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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Angelica C v. Jonathan C, Angelica C v. Jonathan C (3/20/2020) sp-7433
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANGELICA C., )
) Supreme Court Nos. S-16874/17093
Petitioner, ) (Consolidated)
)
v. ) Superior Court No. 1JU-13-00945 CI
)
JONATHAN C., ) O P I N I O N
)
Respondent.
) No. 7433 - March 20, 2020
)
)
ANGELICA C.,
)
)
Appellant, )
)
v. )
)
JONATHAN C.,
)
)
Appellee. )
)
or Review in File No. S-16874 and appeal in File
Petition f
No. S-17093 from the Superior Court of the State of Alaska,
First Judicial District, Juneau, Louis J. Menendez, Judge.
Appearances: Angelica C., pro se, Petersburg,
Petitioner-Appellant. Fred W. Triem, Petersburg, for
Respondent-Appellee. Michael P. Heiser, Ketchikan, for
Intervenors Miles C. and Tonya C. Christine Oberholtzer,
Anchorage, for Amicus Curiae Alaska Network on Domestic
Violence and Sexual Assault. Brooke Berens, Assistant
Public Advocate, and Chad Holt, Public Advocate,
----------------------- Page 2-----------------------
Anchorage, for Amicus Curiae the Office of Public
Advocacy. Anna R. Jay, Assistant Attorney General,
Anchorage,and JahnaLindemuth,Attorney General,Juneau,
for Amicus Curiae State of Alaska.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
A 19-year-old man had a sexual relationship with a 13-year-old girl and
she became pregnant. The man pleaded guilty to attempted sexual abuse of a minor in
the second degree. While the man was incarcerated the girl gave birth to their son.
When the girl was 17, she was arrested and sent to a juvenile correctional facility. A
dispute arose over custody of the child and the superior court ultimately entered a
custody order based on the parents' stipulation. The mother was to have primary
physical custody and the father would have regular visitation.
After the mother's living situation became unstable, the father sought to
modify the custody order. Those proceedings, which included an earlier appeal to this
court, resulted in two orders of relevance here. First, the mother sought to terminate the
father's parental rights because his paternity was rooted in a criminal sex act. The
superior court rejected the mother's interpretation of former AS 25.23.180(e) - which
describes an "independent proceeding" for the termination of parental rights of sexual
abusers - and dismissed her petition. She filed a petition for review of this decision,
which we granted. Meanwhile, the superior court continued with the father's motion to
modify custody and ultimately awarded sole custody to the father - with visitation for
the mother and both sets of grandparents - after concluding that he had overcome the
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domestic violence presumption that would otherwise bar his custody. The mother
appeals that order.
We consolidated the petition for review and appeal for oral argument and
decision. We conclude that in the termination case the superior court erred by rejecting
the mother's petition to terminate the father's parental rights, and in the custody case it
erred by failing to properly integrate the father's sexual abuse of the mother into its best
interests analysis for awarding custody. We reverse both orders and remand the case for
the superior court to re-examine the petition to terminate parental rights and - if the
father's parental rights are not terminated - to conduct a new best interests analysis to
determine custody.
II. FACTS AND PROCEEDINGS
A. Background Facts
When Jonathan C. was 18 and 19 years old he had an ongoing sexual
relationship with 13-year-old Angelica C., who became pregnant. Jonathan pleaded
guilty to attempted sexual abuse of a minor in the second degree, and he was incarcerated
when Anglica gave birth at age 14 to a son, J.T., in March 2010. Jonathan was released
in March 2011.
In December 2012, when Angelica was 17, she was arrested for theft,
criminal trespass, and resisting arrest, and she remained in custody until she was released
from McLaughlin Youth Center in April 2014. Her parents - Miles and Tonya C. -
cared for J.T. in her absence, and they petitioned for guardianship of their grandson in
January 2013. Jonathan opposed Angelica's parents' petition, and in December 2013 he
initiated a separate action seeking custody of J.T. The cases were consolidated, and
Angelica's parents ultimately withdrew their petition for guardianship. Jonathan and
Angelica avoided trial in the custody case by reachinga compromise -primary physical
custody to Angelica, regular visitation for Jonathan, and shared legal custody - and in
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September 2014 the superior court issued a custody order based on this stipulated
agreement.
B. Custody Proceedings
1. The 2016 custody order
At the time of the stipulated order, Angelica lived in Haines and Jonathan
lived in Petersburg. By late 2014 Angelica and J.T. moved to Petersburg. Angelica's
parents remained in Haines, and Angelica struggled to support J.T. on her own.
According to the guardian ad litem in the case, Angelica "had no money, at times no
food, and she was staying in an apartment frequented by drug addicts." The guardian ad
litem filed a report of harm with the Office of Children's Services, and Angelica agreed
to a safety plan placing J.T. with Jonathan's father, Victor T., and Victor's wife. Victor
cared for J.T. intermittently during this time. He also allowed Angelica to work at his
restaurant, and on several occasions he provided food to Angelica and her then-
boyfriend.
