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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Samuel H v. State, Office of Children's Services (02/08/2008) sp-6229
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
| SAMUEL H. | ) |
| ) Supreme Court No. S- 12610 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-00314 CN |
| ) | |
| STATE OF ALASKA, OFFICE | ) |
| OF CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6229 - February 8, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: G. Blair McCune, Anchorage, for
Appellant. Michael Hotchkin, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
A father, Samuel, appeals the superior courts
termination of his parental rights to his daughter Georgia.1 The
Office of Childrens Services (OCS) started Child in Need of Aid
(CINA) proceedings shortly after Georgia was born cocaine-
positive. OCS placed Georgia with Loretta, her maternal
grandmother. Georgias mother, Sylvia, subsequently relinquished
her parental rights. Except for a period of thirty-five days,
Samuel has been incarcerated since Georgia was born, but he was
in contact with Sylvia and both maternal grandparents concerning
the birth and arrangements for the childs care. OCS successfully
petitioned the superior court to terminate Samuels rights so that
Loretta could permanently adopt Georgia. Samuel appeals the
superior courts termination order, arguing that the court erred
in: (1) finding that he failed to make adequate provisions for
Georgia during his incarceration, and (2) holding that
termination of Samuels parental rights was in Georgias best
interest. Because the superior court did not make findings that
are sufficiently specific to support the conclusion that Samuel
failed to make arrangements for his daughters care upon her
birth, we vacate the termination of his parental rights and we
remand to the superior court for further findings.
II. FACTS AND PROCEEDINGS
A. Facts
Sylvia gave birth to Georgia on September 21, 2004.
When Georgia was born, Samuel was serving time in prison for
domestic violence assault. Because Georgia was born cocaine-
positive, OCS became involved. Samuel testified that he knew
that OCS was likely to take custody of Georgia upon her birth.
Accordingly, he and Loretta, Georgias maternal grandmother,
arranged that Loretta would care for Georgia because Sylvia was
unable to care for Georgia and Samuel was in prison. Although
Georgia was not immediately removed from Sylvias care, Loretta
cared for the baby as Sylvia was living with her at the time.
OCS developed a case plan for Sylvia, who admitted to
using drugs both during and after her pregnancy. Sylvia failed
to comply with any aspect of the case plan, including the random
urinalysis (UA) tests.
Upon discovering that Sylvia had left Lorettas home and
taken Georgia with her for several days, and that she continued
to use drugs, OCS petitioned for removal and placed Georgia in
Lorettas care. OCS did not consult Samuel about this placement.
OCS also considered Samuels mother for Georgias placement, but
ultimately decided to place the baby with Loretta so that Sylvia,
who also lived with Loretta, would have an opportunity to bond
with Georgia. OCS testified that it also decided to place the
child with Loretta, instead of Samuels mother, because paternity
had not yet been officially established. Samuel, who testified
that he had been on the telephone during Georgias birth, never
contested paternity and was officially identified as the father
in June 2005.
While Samuel was in prison, Sylvia brought Georgia to
visit him several times. Shortly after Georgias birth, Samuel
was released from prison. He remained out of jail for thirty-
five days. During this time, Georgia continued to live with
Loretta. Samuel visited Georgia and bought supplies for her care.
Samuel estimates that he spent about $350 to $400 on Georgia
during his time out of prison.
In October 2005 Samuel was indicted on federal drug
charges. Before Samuel was transferred to federal prison outside
of Alaska, Loretta brought Georgia to visit him on three
occasions. Samuel pled guilty to one count of cocaine
distribution. The federal court sentenced Samuel to 108 months
(nine years). Under that sentence, Samuel would not be released
until 2014. According to Samuel, his new projected release date
is December 2012. Samuel testified that he most likely will be
released eighteen months earlier than the projected release date
due to participation in a drug treatment program prescribed by
the judge in his criminal case. By Samuels earliest possible
release date, summer 2011, Georgia will be six years old.
While Samuel was in prison, OCS formulated a case plan
for Georgias care. The plan directed Samuel to comply with any
legal requirements, [Department of Corrections] requirements, or
federal requirements regarding his criminal case. Samuel thus
far has been compliant with this case plan. OCSs social worker
testified that if and when hes released, [OCS will] probably
develop a new case plan which will state he will do the
assessment, substance abuse, parenting, domestic violence
classes, and so forth. While incarcerated, Samuel has complied
with the departments order that he pay fifty dollars per month in
child support.
Before the termination trial, Sylvia continued to
suffer with substance abuse issues. She spent time in a drug
detox center and a drug addiction treatment center. She left the
drug treatment center against treatment advice after three days.
