Debbie G. v. State, Department of Health & Social Services, Office of Children's Services

132 P.3d 1168, 2006 Alas. LEXIS 43, 2006 WL 893748
CourtAlaska Supreme Court
DecidedApril 7, 2006
DocketS-11778, S-11782
StatusPublished
Cited by9 cases

This text of 132 P.3d 1168 (Debbie G. v. State, Department of Health & Social Services, Office of Children's Services) 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
Debbie G. v. State, Department of Health & Social Services, Office of Children's Services, 132 P.3d 1168, 2006 Alas. LEXIS 43, 2006 WL 893748 (Ala. 2006).

Opinion

*1169 OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Parents who are admittedly unable to care for their son argue that he is not in 'need of aid because there is a relative willing to care for him. The superior court, finding that the parents’ designation of someone else to care for their child did not remedy their conduct that had placed the child at risk, terminated their parental rights. Because the parents’ plan provides neither permanency nor assurance that they would not try to regain physical custody if they were to retain parental rights, and because the applicable statute, AS 47.10.088, only permits return of children to their parents and not to other relatives, we affirm.

II. FACTS AND PROCEEDINGS

John G. was born two months prematurely, on April 8, 2003. 1 He is classified as a “special needs child.” Both of John’s biological parents have a history of substance abuse, mental problems, and criminal activity. The parents, Debbie G. and Charles F., acknowledge that they are either unwilling or unable to care .for John. Debbie and Charles are not married to each other and reside together off and on.

When John was six weeks old and still in the hospital, the Office of Children’s Services (OCS) took emergency custody. The next day Debbie signed papers relinquishing her parental rights, but she changed her mind a few days later. When John was released from the hospital he was placed in foster cáre with the Smith family, because the Smiths had adopted John’s half-brother. Debbie had suggested that the Smiths take custody of John when he was released from the hospital. In June 2003 Charles was identified as John’s father. At an adjudication hearing in August Charles stipulated that he was unable to care for John and agreed to the state taking temporary custody.

Debbie has declared that she cannot raise John and since August 2003 has confirmed that she wants relatives to care for the child. Both parents have now agreed that they want Charles’s sister, Aunt Eva, to “raise” John. At times Charles appears to have been against actual adoption by Aunt Eva. Sometimes Charles spoke of having John placed with a relative only temporarily, perhaps until the child was eight or ten years old.

John’s paternal grandmother has also been considered as a possible caretaker for John. In fall or early winter of 2003, when John was about six months old, she requested that John be transferred to her custody while the home study on Aunt Eva was pending.

In April 2004 OCS sought termination of parental rights based on the parents’ continued lack of ability or desire to raise John. By September OCS had considered three adoption options for John: John’s Aunt Eva, John’s paternal grandmother, and the Smith family; it determined that the Smith family was the best permanent placement.

Following a September trial on the state’s petition for termination of parental rights, the superior court issued a ruling terminating the parental rights of both parents. It found that the parents had “abandoned” John and that their “use of alcohol to excess, cocaine and fights make it physically dangerous for [John], a special needs child, to be in their care.” The superior court ruled that “[t]he parents have not, within a reasonable time, remedied the conditions in their home that place [John] at substantial risk of harm or risk of physical or mental injury.”

Both parents appeal.

III.DISCUSSION

A. Standard of Review

In a child in need of aid (CINA) proceeding

[w]e apply the clearly erroneous standard when reviewing the superior court’s factual findings. Factual findings are clearly erroneous when we are convinced, upon review of the entire record, that a mistake has been made. Whether the superior court’s factual findings satisfy applicable *1170 CINA rules is a question of law subject to de novo review.[ 2 ]

We apply our “independent judgment when reviewing a lower court’s interpretation of statutes and other related legal questions.” 3

B. Parents Who Place the Child at Risk of Harm Do Not Remedy the Conduct or Condition by Designating a Relative To Raise the Child.

Debbie G. and Charles F. argue that they “remedied” the conduct or conditions that risked harm to their son by designating a relative to care for him, and therefore satisfied AS 47.10.088(a)(1)(B).

Alaska Statute 47.10.088 provides in pertinent part:

(a) Except as provided in AS 47.10.080(o), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in AS 47.10.011; and
(B) the parent
(i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury....

John has been subjected to conditions described in AS 47.10.011 (including the mother’s admitted substance abuse), thus satisfying AS 47.10.088(a)(1)(A). 4 Debbie and Charles admit they are unable to care for John. The only question they raise on appeal is whether under AS 47.10.088(a)(1)(B) the parents “remedied ... conditions in the home” that had threatened John’s safety.

The parents argue that if John were returned to their care he would be cared for by a relative, and that consequently they would present no danger to him. They argue that sending the child to a relative would remedy the conduct and conditions in the home that place the child at substantial risk, not by changing the conduct and conditions which had previously placed the child at risk, but by changing the child’s residence so that the ongoing dangerous conduct or conditions would no longer pose a risk to the child.

We acknowledge that in some circumstances the parents’ reading of AS 47.10.088(a)(1)(B) would not be implausible, and moreover, that in some circumstances sending a child to live with relatives would be an appropriate and responsible way to eliminate a risk of harm to a child. Given the facts of this case, however, AS 47.10.088(a)(l)(B)(ii) permits termination of parental rights.

It is important that AS 47.10.088(a) declares that “the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent

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132 P.3d 1168, 2006 Alas. LEXIS 43, 2006 WL 893748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debbie-g-v-state-department-of-health-social-services-office-of-alaska-2006.