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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Adoption of Missy M. (04/14/2006) sp-6001
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
| In the Matter of the Adoption of: | ) Supreme Court No. S-11898 |
| ) | |
| MISSY M. and CAMERON H., | ) Superior Court Nos. |
| ) 1KE-04-00071 & 1KE- 04-00098 PR | |
| Minor Children Under the Age of | ) |
| Eighteen Years. | ) O P I N I O N |
| ) | |
| ) No. 6001 - April 14, 2006 | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Megan R. Webb, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellant State of Alaska. Bryan T. Schulz,
Schulz & Skiles, Ketchikan, for Appellees R.
and D. Donne.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
The State of Alaska, Department of Health and Social
Services, Office of Childrens Services (OCS) appeals the grant of
petitions by R.D. and D.D. (the Donnes) to adopt minor children
M.M. (Missy) and C.H. (Cameron).1 The Donnes had previously been
licensed by OCS as foster parents. But OCS had received
substantiated reports of abuse occurring in the Donnes home and
the Donnes relinquished their foster care license in 2004. OCS
withheld its consent to the adoption based on these reports and
the lapse of the license. The superior court found that OCSs
withholding of consent was unreasonable as against the childrens
best interests. Because the incorrect test was used to determine
the reasonableness of OCSs withholding of consent, we vacate the
order of adoption and remand the case for further findings.
II. FACTS AND PROCEEDINGS
The Donnes, R.D. and D.D., were first licensed as
foster parents in 1997. Their license was modified over the years
to allow up to seven foster children into their home. In total
they cared for about thirty children as foster parents.
In 2000 OCS received a report alleging inappropriate
methods of discipline used by the Donnes, including placing
Tabasco sauce on the childrens tongues, grabbing the children,
and pulling the childrens hair. OCS investigated these
allegations by interviewing each of five children separately. As
a result of this report, R.D. was required to and did complete a
plan of correction. The Donnes retained their foster home license
and OCS continued to place children with them.
In May 2001 OCS received a second report alleging that
the Donnes were still using Tabasco sauce as punishment and
pulling the childrens hair. Different children were allegedly
involved. The report was unconfirmed because the child telling
the story was too young to confirm the sequence of events.
In December 2001 OCS assumed emergency custody of Missy
and Cameron in a child in need of aid (CINA) case. Missy and
Cameron were placed with the Donnes on December 18, 2001. At
that time, Cameron was approximately six months old and Missy was
approximately eight years old. Cameron remained with the Donnes
until his removal in May 2004. Missy was at one point returned
to her mother in an attempt to reunify the family; when that
attempt failed, she was returned to the Donnes.
In April 2004 OCS received a third report alleging that
inappropriate discipline was being practiced in the Donnes home.
The allegations were first brought to OCSs attention by another
foster parent who occasionally took care of foster children who
were living with the Donnes on weekends. The report included a
list of disciplinary methods used by the Donnes, including
grabbing a child under the chin so hard as to leave a bruise;
pulling hair; calling the children belittling names; requiring
children to run back and forth between the house and a pole at
the edge of the yard; and forcing them to stand and touch their
toes until their legs ached. There was also an allegation that
one of the children, who was frightened of showers, was thrown
into a shower in the middle of the night if he wet the bed. At
this time, the Donnes had seven foster children in their care
including Missy and Cameron, and D.D.s teenage daughter was also
living with them.
OCS investigated by interviewing five of the children
and four adults. Because each childs story was consistent, OCS
considered the allegations to have been substantiated. R.D. was
also interviewed as part of the investigation; initially, she
denied any wrongdoing, but she subsequently admitted to some of
the conduct, maintaining that she thought her methods permissible
as long as they did not result in bruises.
As a result of this investigation, OCS removed all
foster children from the home. R.D. was told that she would
retain her foster care license if she completed another plan of
correction. The plan was to include a mental health evaluation
of R.D. as well as in-home services offered through a parenting
program. In response, R.D. sent a letter refusing to participate
in a mental health evaluation and stating that she did not want
to be a foster parent any longer. The state then closed the
Donnes foster care license in a letter dated June 15, 2004. In
the letter, OCS explained to R.D. that if the Donnes wished to
become foster parents again, they would have to complete the plan
of correction before the license was reissued.