In March 2015 Angelica placed J.T. with her parents in Haines, but she
remained in Petersburg. In September 2015 Jonathan moved to modify the custody
arrangement. At a hearing in January 2016 the superior court received evidence that
Angelica lacked a stable residence, that she remained unemployed and depended on
others for food, and that her appearance and conduct indicated that she was abusing
drugs. Angelica was unable to rebut this testimony because she failed to appear at the
January hearing or show good cause for her absence.
While the court had many reasons to not place J.T. with Angelica, it also
identified problems with granting custody to Jonathan. He was between jobs, had a
three-month old child with a new partner, and remained on probation. The special
master assigned to the case found that Jonathan had a history of perpetrating domestic
violence based on his repeated acts of sexual abuse against Angelica, making him
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1
presumptively ineligible for custody. The superior court was uncertain whether this
analysis was sound. It explained:
At this point in the litigation, the court questions applicability
of that finding based on this record and finds either that the
presumption [against granting custody based on domestic
violence] has been rebutted, waived, or mooted out by
agreement of the parties on September 19, 2014. This issue
may be re-examined in the future. Regardless, the court is
not awarding custody to [Jonathan].
In July 2016 the court granted custody to Victor.
Angelica appealed, and we reversed the custody order because she had not
been given adequate notice that Victor - a non-parent who was not a formal party to the
2 The court determined that both Angelica
custody case - might receive custody of J.T.
and Jonathan were unable at the time to care for J.T. The court did not grant non-parent
custody to Angelica's parents because of their history of "hostility" toward Jonathan,
which included violating an agreement to return J.T. to Jonathan's care after a visit with
them.
2. The 2016 petition to terminate parental rights
Shortly before the superior court awarded custody to Victor in July 2016,
Angelica filed a petition in the custody case to terminate Jonathan's parental rights. She
1 See AS 25.24.150(g) ("There is a rebuttable presumption that a parent who
has a history of perpetrating domestic violence . . . may not be awarded [custody].");
AS 25.24.150(h) ("A parent has a history of perpetrating domestic violence . . . if the
court finds that . . . the parent has engaged in more than one incident of domestic
violence."); AS 25.90.010 (adopting for Title 25 the definition of domestic violence
found in Title 18); AS 18.66.990 (defining "domestic violence" to include "an offense
. . . or an attempt to commit [an] offense" such as "a crime against the person under
AS 11.41"); AS 11.41.436(a) (defining sexual abuse of a minor in the second degree).
2 Angelica C. v. Jonathan C. , No. S-16434 (Alaska Supreme Court Order
Aug. 2, 2017) (citing Elton H. v. Naomi R., 119 P.3d 969, 980 (Alaska 2005)).
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based her petition on former AS 25.23.180(e), which allowed the filing of a petition to
terminate parental rights in an "independent proceeding" in cases of sexual abuse of a
3 The court stayed the termination petition
minor that resulted in conception of a child.
pending our decision on the appeal from its custody order.
On remand after we issued our decision, the superior court denied
Angelica's petition to terminate Jonathan's parental rights. The court relied on language
in former AS 25.23.180(c) that referred to termination "by a court order issued in
connection with a proceeding under this chapter or a proceeding under AS 47.10."4
Because the case before the superior court was a custody case, rather than an adoption
case under AS 25.23 or a child in need of aid (CINA) proceeding under AS 47.10, the
court concluded that the statute did not permit it to terminate Jonathan's parental rights.
Angelica filed a petition for review, which we granted.
3. The 2018 custody order
After denying Angelica's petition to terminate Jonathan's parental rights,
the superior court proceeded with the custody case.5
Angelica and Jonathan each sought
to increase custody for themselves or their parents and to limit the other to visitation.
Angelica's parents emphasized the harmcaused by Jonathan's sexual abuse of Angelica,
and Angelica testified that Jonathan had broken his promises to be an involved father to
J.T. Angelica and her parents also noted that they had been the primary caregivers for
J.T. from infancy until he was placed with Victor in 2016, and they argued that J.T.
3 Former AS 25.23.180(c)(3), (e) (1987), amended by ch. 24, § 12, SLA
2018.
4 Former AS 25.23.180(c) (1987), amended by ch. 24, § 12, SLA 2018.
5 On appeal Angelica assigns error to several of the superior court's orders
during this period. Because we are remanding the case on other grounds, we do not
address her arguments or describe the facts underlying them.
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would benefit from the consistency of returning to their care. Jonathan contended that
Angelica was unfit to parent J.T. due to her lack of employment, dependence on her
parents, and substance abuse issues. He also contrasted the cooperativeness he and
Victor had shown with the antagonism Angelica and Miles C. had displayed. The
guardian ad litem's analysis was similar to Jonathan's, and she recommended that
Jonathan be granted sole legal and primary physical custody.
