),  thus
satisfying AS 47.10.088(a)(1)(A).4  Debbie and Charles admit they
are  unable  to care for John.  The only question they  raise  on
appeal   is  whether  under  AS  47.10.088(a)(1)(B)  the  parents
remedied  . . . conditions in the home that had threatened  Johns
          The  parents argue that if John were returned to  their
care  he  would be cared for by a relative, and that consequently
they would present no danger to him.  They argue that sending the
child  to  a relative would remedy the conduct and conditions  in
the  home  that  place  the  child at substantial  risk,  not  by
changing  the conduct and conditions which had previously  placed
the  child at risk, but by changing the childs residence so  that
the  ongoing dangerous conduct or conditions would no longer pose
a risk to the child.
          We  acknowledge that in some circumstances the  parents
reading  of AS 47.10.088(a)(1)(B) would not  be implausible,  and
moreover, that in some circumstances sending a child to live with
relatives  would  be  an  appropriate  and  responsible  way   to
eliminate  a  risk of harm to a child.  Given the facts  of  this
case,  however, AS 47.10.088(a)(1)(B)(ii) permits termination  of
parental rights.
          It  is important that AS 47.10.088(a) declares that the
rights and responsibilities of the parent regarding the child may
be  terminated  for purposes of freeing a child for  adoption  or
          other permanent placement.  (Emphasis added.)  The statute
emphasizes  permanent placement of children.  This is so  because
moving  children  from  family to family can  be  disruptive  and
unhealthy   for   children.5   The  emphasis  on  permanency   in
subsection (a) informs our reading of the rest of AS 47.10.088.
          Alaska  Statute  47.10.088(a)(1)(B)  only  contemplates
returning  the child to the parent, not to other relatives,  once
the  child  is  in  state custody.  In light  of  the  permanency
requirement  that  underlies all of  AS  47.10.088,  the  statute
implies  that a parents remedial efforts satisfy the statue  only
if  they  remedy the risk posed by returning  the  child  to  the
parent.   Allowing parents who are admittedly unfit  to  raise  a
child  to  simply designate others to raise the  child  for  them
would  not ensure a permanent placement.  Such parents  would  be
legally entitled to demand physical custody from the relative  at
any  time,  perhaps after only a few weeks or months.6   If  that
happened, either CINA proceedings would again be needed,  or  the
state would have to permanently monitor the parents conduct.  The
statute is intended to avoid such ongoing efforts and impermanent
          We  therefore read AS 47.10.088 to require that parents
remedy  their conduct that would place the child at risk  if  the
child  were returned to their custody, even if this conduct would
not  present  an  immediate threat while the child  resided  with
relatives.   The  superior court found that the  parents  use  of
alcohol   to  excess,  cocaine  and  fights  make  it  physically
dangerous for [John], a special needs child, to be in their care.
The  superior court went on to conclude that, given  the  parents
history of violence and substance abuse, John would likely suffer
harm  within  hours of being in their care. Short of  terminating
their parental rights, there is no way to ensure that the parents
conduct would not threaten the child.  We therefore hold that  if
parents have not remedied the conduct that poses an active threat
to  a  childs  safety, merely designating a relative  as  primary
caretaker  does  not  remedy the conduct and therefore  does  not
satisfy AS 47.10.088(a)(1)(B)(ii).
     C.   Johns Parents Have No Right To Direct His Adoption.
          Charles   also  argues  that  the  state  should   have
permitted  the  parents to designate who would  adopt  John.   He
cites AS 47.10.084(c), which provides in pertinent part:
          When there has been transfer of legal custody
          or  appointment  of a guardian  and  parental
          rights  have  not  been terminated  by  court
          decree,   the  parents  shall  have  residual
          rights  and responsibilities. These  residual
          rights  and  responsibilities of  the  parent
          include,  but are not limited to,  the  right
          and  responsibility of reasonable visitation,
          consent  to  adoption, consent  to  marriage,
          consent  to  military enlistment, consent  to
          major medical treatment . . . .
          We  have previously noted that [a]fter parental  rights
have  been  fully terminated, the former parent has  no  residual
          rights at all.7  The issue before us is therefore whether, after
custody  was  transferred  but before the  parental  rights  were
terminated,  the state should have followed the parents  adoption
preference.   Alaska Statute 47.10.084(c), however,  only  allows
parents who retain parental rights to veto adoption; it does  not
confer any new rights on parents.  It lists residual rights  that
are  not lost with transfer of legal custody.8  These rights  are
conferred in AS 25.23.040, which provides:
          Unless  consent  is  not  required  under  AS
          25.23.050, a petition to adopt a minor may be
          granted   only  if  written  consent   to   a
          particular adoption has been executed by(1)  the mother of the
          minor; [and](2)     the father of the minor . . . .
          This  section confers only a negative right.  The child
cannot  normally be adopted without the consent of  the  parents,
but  this  section  does not give parents any  affirmative  legal
right  to  require  the  state to permit a  particular  adoption.
Charles cites no precedent supporting a different reading of   AS
47.10.084(c).  Our explanation in a previous case of the  reasons
for  the consent provision confirms the absence of an affirmative
right.  In Delgado v. Fawcett we characterized the parents  right
to  consent  to  adoption as the right to peremptorily  veto  the
adoption of his child9 and noted that the consent provisions  are
designed  to  protect  the natural rights  of  a  parent  to  the
custody, society, comfort, and services of the child.10   Parents
whose  parental  rights are being terminated  therefore  have  no
affirmative  right to have their child adopted  by  a  person  of
their choosing.
          Because  Debbie and Charless designation of a  relative
as  caregiver for John did not remedy the risk of harm they  pose
to  John, and because parents have no affirmative right to decide
who  will  adopt  their children, we AFFIRM  the  ruling  of  the
superior court.
     1    We use pseudonyms for all individuals in this case.