Sylvia subsequently relinquished her parental rights in April
2006. The court legally terminated Sylvias rights to Georgia in
April 2007.
Although Samuel refused to relinquish his parental
rights as Sylvia had, Samuel supported OCSs placement of Georgia
with her grandmother Loretta and approved of Lorettas proposed
adoption of Georgia. OCS also endorses adoption by Loretta and
reported that the placement is appropriate and meets the childs
best interests.
B. Proceedings
OCS first became involved in Georgias case in October
2004 when it filed an Emergency Petition for Adjudication of
Child in Need of Aid and for Temporary Placement. In August 2005
the court held a hearing in the CINA case. Sylvia did not attend
the hearing and her whereabouts were not known at the time.
Samuel participated telephonically from prison. Samuel argued
that the CINA proceedings and OCSs involvement were not necessary
because Georgia was already placed with a relative whos
appropriate and willing to care.
The court found that Georgia was a child in need of aid
because (1) she was abandoned by Sylvia, (2) Samuel was
incarcerated and failed to provide adequate arrangements for
Georgia while he was away, (3) Sylvia and Samuel neglected to
provide adequate support for Georgia, and (4) Sylvia exposed
[Georgia] to a substantial risk of harm by the drug use. The
court further held that OCS made reasonable efforts to prevent
the removal of Georgia from her home. The court granted
temporary custody of Georgia to OCS.
Following the CINA hearing, the state initiated
proceedings to terminate Samuels parental rights. Trial in
Samuels case took place in May 2006. (No termination for Sylvia
was necessary as she voluntarily relinquished her parental
rights.) The court heard testimony from two witnesses, Samuel and
OCSs social worker. In her closing remarks, counsel for Samuel
argued that OCS had not made reasonable efforts to keep the child
with her family and therefore the state failed to meet its
burden. The court, troubled that OCS had not earlier sought a
ruling relieving the department from making reasonable efforts,
asked both parties to brief whether OCS was required to make such
efforts under the statute. After reviewing the briefing of each
party, the court ruled that OCS had not made reasonable efforts,
but that reasonable efforts were not required pursuant to the
termination statute, AS 47.10.086(c)(10).
Trial resumed following the courts ruling. The parties
each presented further argument, but did not present new
evidence. The court orally found that it was in Georgias best
interest for Samuels parental rights to be terminated based in
part upon the fact that she is entitled to permanency and also
based upon the fact that adoption cannot go forward until
[Samuel]s rights are terminated. The court followed up with a
written order in January 2007. Samuel appeals the termination of
his parental rights.
III. STANDARD OF REVIEW
In a CINA case, we will affirm factual findings of the
superior court so long as they are not clearly erroneous.2 We
will find that a holding is clearly erroneous if our review of
the entire record leaves us with a definite and firm conviction
that the superior court made a mistake. Whether the superior
court's factual findings comport with the requirements of the
CINA statutes is a question of law that we review de novo.3
IV. DISCUSSION
The court terminated Samuels parental rights pursuant
to AS 47.10.080(c) and AS 47.10.088. Alaska Statute 47.10.080(c)
provides that upon a finding that a child is in need of aid, the
court may terminate the parents rights and order the child
committed to OCS. Alaska Statute 47.10.088 prescribes the method
for terminating an incarcerated parents rights.
A. In the Absence of Specific Findings that Samuel Was Not
Credible or that His Testimony that He Arranged for
Sylvias Care Was Not Reliable, It Was Error To Conclude
that Samuel Failed To Make Adequate Provisions for
Georgia During His Incarceration.
Alaska Statute 47.10.088(a) allows for the termination
of a parents rights if (1) the child has been subject to one of
the conditions laid out in AS 47.10.011, (2) the parent has not
remedied the conditions that placed the child in harm, and (3)
the state has made reasonable efforts pursuant to AS 47.10.086.
Samuel does not appeal and, therefore, waives the reasonable
efforts issue. He only appeals whether the court erred in
finding that Georgia was subjected to a condition that caused her
to be a child in need of aid.4
Alaska Statute 47.10.011(2) provides a basis for
termination if a parent, guardian, or custodian is incarcerated,
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, and the incarcerated parent has not made
adequate arrangements for the child. Samuel does not contest the
first two conditions of AS 47.10.011(2); he concedes that he is
currently incarcerated and that Sylvia is an absent parent.