In April 2018 the superior court granted Jonathan sole legal and primary
physical custody, pending his completionofabatterers' interventionprogram. The court
recognized that Alaska law presumes that custody may not be awarded to a parent who
has a history of perpetrating domestic violence unless that parent satisfies certain
6 But the court was skeptical that Jonathan's conviction for attempted
requirements.
sexual abuse of a minor made him a domestic violence perpetrator:
The court remains as dubious today as it was in 2016 that
[Jonathan]'s conviction is applicable to finding that he has a
history of perpetrating domestic violence within the meaning
of AS 25.24.150. However, it is better that the court proceed
withcaution than that it reject [Angelica's parents'] argument
and jeopardize the viability of this custody order. The court
accepts that [Jonathan]'s conviction triggers the rebuttable
presumption that he is disqualified from having custody
because of a history of perpetrating domestic violence.
[Jonathan] can rebut that presumption by providing proof he
has completed a batterers' intervention program.
6 See AS 25.24.150(g) ("There is a rebuttable presumption that a parent who
has a history of perpetrating domestic violence . . . may not be awarded [custody.]");
AS 25.24.150(h) ("The presumption may be overcome by a preponderance of the
evidencethat theperpetrating parent has successfully completedanintervention program
for batterers, where reasonably available, that the parent does not engage in substance
abuse, and that the best interests of the child require that parent's participation as a
custodial parent . . . .").
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Thecourt later concluded that aparenting course Jonathan completed whileincarcerated,
combined with counseling dating back to 2014, was an adequate substitute because no
batterers' intervention programs were available in Petersburg. In June 2018 the court
awarded Jonathan immediate custody.
The court's discussion of the custody issue included extensive factual
findings and a factor-by-factor best interests analysis. The court found that every best
7 While acknowledging that
interests factor either favored Jonathan or was neutral.
"Angelica's life seems to be improving," the court noted that "Angelica has mental
health issues, including anxiety and depression. She has struggled with homelessness,
unemployment, and substance abuse." The court concluded that Angelica was "in no
7 AS 25.24.150(c) directs the court to consider nine best interests factors.
The following four factors were most relevant to the court's analysis:
(2) the capability and desire of each parent to meet [the
child's] needs;
. . . .
(6) the willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child
neglect in the proposed custodial household or a history of
violence between the parents; [and]
(8) evidence that substance abuse by either parent . . . directly
affects the emotional or physical well-being of the child . . . .
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8
position to assume primary responsibility" for J.T. becauseshecouldnot meet his needs.
One of the best interests factors is each parent's willingness to foster a
9 The court stated that it did not hold
relationship between the child and the other parent.
it against Angelica that she had petitioned to terminate Jonathan's parental rights, but it
did find that she and her parents wanted to limit or eliminate Jonathan's involvement in
J.T.'s life. Another factor is the parents' history of domestic violence.10 The court made
findings on the absence of domestic violence in the parents' respective homes, but it did
not acknowledge and weigh Jonathan's sexual abuse of Angelica. Because the court
found that the balance of the best interests factors favored Jonathan, the court awarded
primary physical custody to Jonathan; it also awarded him sole legal custody.
Relevant to this matter, in September 2018 legislative amendments to the
11 and in October Angelica petitioned,
"independent proceeding" provision took effect,
in a new case, to terminate Jonathan's parental rights. In addition to the parties' briefing,
we received briefing from three amici curiae - the Alaska Network on Domestic
Violence and Sexual Assault, the Office of Public Advocacy (OPA), and the State of
Alaska - on the interpretation of AS 25.23.180.12 We consolidated the petition for
review and appeal for oral argument and decision.
III. STANDARDS OF REVIEW
We review questions of statutory interpretation de novo, "adopting the rule
8 See AS 25.24.150(c)(2), (8).
9 See AS 25.24.150(c)(6).
10 See AS 25.24.150(c)(7).
11 See ch. 24, §§ 12-17, SLA 2018.
12 We thank all amici for their thoughtful briefing.
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13
of law that is most persuasive in light of precedent, reason, and policy." "When
construing statutes de novo, we consider three factors: 'the language of the statute, the
legislative history, and the legislative purpose behind the statute.' " 14
"Superior courts have broad discretion in child custody decisions, and we
will reverse only if findings of fact are clearly erroneous or if the superior court abused
15 "Whether the court's findings on domestic violence are supported by
its discretion."
the record is a question of fact which we review for clear error."16 "A factual finding is
clearly erroneous when a review of the record leaves [us] with a definite and firm
conviction that the superior court has made a mistake."17 "An abuse of discretion exists
where the superior 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.' "18
IV. DISCUSSION
We consider first the question raised in Angelica's petition for review:
13 Schacht v. Kunimune , 440 P.3d 149, 153 (Alaska 2019) (quoting Toliver
v. Alaska State Comm'n for Human Rights , 279 P.3d 619, 622 (Alaska 2012)).
