A.M. v. State

891 P.2d 815, 1995 Alas. LEXIS 23
CourtAlaska Supreme Court
DecidedMarch 10, 1995
DocketNo. S-5836
StatusPublished
Cited by51 cases

This text of 891 P.2d 815 (A.M. v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.M. v. State, 891 P.2d 815, 1995 Alas. LEXIS 23 (Ala. 1995).

Opinions

OPINION

BRYNER, Justice Pro Tern.

A.M. appeals the termination of his parental rights to his two children, M.M. and S.M. We conclude that the superior court erred in finding that termination of A.M.’s parental rights was warranted by his physical abandonment of the children.

I. FACTS AND PROCEEDINGS

This appeal arises from the termination of A.M.’s parental rights to his minor son, M.M., and his minor daughter, S.M. The children were born in 1987 and 1989 to A.M. and S.L.S. The children are Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-23, 1951 (1988).

In 1990, A.M. was charged with, and later convicted of, sexually abusing S.S., a child of S.L.S. by a prior relationship who lived with A.M. and S.L.S. at the time. In March 1990, after the abuse was reported, the Division of Family and Youth Services (DFYS) arranged for S.L.S. and her three children to live in a women’s shelter. Upon finding that S.L.S. had left the shelter and was not keeping S.S. from A.M., DFYS took emergency custody of S.S. S.L.S. entered an alcohol treatment program shortly thereafter; A.M. took custody of M.M. and S.M., with DFYS monitoring their situation.

In September 1990, A.M. was formally charged with sexually abusing S.S. M.M. and S.M. were taken from A.M. upon his arrest and were temporarily placed in the home of a maternal great aunt in Juneau with whom S.L.S. was staying. Not long thereafter, S.L.S. left the children with a baby sitter and failed to return. On October 23, 1990, DFYS petitioned for adjudication of S.M. and M.M. as children in need of aid [819]*819(CINA), alleging that “[t]he children having no one to care for them are in imminent danger of physical harm or damage.” A.M. and S.L.S. both stipulated that the children were in need of aid and that DFYS should assume custody for up to two years. A.M. was subsequently convicted of sexually abusing S.S. and was eventually sentenced to serve a total of ten years in prison, with one year suspended.

In June 1992, seventeen months after A.M. stipulated that M.M. and S.M. were children in need of aid, DFYS petitioned for termination of A.M.’s parental rights.1 Superior Court Judge Walter L. Carpeneti conducted a consolidated hearing on the adjudicative and dispositional aspects of the State’s petition to terminate. On August 6, 1993, Judge Carpeneti entered an order ' terminating A.M.’s parental rights.2 A.M. then filed this appeal, challenging the termination order on numerous substantive and procedural grounds.

II. TERMINATION OF PARENTAL RIGHTS BASED ON CINA STATUS UNDER AS 17.10.010(a)(2)(A)

A. Statutory Frametvork and Standard of Review

The State petitioned to terminate A.M.’s parental rights based on the allegation that S.M. and M.M. were children in need of aid.3 Under AS 47.10.080(c)(3), the court is authorized to terminate parental rights

upon a showing ... by clear and convincing evidence that there is a child in need of aid under AS 47.10.010(a)(2) as a result of parental conduct and upon a showing ... by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights....

See also CINA Rule 15(c). In order to terminate parental rights under this statute, the court must initially find grounds sufficient to warrant a CINA adjudication. Nada A. v. State, 660 P.2d 436, 439-40 (Alaska 1983). The court must then undertake a two-step inquiry: first, whether the child is a child in need of aid “as a result of parental conduct;” second, whether that conduct “is likely to continue to exist.” Id. at 440 (quoting AS 47.10.080(c)(3)).

Alaska Statute 47.10.010(a)(2) specifies various substantive grounds for a CINA adjudication. Here, the State alleged that A.M.’s children were in need of aid on the alternative grounds specified in AS 47.10.010(a)(2)(A), (C), (D), and (F).'4 The only theory actively argued by the State at the termination trial, however, was abandonment under AS 47.10.010(a)(2)(A). Subsection (a)(2)(A) allows a CINA adjudication as to any “child ... having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment. ...”

[820]*820In the context of the abandonment provision, “conduct” means the willful act of a parent. Nada A, 660 P.2d at 439; In re B.J., 530 P.2d 747, 750 n. 12 (Alaska 1975). “Whether or not there has been an abandonment within the meaning of the statute is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well.” D.M. v. State, 515 P.2d 1234,1236-37 (Alaska 1973).

For purposes of termination, the State has the burden of proving both the CINA status of the child and the existence of grounds for termination by clear and convincing evidence. AS 47.10.080(c)(3); CINA Rule 15(c). In reviewing the trial court’s factual findings on the issue of termination, we apply the “clearly erroneous” standard of review. E.J.S. v. State, 754 P.2d 749, 750 n. 2 (Alaska 1988). However, we must always bear in mind that “terminating parental rights [is] a drastic measure. The private interest of a parent whose parental rights may be terminated is of the highest order.” In the Matter of J.L.F. and K.W.F., 828 P.2d 166, 170 (Alaska 1992).

B. Abandonment

On appeal, A.M. argues that the superior court erred in finding conduct constituting physical abandonment under AS 47.10.010(a)(2)(A). The test for abandonment under subsection (a)(2)(A) is two-pronged: the superior court must find (1) that the parent’s conduct implied a conscious disregard for parental obligations; and (2) that the parent’s conscious disregard led to the destruction of the relationship between the parent and the parent’s children. E.g., E.J.S. 754 P.2d at 751. The superior court addressed both pi'ongs of this test in its findings and conclusions. A.M. challenges the adequacy of the court’s findings as to both prongs.

1. Conscious Disregard for Parental Duties

“The first prong of the abandonment test focuses on the objective conduct of the parents in discharging them parental responsibility. Thus, abandonment is not determined by the parent’s subjective intent or on the ‘parent’s wishful thoughts and hopes for the child.’ ” Id. (quoting D.M., 515 P.2d at 1237). One’s parental duty is “an ‘affirmative duty ... which requires [a] continuing interest in the child and a genuine effort to maintain communication and association with the child.’ ” E.J.S., 754 P.2d at 751 (alterations in original) (quoting In re Bums, 474 Pa.

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Bluebook (online)
891 P.2d 815, 1995 Alas. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/am-v-state-alaska-1995.