The Donnes filed their petition to adopt Cameron on
June 15, 2004. They filed their petition to adopt Missy on
August 20, 2004.2 When questioned why the petitions were filed
separately, R.D. explained that they had been told that Cameron
was being sent to Canada and that they had to act on a petition
to adopt him right away.
A two-day evidentiary hearing was held on November 22
and 24, 2004, the purpose of which was to determine whether the
Donnes were unfit to be parents. The superior court judge
commented during the hearing that he did not consider the reports
of discipline used by the Donnes to be unusual or substantially
different from what he had experienced as a child. At the end of
the hearing, the trial court found that the Donnes were not unfit
to be parents. But because the parents of Missy and Cameron had
not yet consented to the adoption, the superior court did not
consider the hearing an adoption hearing and the issue of OCSs
consent was not decided.
Subsequent to the evidentiary hearing, the mother gave
her consent to the adoption petitions for both children on
November 29, 2004. The mother relinquished her rights to both
children on December 6, 2004 and the childrens fathers rights
were terminated on the same date. A home study, deemed
acceptable by the superior court, was undertaken by an expert
hired by the Donnes attorney prior to the adoption hearing. The
adoption hearing was held on February 22, 2005.
At the adoption hearing, testimony was taken from the
person who performed the home study, the grandmother of the
children, R.D., and a mental health therapist as witnesses on
behalf of the Donnes. OCS called an OCS worker and Michelle
Simpson, with whom Missy was living at the time. Missy was also
called to testify. The two main issues before the court were
OCSs consent and Missys consent.
As to Missys consent, because she was over ten years of
age at the time of the hearing, her consent is required under AS
25.23.040(5) unless the court in the best interest of the minor
dispenses with the minors consent. Missy had been inconsistent
about whether she wanted to be adopted by the Donnes. The
superior court considered it to be in her best interest to
dispense with her consent to the adoption.
As to OCSs consent, the superior court recognized that
OCS was concerned about the children being adopted by a family
which had lost its foster care license. The superior court
determined that although the Donnes did not meet the standards
OCS applied to foster parents, those standards are a different
set of standards from those to be applied to adoptive parents.
The superior court explained that the standards to be applied to
adoptive parents were less stringent than those applied to foster
parents. The superior court also concluded that the best
interests of the children, particularly their interest as
siblings to remain living together, would be best served by
granting the adoption petitions. The superior court thus found
by clear and convincing evidence that OCS had unreasonably
withheld its consent to the adoption.
OCS filed a motion for reconsideration which the
superior court denied. In its denial, the superior court
recognized that OCS is free to set any standards it pleases on
its contractors (foster parents) but concluded that this right
does not extend to adoptive parents. The superior court noted
that it must use its own reading of the statutory standards for
adoptions and that this requirement cannot simply be delegated to
OCS. The superior court was also unconvinced that the childrens
adoption by the Donnes would lead to some sort of harm, much less
irreparable harm, particularly when the alternative is separate
and likely temporary placements for the uncertain period required
to process appeals. OCS now appeals.
III. STANDARD OF REVIEW
The superior court is given broad discretion in custody
awards so long as the best interests of the child are served.3
An adoptive placement determination should therefore be reversed
only when the record as a whole reveals an abuse of discretion or
when controlling factual findings are clearly erroneous.4
A factual finding is found to be clearly erroneous when
a review of the record leaves us with the definite impression
that a mistake has been made.5 Whether the trial courts factual
findings satisfy the requirements of the statute is a question of
law that we review de novo, determining the rule of law in light
of precedent, reason, and policy.6
We will find an abuse of discretion if the trial court
considered improper factors in making its custody determination,
failed to consider statutorily mandated factors, or assigned
disproportionate weight to particular factors while ignoring
others.7
IV. DISCUSSION
The primary question presented in this case is the test
by which the trial court should review the reasonableness of a
decision by OCS to withhold consent to an adoption. Consent by
OCS to the adoptions in this case was required under
AS 25.23.040(a)(3) because OCS had legal custody of Missy and
Cameron as a result of a CINA case. Alaska Statute
25.23.040(a)(3) provides:
(a) 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
. . . .