14 City of Valdez v. State, 372 P.3d 240, 248 (Alaska 2016) (quoting Oels v.
Anchorage Police Dep't Emps. Ass'n , 279 P.3d 589, 595 (Alaska 2012)).
15 Geldermann v. Geldermann, 428 P.3d 477, 481 (Alaska 2018) (quoting
Riggs v. Coonradt, 335 P.3d 1103, 1106 (Alaska 2014)).
16 Bruce H. v. Jennifer L., 407 P.3d 432, 436 (Alaska 2017) (quoting
Caroline J. v. Theodore J., 354 P.3d 1085, 1090 (Alaska 2015)).
17 Geldermann, 428 P.3d at 481 (alteration in original) (quoting Riggs, 335
P.3d at 1106).
18 Id. (quoting Riggs, 335 P.3d at 1106).
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whether the superior court erred by denying her petition to terminate Jonathan's parental
rights. We then discuss the court's order on Jonathan's motion to modify custody.
A. The Superior Court Erred In Concluding That Former
AS 25.23.180(c) Does Not Permit Termination Of Parental Rights In
Custody Cases.
The superior court denied Angelica's petition to terminate Jonathan's
parental rights without reaching the merits because it concluded that former
AS 25.23.180(c) was inapplicable to custody cases. The court relied in part on In re
19
Adoption of Xavier K. ,
in which we said:
Two means exist for involuntarily terminating parental rights
in Alaska. The first is the Children in Need of Aid (CINA)
statute, which lays out rigorous criteria for parental unfitness
that the state must prove by clear and convincing evidence.
The second is through adoption, which may take place
without the consent of the biological parent(s) under the
[20]
conditions outlined in AS 25.23.050.
21
We also made a similar statement in Nelson v. Jones . But the question raised in
Angelica's petition for review was not before us in those cases,22 and we disavow our
prior dicta to the extent that it is inconsistent with our conclusions today.
19 268 P.3d 274 (Alaska 2012).
20 Id. at 276.
21 944 P.2d 476, 479 (Alaska 1997) ("Alaska provides for the termination of
parental rights only in the context of child in need of aid (CINA) proceedings
under AS 47.10.080 and adoption proceedings under AS 25.23.180." (footnotes omitted)
(citing Perry v. Newkirk, 871 P.2d 1150, 1151 (Alaska 1994))).
22 See Xavier K., 268 P.3d at 276-77 (describing attempt by child's biological
mother to use adoption statutes to sever biological father's parental rights by adopting
her own child); Nelson, 944 P.2d at 479 (summarizing father's argument that restrictions
on visitation constituted a de facto termination of parental rights).
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1. The 1987 amendments to former AS 25.23.180 permitted an
"independent proceeding" to terminate parental rights that is
distinct from adoption or CINA proceedings.
"Statutory interpretation in Alaska begins with the plain meaning of the
statute's text." 23
The relevant portions of former AS 25.23.180 - as amended in 1987,
prior to its amendment in 2018 - follow:
(c) The relationship of parent and child may be terminated by
a court order issued in connection with a proceeding under
this chapter or a proceeding under AS 47.10 on the grounds
(1) specified in AS 47.10.080(o) or 47.10.088;
(2) that a parent who does not have custody is
unreasonably withholding consent to adoption,
contrary to the best interest of the minor child; or
(3) that the parent committed an act constituting sexual
assault or sexual abuse of a minor . . . that resulted in
the conception of a child and that termination of the
parental rights of the biological parent is in the best
interests of the child.
. . . .
(e) A petition for termination of the relationship of parent and
child made in connection with an adoption proceeding or in
an independent proceeding for the termination of parental
rights on grounds set out in (c)(3) of this section may be
[24]
made by [one of several movants].
This language alone is sufficient for us to conclude that the former statute permitted an
"independent proceeding" distinct from adoption and CINA proceedings.
Former section .180(e) referred to petitions to terminate parental rights "in
connection with an adoption proceeding or in an independent proceeding," indicating
23 Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).
24 Former AS 25.23.180(c), (e) (1987), amended by ch. 24, § 12, SLA 2018.
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that these are two different types of proceedings. Because former section .180(c) further
distinguished "a proceeding under this chapter" (i.e., AS 25.23) from "a proceeding
under AS 47.10," it must be the case that an "independent proceeding" is distinct from
both adoption proceedings under Title 25, Chapter 23 of the Alaska Statutes and CINA
proceedings under Title 47, Chapter 10. The fact that these three grounds were arrayed
in list form further confirms this reading.
"Whenever possible 'we interpret each part or section of a statute with
25 The amici curiae
every other part or section, so as to create a harmonious whole.' "
note several provisions under Title 25, Chapter 23 indicating that an "independent
proceeding" is distinct fromadoption or CINA proceedings. For example, thetimelimits
for appealing adoptions and termination orders under former AS 25.23.180 were
26 The disclosure requirements in adoption cases are also applied expressly to
distinct.
termination cases under former AS 25.23.180.27 Further, the statutes created distinct
venuerequirements for adoption proceedings,CINA-related adoptions, andterminations
25 Mat-Su Valley Med. Ctr., LLC v. Bolinder , 427 P.3d 754, 763 (Alaska
2018) (quoting McDonnell v. State Farm Mut. Auto. Ins. Co. , 299 P.3d 715, 721 (Alaska
2013)).
