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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

In the Matter of the Adoption of Missy M. (04/14/2006) sp-6001, 133 P3d 645

     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,


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.

          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.
          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.
          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
          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
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
          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
          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.
          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

     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

     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

               (a)  Consent to adoption is not required
               . . . .

               (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
     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

     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

     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

     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

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