(3) any person[8] lawfully entitled to
custody of the minor or empowered to
consent[.]
But the requirement of consent by OCS could be excused under AS
25.23.050(a)(8) if the trial court determined, after examining
the written reasons for withholding consent, that OCS was
withholding consent unreasonably.9
The Donnes, as petitioners for adoption, have the
burden of proving by clear and convincing evidence that OCS
withheld its consent unreasonably.10 But because only OCS can
explain why it withheld consent, OCS must first provide its
reasons, in writing,11 for withholding consent.12 Thereafter, the
prospective adoptive parents have the burden of proving by clear
and convincing evidence that OCSs decision to withhold consent
was unreasonable. The superior court properly applied the clear
and convincing evidence standard.
But in this case, the proper test to determine whether
OCS was unreasonable in withholding its consent to the adoption
was not used. In its findings, the superior court focused
exclusively on the best interests of the children. The superior
court particularly emphasized that the adoption kept the siblings
together. The Donnes add that the proposed adoption would serve
the best interest factors of maintaining continuity given the
ages of the children and the length of time the children have
known the various parties.13 The Donnes argue that this best
interests analysis is sufficient to deem OCSs withholding of
consent to be unreasonable. We disagree and hold that the
statute requires an inquiry different from and independent of the
best interests analysis.
The statutory language guiding our review of OCSs
withholding of consent to adoptions is provided in AS
25.23.120(c). That provision expressly requires the trial court
to engage in two inquiries, one to determine whether the required
consents have been obtained or excused and the other to determine
whether the adoption is in the best interest of the person to be
adopted.14 OCS argues that these two steps are separate and that
focusing only on the best interests of the children conflates the
two prongs. We agree.
To explain why, we turn to our decisions in the
parental consent context. There we observed that [t]he statutory
scheme for adoption contemplates a separate determination of
whose consent must be obtained before the merits of a petition
for adoption are considered. The best interests of the child are
not relevant to a determination of whether a natural parents
consent can be dispensed with by the court.15 In In re Adoption
of L.A.H., we also rejected the contention that a fathers consent
could be dispensed with merely because doing so would be in the
best interests of the child.16 As OCS stands in loco parentis to
Missy and Cameron by virtue of the CINA proceeding,17 its consent
should be treated in a manner similar to parental consent.18
Therefore, the two-part test in AS 25.23.120(c)
requires that OCSs consent must have been excused for reasons
independent of the best interests analysis. Were it otherwise,
such that the unreasonableness of withholding consent were to be
judged by the best interests standard, then the two-part approach
of AS 25.23.120(c) would become extraneous and the inquiry
reduced to whether a particular adoption was in the best
interests of the child, without regard to the issue of consent.
Such a reading of the statute conflicts with the general rule of
statutory construction under which effect is given to all words
of the statute and none are rendered superfluous.19 Given that
the statutory language clearly establishes a two-part test, it
was error to conflate the two parts of the test by importing the
best interests standard into the consent determination.
But our clarification of this two-part test still
leaves the question of how to review the reasonableness of OCSs
withholding of consent. We have not previously addressed what
factors should be considered in deciding whether consent has been
unreasonably withheld by OCS. But the meaning of unreasonable
must first and foremost be defined by how closely OCS adheres to
its statutorily mandated role as a protector of children when
following its own rules and regulations.20 Second, the
reasonableness of OCSs decision must also be defined by the
sufficiency of the investigation into the facts undertaken by
OCS.21
Alaska Statute 25.23.050(a)(8) requires OCS to provide
a written statement of its reasons for withholding consent. OCS
provided an affidavit and supporting materials establishing both
that a report of harm had been substantiated and that the Donnes
license had been closed. As a result, OCS argues that it is
precluded from approving the Donnes as an adoptive home under 7
AAC 56.660(c). 7 AAC 56.660(c) provides, in relevant part:
(c) Except when placing a child under
emergency conditions, an adoption or
guardianship home may not be approved if a
person in the prospective adoption or
guardianship home has a disqualification
described in 7 AAC 56.210(b).
7 AAC 56.210(b) provides a list of disqualifications barring
persons from working or volunteering in a foster care agency.