26 Compare AS 25.23.140(b) ("[U]pon the expiration of one year after an
adoption decree is issued, the decree may not be questioned . . . ."), with former
AS 25.23.140(c) (1987), amended by ch. 24, § 7, SLA 2018 ("[O]ne year after a decree
is issued terminating parental rights on grounds set out in AS 25.23.180(c)(3), the order
may not be challenged . . . .").
27 See former AS 25.23.150(c) (1987), amended by ch. 24, § 9, SLA 2018
("[A] person may not disclose the identity or address of an adoptive parent, an adopted
child, a child who is the subject of a proceeding under AS 25.23.180(c)(3), or a
biological parent whose parental rights have been terminated on grounds set out in
AS 25.23.180(c)(3).").
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under former AS 25.23.180. 28
Finally, the amici curiae observe that a portion of the Office of Public
Advocacy's enabling statute "would be entirely superfluous" if former AS 25.23.180 did
not permit termination actions outside the adoption and CINA contexts. This is because
AS 44.21.410(a)(5) directs OPA to "provide legal representation" in several types of
proceedings, including "in cases involving petitions to adopt a minor under
AS 25.23.125," "in children's proceedings under AS 47.10.050," and in "petitions for
29 If the
the termination of parental rights on grounds set out in AS 25.23.180."
"independent proceeding" under former AS 25.23.180 were synonymous with either
adoption or CINA proceedings, there would be no need for a separate provision for the
independent termination action in OPA's enabling statute.
For these reasons, we conclude that the 1987 amendments to former
AS25.23.180(which werein effect throughout thesuperiorcourt proceedings)permitted
Angelica to petition for termination of Jonathan's parental rights in the pending custody
30
case.
2. The 2018 amendments to AS 25.23.180 merely clarify the
statute's meaning.
The legislature recently amended AS 25.23.180, and its action was
28 Compare AS 25.23.030(a) ("Proceedings for adoption shall be
brought . . . ."), with AS 25.23.030(d) ("The venue for an adoption proceeding for a child
in state custody under AS 47.10 . . . ."), and with former AS 25.23.030(c) (1987),
amended by ch. 24, § 1, SLA 2018 ("Proceedings for the termination of parental rights
on the grounds set out in AS 25.23.180(c)(3) shall be brought . . . .").
29 Former AS 44.21.410(a)(5) (1987), amended by ch. 24, § 18, SLA 2018.
30 A parent or other interested party also could file an independent action
under AS 25.23.180 even if there were no current custody case. See
AS 25.23.180(c), (e).
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informed by the case between Angelica and Jonathan. Senator Berta Gardner sponsored
Senate Bill 134 in response to a concern arising from the superior court's decision in this
case that AS 25.23.180 did not permit termination of parental rights outside the adoption
31 Senator Gardner stated that the bill did not "set any new policy"
and CINA contexts.
and that it was intended "to simply make existing policy abundantly clear."32 These
comments notwithstanding, we have said that asking
"whether a legislature which has amended a statute intends to
change or merely clarify the statute is usually fruitless"
because the legislature's opinion as to the meaning of a
statute passed by an earlier legislature is no more persuasive
than that of a knowledgeable commentator.[33]
Thus, we independently decide whether the recent amendments change the effect of
AS 25.23.180 or merely clarify its meaning.
The principal change made by S.B. 134 was to restructure AS 25.23.180(c)
for clarity. The 2018 amendments incorporated the "independent proceeding" language
of former AS 24.23.180(e) directly into AS 25.23.180(c):
(c) The relationship of parent and child may be terminated by
a court order issued in connection with a proceeding
31 See Statement of Sen. Berta Gardner at 1:37:37-1:38:20, 1:56:27-1:57:27
(Hearing on Senate Bill (S.B.) 134 Before the Sen. Jud. Comm., 30th Leg., 2d Sess.
(Apr. 16, 2018) ("[Miles C.] was very instrumental in bringing the issue to my attention
and starting our research . . . .").
32 Statement of Sen. Berta Gardner at 3:04:02-3:04:50, 3:05:12-3:05:16,
Hearing on S.B. 134 Before the H. Health & Soc. Servs. Comm., 30th Leg., 2d Sess.
(Apr. 24, 2018).
33 Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444, 448 n.12 (Alaska
2009) (quoting Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1252 (Alaska
1988)).