Samuel argues that the superior court erred in finding
that he failed to make adequate provisions for care of the child
during the period of incarceration that will be during the childs
minority. He points to three facts that he purports demonstrate
how he made adequate provisions for Georgia. Samuel contends
that his regular payment of child support, his provision of goods
for Georgia during the thirty-five days of her life that he was
not incarcerated, and his approval of her placement with her
maternal grandmother collectively constitute adequate provisions.
The state argues that these actions do not amount to adequate
arrangements.
Only two published Alaska cases parse the meaning of
adequate arrangements: Stanley B. v. State5 and T.F. v. State,
Department of Health & Social Services.6 In Stanley B., OCS
moved to terminate parental rights under AS 47.10.080(c), a
statute that allows for termination of an incarcerated parent
under the same grounds as AS 47.10.088 but does not require the
state to make reasonable efforts.7 Like Samuel, Stanley, the
incarcerated father in Stanley B., did not contest that his
incarceration amounted to a significant time away from his
children and that the other parent was absent from his childrens
life.8 Stanley appealed only the courts finding that he had
failed to provide adequate arrangements. Stanley argued that
because his children were already in the care of the department
at the time of his incarceration, he was not obligated to make
adequate arrangements for their care.9 Stanley also argued that
even if he were required to make adequate arrangements, he had
done so by providing the department with a list that named
relatives who could care for his children.10 We rejected both
arguments.
On the first, we held that the fact that the children
were already in the departments care upon Stanleys arrest did not
relieve Stanley of the requirement to provide adequate
arrangements for his children. We noted that Stanleys
interpretation would give an advantage to parents who are
arrested when their children are already in state custody over
parents who are arrested when they had custody.11 We then
considered Stanleys argument that he had adequately arranged for
his children in his absence under AS 47.10.088(c) by providing to
the department a list of relatives willing to care for his
children.12 The department, however, had found that none of the
relatives submitted by Stanley to care for his children was
appropriate.13 We concluded that because Stanley did not provide
feasible options for the placement of his children he did not
satisfy the third prong of AS 47.10.088(o).14 Stanley B. requires
incarcerated parents to take affirmative steps to arrange
appropriate and feasible care options independent of department
action. The issue in this case is whether Samuel took such
affirmative steps.
In reviewing this issue, we have noted testimony by
Samuel that, if true, would support a finding that he took
affirmative steps to make adequate arrangements for Georgia upon
her birth. During his termination hearing, Samuel testified that
he played a role in determining Georgias placement from her
birth. He testified that he was on the phone for her birth,
while his mother and Loretta were at the hospital to support
Sylvia and Georgia. His mother, knowing that OCS was likely to
take custody of Georgia because of Sylvias drug troubles, called
Loretta to take Georgia. Samuels testimony, if credible, shows
that he participated in arranging for Georgia to be placed with
Loretta before OCS placed the child with her grandmother:
Q: When [Georgia] was first born and was
first taken into OCS custody . . . did you
have a placement option for her?
A: . . . My mom knew what was going to happen
. . . [W]e talked about a a placement either
with my mom or with [Loretta]. You know, we
were all discussing it as a family. . .
[W]ere all uniform. We talked with each
other . . . .;
Q: Okay. So its . . . your position in the
beginning and its still your position that
there were arrangements made so that . . .
she could be taken care of.
A: . . . With the courts, it sounds like they
wanted me to call OCS to make an arrangement,
but, see, me, Ive never been in this
situation, so of course, ultimately, Im just
going to call my mom or Im going to call
[Loretta] and, like, hey, you know this is
what we need to with [Georgia] . . . I didnt
call down there and find out who the social
worker is right away and go that way. Maybe
I should have, but, you know, I made
arrangements in my way.
Samuel may not have made formal arrangements with OCS, but his
testimony indicates that he did make arrangements in the only way
he knew how by arranging with his family members to assure that
Georgia had a safe home in the care of someone other than the
babys drug-addicted mother. To require any more formality would
impose a substantial and unnecessary burden on incarcerated
parents, who may not have access to attorneys or the court system
to instruct them on how to protect their legal relationship with
children in their absence. In the CINA hearing, the state argued
that Samuel should have (1) arranged to have Loretta appointed
the legal guardian, (2) signed a power of attorney to Loretta for
Georgias care, or (3) otherwise given Loretta legal authority to
care for Georgia. The state further argues that Samuel could
have suggested contingent placements in the event that the
placement with Loretta did not work out. We decline to hold that
adequate arrangements under AS 47.10.080(c) includes the
requirement that an incarcerated parent must follow a formal
procedure to initiate legal proceedings to formalize arrangements
made for the child and make alternative plans merely because the
parents plans overlap with OCSs arrangements. An arrangement is
adequate if, when followed, it will provide for the care of the
child. If Samuels testimony concerning this point, therefore, is
true, he did make adequate arrangements for Georgia.