OCS contends that the Donnes are disqualified under two
provisions of 7 AAC 56.210(b).
First, 7 AAC 56.210(b)(1) disqualifies a person if that
person is the alleged perpetrator of an incident of child abuse
or neglect in which the division found the evidence available
substantiates the allegation. In this case, two substantiated
reports of harm indicated that the Donnes had physically and
mentally abused children in their care. The first substantiated
report resulted in R.D. being required to engage in a corrective
plan. After completion of the plan, the Donnes were permitted to
retain their foster care license. The second substantiated
report of harm resulted in the removal of the foster children
present in the home. Once again a corrective plan was required
of R.D., but this time she refused to participate in the plan and
the Donnes relinquished their foster license. Although the first
report of harm was corrected and arguably no longer relevant for
the purposes of 7 AAC 56.210(b)(1), the second report of harm was
never corrected. OCS argues that the existence of an uncorrected
and substantiated report of harm disqualifies the Donnes for the
purposes of 7 AAC 56.210(b)(1).
Second, OCS argues that the Donnes were disqualified
under 7 AAC 56.210(b)(4) because they were the subject[s] of a
prior adverse licensing action of the kind described [in] AS
47.35.120(b)(5) - (7).22 Then-governing AS 47.35.120(b)(5) - (7)
refers to the non-renewal or revocation of a foster care license
or the issuance of an order requiring immediate closure of the
facility. OCS contends that because the Donnes cannot be
reissued a foster care license until they complete the plan of
correction that had been created after the second substantiated
report of harm, they have been the subject of a prior adverse
licensing action.
The Donnes respond that they do not fall within either
disqualification of 7 AAC 56.210(b). First, the Donnes argue
that they do not come within 7 AAC 56.210(b)(1) because their
conduct did not rise to the level of child abuse as defined by 7
AAC 56.210(k). 7 AAC 56.210(k) states that child abuse is
defined by AS 47.17.290(2), which provides:
[C]hild abuse or neglect means the physical
injury or neglect, mental injury, sexual
abuse, sexual exploitation, or maltreatment
of a child under the age of 18 by a person
under circumstances that indicate that the
childs health or welfare is harmed or
threatened thereby; in this paragraph, mental
injury means an injury to the emotional
well-being, or intellectual or psychological
capacity of a child, as evidenced by an
observable and substantial impairment in the
childs ability to function[.]
The Donnes argue that the disciplinary methods discussed in the
substantiated reports of harm do not rise to the level of child
abuse for the purposes of the statute. The superior court
implicitly agreed with this position by indicating that it did
not consider the Donnes disciplinary methods to be particularly
unusual.
But OCS is mandated by statute to make reasonable
efforts to protect children23 and its regulations do establish
standards for expected behavior on the part of a foster care
facility. 7 AAC 50.435(d)(3) states that children may not be
punished for bed-wetting or subjected to verbal abuse and
subsection .435(f) provides that corporal punishment may not be
used on children under the foster facilitys care. All these
forms of conduct were documented in the second substantiated
report of harm. By substituting its judgment on the propriety of
the Donnes disciplinary methods for that of OCS, the superior
court did not defer to agency expertise.24
Second, the Donnes respond that they were not subjected
to an adverse licensing action for the purposes of 7 AAC
56.210(b)(4) because they voluntarily relinquished their license
rather than being subjected to any kind of licensing action. But
although OCS never had to enforce its decision regarding the non-
renewal of the Donnes foster care license, it remains true that
OCS would be forced to deny renewal if the Donnes applied for a
license without completing the plan of correction.
On the issue of the foster care license, the superior
court took a different approach from that proposed by OCS and the
Donnes. It appeared to interpret the foster care licensing issue
as a technical, employment-related decision which could be
overcome by the best interests analysis. The superior court also
perceived a substantial difference between the standards that
applied to foster parents and adoptive parents, concluding that
foster parents were expected to be top notch trained
professionals, while parents could be held to a lower standard.