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(1) under this chapter or a proceeding under AS 47.10
on the grounds
(A) specified in AS 47.10.080(o) or 47.10.088;
or
(B) that a parent who does not have custody is
unreasonably withholding consent to adoption,
contrary to the best interest of the minor child;
(2) under this chapter, a proceeding under AS 47.10,
or an independent proceeding on the grounds that the
parent committed an act constituting sexual assault,
[34]
sexual abuse of a minor, or incest . . . .
This new structure better reflects our interpretation of the 1987 statute discussed above
by making clear that a petition for termination of parental rights based on sexual assault
or abuse can proceed in an adoption case, a CINA case, or in an "independent
proceeding."35
The final change of any import here was the addition of AS 25.23.180(o):
A petition for termination of parental rights under (c)(2) of
this section may be filed to initiate an independent
proceeding not connected to a petition for adoption or a
proceeding under AS 47.10.[36]
This provision emphasizes the independence of the "independent proceeding" described
above. We disagree with Jonathan that the addition of this provision constitutes a
"legislative admission" that the former law did not permit termination of parental rights
outside of adoption or CINA proceedings. This provision merely reflects the
34 Ch. 24, § 12, SLA 2018.
35 The legislature also added incest as a basis for terminating parental rights,
but that has no bearing on this case. See id.
36 Ch. 24, § 17, SLA 2018.
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legislature's goal of making it "abundantly clear" that a petition like Angelica's can
37
proceed to the merits,
and we conclude that the effect of the 2018 amendments was to
clarify the statute.
38
We reverse the superior court's order denying Angelica's petition.
Jonathan testified that he had sexual intercourse with Angelica multiple times when she
was 13 years old and he was at least 18 years old, and his admitted sexual abuse of
Angelica is "an act constituting sexual assault or sexual abuse of a minor."39 Jonathan
is subject to having his parental rights terminated, but only if the superior court
determines that it is in J.T.'s best interests to do so.40
3. The best interests factors to be applied under AS 25.23.180
To terminate parental rights under former AS 25.23.180(c)(3), the court
must consider whether termination "is in the best interests of the child." Among various
37 Statement of Sen. Berta Gardner at 3:05:12-3:05:16, Hearing on S.B. 134
Before the H. Health & Soc. Servs. Comm., 30th Leg., 2d Sess. (Apr. 24, 2018).
38 As we noted above, Angelica has filed - in a new case - a petition under
the statute as amended in 2018. We expect that the superior court will consolidate the
custody case with the new case.
39 Former AS 25.23.180(c)(3) (1987), amended by ch. 24, § 12, SLA 2018;
see AS 11.41.436(a)(1) ("An offender commits the crime of sexual abuse of a minor in
the second degree if . . . being 17 years of age or older, the offender engages in sexual
penetration with a person who is 13, 14, or 15 years of age and at least four years
younger than the offender . . . ."). Because Jonathan admits to this conduct constituting
sexual abuse of a minor, we need not decide whether Jonathan's conviction for attempted
sexual abuse of a minor in the second degree, standing alone, establishes that he
committed "an act constituting sexual assault or sexual abuse of a minor."
AS 25.23.180(c)(3).
40 See former AS 25.23.180(c)(3) (1987), amended by ch. 24, § 12, SLA 2018
(providing that courts must consider whether "termination of the parental rights of the
biological parent is in the best interests of the child").
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arguments Jonathan raises regarding AS 25.23.180, he criticizes its failure to "provide
guidelines for determining best interests." None of the parties have identified anything
in the legislative history of the 1987 law that would clarify which factors a court should
use in making this determination. We also have been unable to find any relevant
legislative history.
The superior court did not reach the best interests issue because it
concluded that Angelica could not petition to terminate Jonathan's parental rights in the
custody matter. The issue is therefore not before us and we choose not to decide it
definitively at the present juncture of this case. The following observations are intended
to aid the superior court in determining the best interests of a child in the independent
parental rights termination context.
We agree with the parties that the best interests factors in
AS 25.24.150(c) - which govern custody cases - can be at least a starting point for a
termination action under AS 25.23.180. The relevance of these factors is clear; what
remains to be clarified is whether they are sufficient. Custody orders, unlike orders
terminating parental rights, "typically do not sever one party's constitutionally protected
41 We have said that when deciding whether to replace a biological
parental rights."
parent through an adoption proceeding, "courts are free to consider relevant
AS 25.24.150(c) factors for guidance in making a best interests determination," but
doing so is not mandatory.42
In the CINA context, when deciding if a parent has remedied the conditions
that place the child at risk of harm, the legislature has directed that
41 In re Adoption of Hannah L., 390 P.3d 1153, 1159 (Alaska 2017).
42 Id. at 1160.
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the court may consider any fact relating to the best interests
of the child, including
(1) the likelihood of returning the child to the parent
within a reasonable time based on the child's age or
needs;
(2) the amount of effort by the parent to remedy the
conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will
continue; and
(5) the history of conduct by or conditions created by
[43]
the parent.