     2     Erica A. v. State, Dept of Health & Soc. Servs.,  Div.
of Family & Youth Servs., 66 P.3d 1, 6 (Alaska 2003).

     3    Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004).

     4    AS 47.10.011 provides in relevant part:

          Subject to AS 47.10.019, the court may find a
          child  to  be a child in need of  aid  if  it
          finds by a preponderance of the evidence that
          the  child has been subjected to any  of  the
          (1)   a parent or guardian has abandoned  the
          child  as described in AS 47.10.013, and  the
          other  parent  is  absent  or  has  committed
          conduct or created conditions that cause  the
          child to be a child in need of aid under this
          chapter; . . .
          . . . .
          (6)    the  child  has  suffered  substantial
          physical harm, or there is a substantial risk
          that   the   child  will  suffer  substantial
          physical harm, as a result of conduct  by  or
          conditions  created  by  the  childs  parent,
          guardian, or custodian . . .
          . . . .
          (10)  the  parent,  guardian,  or  custodians
          ability  to  parent  has  been  substantially
          impaired by the addictive or habitual use  of
          an intoxicant . . .
          (11) the parent, guardian, or custodian has a
          mental     illness,     serious     emotional
          disturbance, or mental deficiency of a nature
          and   duration  that  places  the  child   at
          substantial risk of physical harm  or  mental
          injury . . . .
     5     We  have  often  noted  that  young  children  require
permanency  and  stability or risk long-term  harm.   See,  e.g.,
Stanley B. v. State, Div. of Family & Youth Servs., 93 P.3d  403,
408  (Alaska 2004) (holding that temporary placement, until  [the
father]  is released from prison, would not satisfy the childrens
immediate need for permanency and stability).

     6     We  have  held that parental rights include [p]hysical
possession of the child which, in the case of a custodial  parent
includes  the  day-to-day care and companionship  of  the  child.
L.A.M. v. State, 547 P.2d 827, 833 n.13 (Alaska 1976).

     7     C.W.  v. State, 23 P.3d 52, 57 (Alaska 2001)  (holding
that  parents  had  no right to visitation after  termination  of
parental rights).

     8    See AS 47.10.084(c).

     9    Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973).

     10    Id. (quoting In re Parks Petition, 127 N.W.2d 548, 553
(Minn. 1964)).

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