We disagree both with the trial courts view that the
Donnes lack of a foster care license is a mere technical
violation and with its application of a lower standard of
behavior to prospective adoptive parents. First, OCS has been
given the responsibility for the review and monitoring of foster
care facilities. Once OCS has taken legal custody of a child, it
is responsible for the determination of where and with whom the
child shall live.25 OCS is also given the responsibility to place
the child in a safe, secure, and stable environment26 and to
engage in a planning process . . . to lead to permanent placement
of the child.27 Therefore the licensing actions listed in AS
47.35.120(b)(5) - (7) are more than mere technical requirements.
They are closely tied to OCSs statutory responsibilities as well
as the safety and security of the children in its care.
Furthermore, recent amendments to the CINA statutes
under which OCS operates provide support for OCSs position that
its decisions on foster care licensing are considered by the
legislature to be determinative for the purposes of adoption.
For example, AS 47.10.088(I) mandates that OCS first approach
adult family members concerning their interest in adopting a
child in OCS custody, but OCS is released from this obligation if
the adult family member is known by the department to be
ineligible for a foster care license.28 OCS is also released from
its obligation to place a child with family members if it can
demonstrate good cause for not placing a child with that
relative.29 Evidence that the person requesting placement would
not qualify for a foster care license is prima facie evidence of
good cause to deny placement.30 Thus, since July 1, 2005 it has
been made explicit in the CINA statutes that a child should not
be placed for adoptive purposes with an individual or family
ineligible for a foster care license.
Second, we disagree with the view that the
qualifications of prospective adoptive parents are to be reviewed
under a lower standard than those of foster parents. We have
previously drawn a distinction between the kinds of homes into
which children can be placed in a CINA proceeding as opposed to
in an adoption proceeding and in so doing have held adoptive
homes to a higher standard. In In re Adoption of B.S.L., we
stated that [t]hrough an adoption proceeding a child may be
placed in a stable, permanent home; through a child-in-need-of-
aid proceeding a child may be placed in an environment which,
though uncertain, is preferable to the dangerous environment he
or she occupies.31 The reason an adoptive placement must be more
stable than a CINA placement is because an adoption proceeding
results in a permanent establishment of parental rights. As we
have previously noted, [a]n adoption proceeding operates to
replace a parent, while a child-in-need-of-aid proceeding
operates to emancipate a child from an offending parents legal
bonds.32 Because a permanent parent-child bond is established
through adoption proceedings, great care must be taken in
evaluating prospective adoptive parents.
And permanency is not the only concern. OCS monitors
its foster parents to ensure that children in their care are
provided with reasonable safety, adequate care, and adequate
treatment during the time they are wards of the state.33 But once
an adoption is complete, the adopting parents assume all the
legal rights and obligations of a natural parent.34 OCS can
therefore no longer monitor the relationship between the child
and the adoptive parents. Because OCS stands in loco parentis to
the children in its custody,35 it is the duty of the agency to
determine, to the best of its ability, that the home into which
one of its children is adopted is a good home, maintained by
parents of moral standing who are able to support, maintain, and
educate the child.36 It is in regard to this important role of
OCS that the legislature has precluded OCS from delegating its
authority to consent to adoption.37 It is also in fulfillment of
the duties attendant on this role that OCS requires prospective
parents to demonstrate attributes of emotional and economic
stability not required of a foster home.38
In this case, then, the record establishes that OCS was
precluded by its own rules and regulations from consenting to the
Donnes adoption petition and that those rules are of the sort
formulated to further OCSs mandate as a promoter of the safety,
security, and stability of child placements. Furthermore, OCS
provided evidence of its investigations of the reports of harm
sufficient to establish that its decision to withhold consent was
based on a reasonable inquiry into the facts of the case.
Therefore, we find as a matter of law that OCSs withholding of
consent was provisionally reasonable.
But the inquiry does not end at this point. As the
superior court correctly pointed out, a case may eventually arise
where the specific facts warrant the adoption despite OCSs
written reasons being facially reasonable in accord with the test
outlined above. OCSs plans for the adoption of the child are
akin to its placement decisions: both implicate agency expertise
and must be accorded due deference, yet both are also subject to
judicial review. In S.S.M. v. State, Department of Health &
Social Services, Division of Family & Youth Services, we pointed
out that an OCS placement decision is ultimately a matter for
superior court review.39 We have also noted that while the CINA
statutes do not allow the court itself to make a placement
decision affecting a child in OCS custody, the placement decision
made by OCS nevertheless remains subject to judicial review.40
Similarly, the substance of OCSs decision to withhold consent to
an adoption must still be subject to judicial review.