But the ultimate decision whether to terminate parental rights in a CINA case turns on
44 a more "capacious" standard which calls for "a
"the best interests of the child,"
comprehensive judgment as to whether the child's best interests favor the termination of
parental rights."45
In adoption and CINA proceedings, the stakes are higher than in an
ordinary custody case: in these cases the court is asked to terminate a parent's parental
rights, not just to decide the nature and terms of a parent's physical custody rights. The
same is true for a termination action under AS 25.23.180. The irrevocable termination
of parental rights is normally accompanied by heightened protections for the adverse
parent.46 Yet the termination of parental rights procedure at issue here also reflects a
43 AS 47.10.088(b).
44 AS 47.10.088(c).
45 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008).
46 See, e.g. , AS 47.10.086(a) (requiring the State to make "timely, reasonable
(continued...)
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choice by the legislature to protect the victims of sexual abuse from being subjected to
years-long custody disputes with their assailants, re-victimizing them; this policy
militates in favor of weighing the underlying sexual abuse more heavily, and it seems
that the victim-parent's rights should receive strong, though not necessarily dispositive,
consideration. The court should also consider the child's rights: it may not be in the
child's best interests to have an ongoing child-parent relationship with a parent who has
a history of sexual abuse.
In sum, when the superior court determines on remand whether it is in the
child's best interests to terminate parental rights under AS 25.23.180(c), it should
consider the relevant best interests factors enumerated in the custody and adoption
contexts, as well as other factors germane to the child's best interests, giving appropriate
weight to the legislative policy choices described above. 47
B. The Superior Court Erred In Granting Jonathan's Motion To Modify
Custody.
Angelica also appealed the superior court's order awarding custody to
Jonathan. We conclude the superior court committed legal error when it failed to
account for Jonathan's sexual abuse of Angelica in its analysis of two of the best interests
factors. Because these errors affected the relative weight the court gave to each of the
factors in its analysis, we also conclude that the court abused its discretion in failing to
consider a statutory factor.
46 (...continued)
efforts" to reunify parent and child); AS 47.10.088(a) (requiring a court to make certain
findings by "clear and convincing evidence" before terminating parental rights).
47 We repeat that AS 25.23.180 reflects the legislature's enactment of the
public policy of Alaska; the legislature is free to explicitly answer the additional policy
question of which best interests factors it wants courts to consider in these cases.
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The legislature has expressed its intent that in general "both parents have
48
the opportunity to guide and nurture their child."
But in 2004 the legislature clarified
its intent when itenacted aset ofpresumptions andconditions for custody determinations
49 Alaska Statute 25.24.150(g) provides: "There
in cases involving domestic violence.
is a rebuttable presumption that a parent who has a history of perpetrating domestic
violence against the other parent . . . may not be awarded" custody of the child. And
AS 25.25.150(h) defines "a history of perpetrating domestic violence" as engaging in
more than one incident of domestic violence or causing serious physical injury during
a single incident. Domestic violence includes the crime of sexual abuse of a minor,50 and
Jonathan admits that he committed more than one act of sexual abuse against Angelica.
He therefore has a history of perpetrating domestic violence against Angelica, and the
rebuttable presumption against his custody of J.T. applies.
Despite remaining "dubious" that Jonathan's sexual abuse of Angelica was
an act of domestic violence that triggered the rebuttable presumption against Jonathan,
the superior court nevertheless accepted that the presumption applied. And the court
determined that he had overcome this presumption by attending a parenting course while
he was incarcerated and counseling after his release. But when the court addressed the
various AS 25.24.150(c) best interests factors, it did not mention, much less weigh, that
Jonathan sexually abused Angelica on multiple occasions.
48 Ch. 88, § 1(a), SLA 1982.
49 See ch. 111, § 5, SLA 2004.
50 See AS 25.90.010 (adopting for Title 25 the definition of domestic violence
found in Title 18); AS 18.66.990 (defining "domestic violence" to include "an offense
. . . or an attempt to commit [an] offense" such as "a crime against a the pe rson under
AS 11.41"); AS 11.41.436(a)(1) (defining offense of sexual abuse of a minor in the
second degree).
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In its 2018 order conditionally granting custody to Jonathan, the superior
court considered and applied each of the best interests factors to the facts before it,
including factors (6) (willingness to facilitate a parent-child relationship) and
51 But its analysis was devoid of the defining fact of this case:
(7) (domestic violence).
Jonathan's sexual abuse of Angelica.