Samuels testimony on his participation in the placement
of Georgia with Loretta was not rebutted in his termination
hearing. The superior court, in its order, did not make factual
findings on Samuels credibility or the evidence he submitted.
The courts only finding on the issue of adequate provisions was
conclusory: Samuel has failed to make adequate provisions for
care of the child during the period of incarceration that will be
during the childs minority. We must, therefore, review a
superior courts order that does not contain specific findings
relevant to the issue on appeal.
We have confronted this issue before in several
different legal contexts and concluded that it is not the role of
an appellate court to make findings of credibility.15 When a
trial court discredits a witnesss testimony but fails to make
specific findings on credibility we will remand to the trial
court to make such findings or to reverse its decision. In
Brooks v. Brooks,16 the superior court entered an order dividing
assets between a husband and wife that did not credit the husband
with assets that his accountant testified were owned by the
husband prior to the marriage.17 In reviewing the order, we found
[t]he trial court made no credibility findings and there is
absolutely no indication as to what weight it accorded this
evidence.18 Accordingly, we vacated that portion of the order and
remanded to the superior court with instructions to either make
findings that support its conclusion or reverse its prior order
to comport with the uncontested testimony.19
In the torts context, we addressed a similar issue in
Graham v. Rockman.20 In Graham, we remanded in part where the
trial court stated broadly that the alleged tortfeasor had no
defenses to such liability.21 The superior court failed to make
any further findings regarding the appellants defenses.22 We
remanded, holding that we were unable to determine whether the
trial court specifically judged this issue, and if so, whether he
considered that the defense failed due to a legal theory or
inadequate proof of requisite facts.23 We noted that trial courts
must follow Civil Rule 52(a), which requires that judges make
factual findings to support legal conclusions, and emphasized the
importance of specific factual findings for appellate review.24
These cases are not aberrant.25 We can review legal
conclusions only when the trial court has made sufficiently
detailed factual findings to support those legal conclusions.
Without explicit findings on Samuels credibility or factual
findings on Samuels testimony that he arranged, along with his
mother and Loretta, to place Georgia in Lorettas care, we are
unable to review the superior courts conclusion that Samuel
failed to make adequate provisions. We remand to the superior
court to make findings as to this specific portion of the
evidence.
B. It Is Not Necessary To Reach the Issue of Georgias Best
Interests.
As we are remanding the issue of adequate arrangements
to the superior court, it is unnecessary to reach the best
interests of the child issue.
V. CONCLUSION
Because the superior court did not make factual
findings on the credibility of the fathers testimony and because
his testimony, if believed, demonstrates that he did make
adequate arrangements for his daughter, we VACATE the superior
courts termination of the fathers parental rights. We REMAND to
the superior court for further proceedings consistent with this
opinion.
_______________________________
1 In order to protect the privacy of the parties, we use
pseudonyms.
2 Erika A. v. State, 66 P.3d 1, 6 (Alaska 2003).
3 Burke P. v. State, 162 P.3d 1239, 1242-43 (Alaska 2007)
(internal citations omitted).
4 As the second prong of the test turns on establishing
one of the conditions outlined in the first prong, we do not need
to reach this prong because Samuel only argues that the condition
never existed and therefore there is no condition to be remedied.
5 93 P.3d 403 (Alaska 2004).
6 26 P.3d 1089 (Alaska 2001).
7 93 P.3d at 406; AS 47.10.080(c).
8 93 P.3d at 406.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 See, e.g., State v. Adams, 145 P.3d 590, 591 (Alaska
2006) (finding court of appeals erred in substituting its own
judgment as to credibility of witness); Anthony v. State, 521
P.2d 486, 492 (Alaska 1974) (The assessment of witness
credibility is exclusively within the province of the [fact
finder].).
16 733 P.2d 1044 (Alaska 1987).
17 Id. at 1052.
18 Id.
19 Id.
20 504 P.2d 1351 (Alaska 1972).
21 Id. at 1354-55.
22 Id.
23 Id.
24 Id.
25 See, e.g., Bakke v. State, 744 P.2d 655, 656 (Alaska
1987) (From the record and findings before us, we are unable to
determine the basis of the trial court's decision. . . .
Accordingly, we remand this action with instructions that the
trial court either support its conclusion . . . or dismiss the
action in favor of the State.); Murray v. Murray, 856 P.2d 463,
466 (Alaska 1993) (remanding for findings sufficiently detailed
and explicit to give us a clear understanding of the trial courts
decision).
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