But the question remains as to what test and standard
of review is to be used, and who is to bear the burden of proof,
when the court finds OCSs written reasons to be facially
reasonable but simultaneously confronts facts suggesting that the
adoption may still be warranted. In determining that test, we
must remain aware of the deference due OCSs expertise in the
provision of child protective services. Therefore, the court
cannot simply substitute its own best interests evaluation in
reviewing OCSs reasons for withholding consent and a more
stringent standard is required.
A parallel standard that is more stringent may be found
in how we have negotiated between the general preference for
biological over non-biological parents in a contested custody
proceeding41 and those situations where the facts warrant an award
to the non-biological parent. In Turner v. Pannick, we
established that to overcome the presumption for custody in the
biological parent, the non-biological parent has the burden of
showing either that the biological parent is unfit or that the
welfare of the child requires it to be in the custody of the non-
parents.42 Turner further noted that the welfare of the child
test was satisfied if the non-biological parent could show that
it clearly would be detrimental to the child to permit the parent
to have custody.43 In Evans v. McTaggart, we further established
that the clear and convincing evidence standard, and not the
lower preponderance of the evidence standard, was required as to
dispositive findings in either prong of the Turner test.44
Similarly, we hold here that the presumption of deference due OCS
and the bar established by its facially reasonable withholding of
consent can be overcome only if the prospective adoptive parent
can show, by clear and convincing evidence, that it would be
clearly detrimental to the child to deny the adoption.
This standard is articulated differently and in a more
stringent fashion than the best interests analysis because we
wish to once again call attention to the dangers of too easily
overcoming the relevant presumption. Turner warned of a standard
so low as to allow a judge to overcome the presumption favoring
biological parents due to his or her personal disagreement with
the lifestyle or financial situation of the parents.45 The Turner
court alluded to Painter v. Bannister,46 in which the Iowa court
awarded custody to the minors grandparents because it disapproved
of the Bohemian lifestyle of the father.47 That warning was
repeated in McTaggart.48 Similarly, the presumption in favor of
deference to OCS is in danger of being too easily overcome
because of the judges personal disagreement with OCS over what
constitutes the childs best interests.49 That danger justifies
the imposition of the higher standard of proof.
Indeed, there is a good reason to require a higher
standard of proof in cases that implicate a presumption that
favors an administrative agency of trained professionals vested
with the statutory duty of acting in the best interests of the
child.50 Just as we require a higher standard of proof in
termination of parental rights proceedings because of the
irrevocable and permanent nature of those proceedings, so we
should also require a high standard of proof in adoption
proceedings that result in the equally irrevocable creation in
the adoptive parents of rights over a child and the removal of
that child from the care and monitoring of OCS.
Because in this case the proper statutory test was not
used in evaluating the reasonableness of OCSs withholding of
consent, and because we have determined that as a matter of law
OCSs written reasons for withholding consent were provisionally
reasonable in this case, a remand is necessary.51 On remand, the
superior court must determine whether the Donnes can show, by
clear and convincing evidence, that it would be a clear detriment
to the children to deny the adoption. In making this
determination, the superior court should take into account
present factual circumstances, including but not limited to the
potential effects on the children of the passage of time since
the adoption petitions were granted and the disciplinary methods
currently being used by the Donnes.
V. CONCLUSION
Because dispensing with OCSs consent was an abuse of
discretion, the petitions to adopt are VACATED and the case
REMANDED for further proceedings in light of this opinion.
_______________________________
1 Pseudonyms have been used to protect the privacy of the
parties.
2 The Donnes also filed a petition to adopt the third
sibling, D.L. (David), who is an Indian child whose placement is
subject to the provisions of the Indian Child Welfare Act. Since
a blood relative was interested in adopting David, the Donnes
withdrew their petition. The proposed relative adoption has
since fallen through and the Donnes have re-filed their petition.
The status of that adoption is not at issue in this case.
3 Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005);
see also AS 25.24.150(c).
4 In re Adoption of Bernard A., 77 P.3d 4, 7 (Alaska
2003).