Alaska Statute 25.24.150(c) enumerates nine factors that the superior court
"shall consider" in determining the best interests of the child. Factor (6) is
the willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child.[52]
Factor (7) directs the court to consider "any evidence of domestic violence, child abuse,
or child neglect in the proposed custodial household or a history of violence between the
parents."53
The superior court weighed what the parties had said and shown about their
willingness to facilitate J.T.'s relationship with his entire family. The court stated that
it "does not hold anything against Angelica or her parents for seeking to terminate
[Jonathan's] parental rights" and that its analysis of the "willingness" factor had
"ignor[ed] the termination action." But the court's analysis also ignored the underlying
fact of that action: Jonathan sexually abused and impregnated Angelica. Angelica's
51 See supra note 8 and accompanying text.
52 AS 25.24.150(c)(6) (emphasis added).
53 AS 25.24.150(c)(7).
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willingness to facilitate a relationship between J.T. and Jonathan should have been
excluded from the court's analysis. The court excluded from consideration only her
attempt to terminate Jonathan's parental rights but not other evidence of her
unwillingness to facilitate a relationship between J.T. and Jonathan, such as her
reluctance to share custody with Jonathan and disparaging comments she made about
him. Similarly, when the court considered the domestic violence factor, it examined the
record for evidence of violence in the homes of Jonathan, Angelica's parents, and Victor.
But it did not mention the fact that Jonathan had illegal sexual relations with Angelica
on multiple occasions, impregnated Angelica while she was a minor, and was later
convicted of attempted sexual abuse against her. Because factors (6) and (7) required
the court to consider Jonathan's sexual abuse of Angelica in its best interest analysis, the
court committed legal error when it failed to account for this seminal fact.
The court's conclusion that Jonathan rebutted the domestic violence
presumption did not permit it to thereafter ignore the underlying facts of the conduct
making him a domestic violence perpetrator when it made its best interests analysis. A
rebuttable presumption is a legal inference drawn from certain facts, and it may be
54 Under Alaska law, a parent who
overcome by the introduction of contrary evidence.
has a history of perpetrating domestic violence is presumed unfit for custody;55 to rebut
the presumption is only to once again become eligible for custody. Once Jonathan
ostensibly rebutted the domestic violence presumption, he became eligible for custody
of J.T., subject to the court's findings and weighing of the best interests factors. But the
court could not ignore its finding that Jonathan had a history of perpetrating domestic
54 SeePresumption,rebuttablepresumption , B LACK'S LAW DICTIONARY (11th
ed. 2019).
55 See AS 25.24.150(g).
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violence nor could it ignore the underlying fact of his sexual abuse of Angelica, and both
facts have implications for the best interests analysis. 56
This oversightwas crucial tothecourt's analysis ofJ.T.'s bestinterests, and
it led the court to assign disproportionate weight to the best interests factors. The court
therefore abused its discretion by failing to consider these highly relevant facts. We
reverse the court's order granting sole custody to Jonathan and remand for further
proceedings.
On remand - if the superior court determines not to terminate Jonathan's
parental rights pursuant to Angelica's petition under AS 25.23.180 - the court must
carefully apply the best interests factors consistent with our opinion. Because the court
already found that Jonathan rebutted the presumption against custody,57 it must conduct
a new best interests analysis that (1) properly contemplates Jonathan's sexual abuse of
Angelica, independent ofthefact that hehas rebuttedthedomesticviolencepresumption;
56 See, e.g. , Kristina B. v. Edward B. , 329 P.3d 202, 207-10 (Alaska 2014)
(discussing rebutting the presumption, and then evaluating domestic violence in the best
interests analysis by saying the court's findings regarding the presumption rebuttal were
adequate to cover the best interests analysis); Weinberger v. Weinmeister , 268 P.3d 305,
311 (Alaska 2012) (applying AS 25.24.150(c)(6) domestic violence exception to
willingness to facilitate factor and need for finding that continuing relationship would
endanger health or safety of parent or child).
57 The superior court found that Jonathan rebutted the domestic violence
presumption through a parenting course and ongoing therapy. Because Angelica does
not challenge this on appeal, we leave intact the court's determination that Jonathan
rebutted the presumption. We note that the legislature has not drawn distinctions among
different forms of domestic violence with regard to a parent's burden in rebutting the
domestic violence presumption. We previously concluded that "the legislature did not
intend that completion of a batterers' intervention program should be the only way" to
rebut the presumption. Stephanie F. v. George C., 270 P.3d 737, 752 (Alaska 2012).
We observe that it is not self-evident that a batterers' intervention program or similar
treatment aimed at batterers is an appropriate response to a sexual abuse perpetrator.
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(2) excludes evidence of Angelica's unwillingness to facilitate a relationship between
J.T. and Jonathan; and (3) carefully analyzes the best interests factors in light of the
58
legislature's clear intent to level the playing field for victims of domestic violence.
V. CONCLUSION
We REVERSE the superior court's order denying Angelica's petition to
terminate Jonathan's parental rights. We REVERSE the superior court's custody order.
We REMAND for further proceedings consistent with this opinion.
58 The court may have to consider J.T.'s best interests twice: first when
deciding whether to terminate Jonathan's parental rights and again if it reaches the
motion to modify custody. As we discuss above, the question whether to sever J.T.'s
child-parent relationship with Jonathan is different and weightier than the design of an
appropriatecustodial arrangement. Whiletherewill beoverlapbetween thebest interests
factors, the court may weigh those factors differently in each analysis.
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