5 Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).
6 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7 Fardig, 56 P.3d at 11.
8 That the person in subsection (a)(3) includes OCS was
established by In re W.E.G., 710 P.2d 410, 412 n.1 (Alaska 1985).
9 The relevant provision of AS 25.23.050(a) is as
follows:
(a) Consent to adoption is not required
of
. . . .
(8) a guardian or custodian specified
in AS 25.23.040(a)(3) or (4) . . . who, after
examination of the guardians or custodians
written reasons for withholding consent, is
found by the court to be withholding consent
unreasonably[.]
10 AS 25.23.050(a)(8). In Alaska, the clear and
convincing standard of the CINA statutes has been imported into
the adoption statutes by the courts. See In re Adoption of K.S.,
543 P.2d 1191, 1195 (Alaska 1975).
11 AS 25.23.050(a)(8).
12 See D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981)
(citing 9 J. Wigmore, Evidence 2486 (3d ed. 1940) for the
proposition that the party which can best explain why it acted or
failed to act must bear the burden of providing evidence of the
reasons for its behavior before the other party is required to
bear its burden of showing that reasoning to be unjustified).
13 The superior court stated that it was using the factors
listed in AS 25.24.150(c) to delineate the contours of the best
interests of the child standard.
14 AS 25.23.120(c) provides in full:
(c) If at the conclusion of the hearing
the court determines that the required
consents have been obtained or excused and
that the adoption is in the best interest of
the person to be adopted, it may issue a
final decree of adoption.
15 D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981).
16 In re Adoption of L.A.H. 597 P.2d 513 (Alaska 1979).
In In re Adoption of L.A.H., we said AS 20.15.120(c) [now AS
25.23.120(c)] requires the superior court to determine that the
required consents have been obtained or excused and that the
adoption is in the best interests of the child. Both of the
conditions must be met. 597 P.2d at 517 n.14. The two prongs of
the test to dispense with a parents lack of consent is analogous
to the judicially established two-part test used to determine
whether a parent has abandoned a child. See In re Adoption of
V.M.C., 528 P.2d 788 (Alaska 1974). In abandonment cases, it
must be established by clear and convincing evidence that (1) the
parent has engaged in conduct evidencing a conscious disregard of
parental obligations and (2) that the parent-child relationship
has been destroyed. Id. at 793. We noted that this second
factor could not overcome the first, even if it were in the best
interests of the child. Id. at 793 ([A]bsent a sufficient
finding of the requisite conduct, even a consideration of the
best interests of the child and a breakdown of the parent-child
relationship would be insufficient to support a finding of legal
abandonment.).
17 AS 47.10.084(a).
18 When a statute explicitly mandates the child protection
agencys consent, other jurisdictions have come to mixed
conclusions as to whether a court may override that consent and
grant the adoption in the best interests of the child. See,
e.g., Jane Mansey Draper, Annotation, Adoption of Child in
Absence of Statutorily Required Consent of Public or Private
Agency or Institution, 83 A.L.R. 3d 373 3(a), 3(b). But in
Alaska, the statutory directive is clear: if the two-part test of
AS 25.23.120(c) is not met, then the adoption itself fails. The
court may then direct custody arrangements of the child according
to subsection .120(d) and in the best interests of the child.
19 See Coughlin v. Government Employees Ins. Co. (GEICO),
69 P.3d 986, 994-95 (Alaska 2003).
20 In early cases of other jurisdictions, the statutory
requirement of reasonableness has been interpreted to require
reasons that are not arbitrary or capricious, In Re McKenzie, 266
N.W. 746 (Minn. 1936), or fanciful, Lee v. Thomas, 181 S.W.2d
457, 461 (Ky. 1944), or that do not look out for the best
interests of the child, In Re Adoption of Reinius, 346 P.2d 672
(Wash. 1959). More recent cases continue to emphasize that the
reasons given by the child protective agency must be of a
substantive nature. See, e.g., In re M.L.M., 926 P.2d 694 (Mont.
1996) (holding that agencys refusal to consent to adoption is
subject to judicial scrutiny for determination of whether that
refusal was arbitrary, capricious, or unreasonable); In re
Cotton, 526 N.W.2d 601 (Mich. App. 1994) (holding that petitioner
had burden of showing by clear and convincing evidence that child
protection agency representative acted arbitrarily or
capriciously).
21 See, e.g., Bland v. Dept of Children & Family Servs.,
490 N.E.2d 1327 (Ill. App. 1986) (determining that department
withheld consent unreasonably when its investigation into the
facts was inadequate); In Re Adoption of Shields, 89 N.W.2d 827
(Wis. 1958) (holding that it would be arbitrary and capricious to
withhold consent if the guardian had no reasonable basis in fact
for believing that the proposed adoption would be contrary to the
childs best interests).
22 Since repealed as part of the amendments to the CINA
statutes effective July 1, 2005. Ch. 57, 50, SLA 2005.
23 AS 47.05.065(2).
24 We review an agencys interpretation of its own
regulations using the reasonable basis test. Handley v. State,
Dept of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). The test is
not demanding: [W]here an agency interprets its own regulation .
. . a deferential standard of review properly recognizes that the
agency is best able to discern its intent in promulgating the
regulation at issue. Id.
25 AS 47.10.084(a).
26 AS 47.05.065(4)(A).
27 AS 47.05.065(4)(C).
28 The 2005 amendments added the second through fourth
sentences of AS 47.10.088(I) and were effective July 1, 2005.
29 AS 47.14.100(e) (effective July 1, 2005).
30 AS 47.14.100(m) (effective July 1, 2005).
31 779 P.2d 1222, 1226-27 (Alaska 1989).
32 Id. at 1226.
33 AS 47.05.065(3).
34 In re Pierces Estate, 196 P.2d 1, 3-4 (Cal. 1948), see
also 2 Am. Jur. 2d Adoption 170, 171.
35 AS 47.10.084(a).
36 Draper, 83 A.L.R.3d 373 2(a); see also AS 47.10.086(b)
(mandating that OCS make reasonable efforts to find a permanent
placement for the child if returning to the parental home is
deemed not to be in the childs best interests).
37 AS 47.10.084(a).
38 Before placing a child in an adoptive or guardianship
home, OCS must undertake a home study. 7 AAC 56.610(a)(4). The
home study is to be undertaken according to the requirements of 7
AAC 56.660. Id. Section 56.660 contains a lengthy list of the
proper elements that constitute a home study, including an
investigation into the financial and emotional stability of the
prospective parents as well as their place in the community.
39 3 P.3d 342, 346 & n.13 (Alaska 2000).
40 In re B.L.J., 717 P.2d 376, 380 (Alaska 1986).
41 Hickey v. Bell, 391 P.2d 447, 448 (Alaska 1964)
(providing the first statement of the preference in Alaska for
biological parents in a contested custody proceeding unless
parent is shown to be unfit or the welfare of the child requires
it to be placed with the non-parent).
42 540 P.2d 1051, 1053 (Alaska 1975).
43 Id. at 1054.
44 Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
45 Turner, 540 P.2d at 1054-55.
46 140 N.W.2d 152 (Iowa 1966).
47 Turner, 540 P.2d at 1055.
48 McTaggart, 88 P.3d at 1085.
49 In this case, the trial judges comment that he didnt
hear anything going on in the [Donne] household that [he] didnt
either experience or observe as a child, is an example of a judge
giving more weight to his own personal experience rather than
deferring to OCSs expertise in the evaluation of disciplinary
methods.
50 See, e.g., AS 47.10.086(b); AS 47.10.088; AS 25.23.005.
51 In the interim, the trial court may make custody
determinations in the best interests of the child under AS
25.23.120(d). An order made pursuant to subsection .120(d) does
not create a foster care arrangement and therefore the person
taking interim custody does not need to have satisfied OCSs
foster care licensing requirements. In re Adoption of L.E.K.M.,
70 P.3d 1097, 1102 (Alaska 2003). Although the legislature has
determined that the court may not direct placement in CINA
proceedings, In re B.L.J., 717 P.2d 376, 379 (Alaska 1986), here
subsection .120(d) provides explicit statutory authority allowing
the court to direct custody decisions once the petition for
adoption has failed to meet the requirements of subsection
.120(c).
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