Matter of HC

956 P.2d 477
CourtAlaska Supreme Court
DecidedApril 17, 1998
DocketS-7643
StatusPublished

This text of 956 P.2d 477 (Matter of HC) 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
Matter of HC, 956 P.2d 477 (Ala. 1998).

Opinion

956 P.2d 477 (1998)

In the Matter of H.C., A Minor Under the Age of Eighteen (18) Years,
D.K., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.

No. S-7643.

Supreme Court of Alaska.

April 17, 1998.

*479 Douglas K. Rickey, Furlong & Rickey, Juneau, for Appellant.

Jan A. Rutherdale, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

OPINION

COMPTON, Justice.

I. FACTS AND PROCEEDINGS

D.K. and R.C., respectively the father and mother of H.C., lived together for eight months with R.C.'s four-year-old son, M.C. Five months after the relationship ended, and R.C. moved out, she gave birth to H.C. Until H.C. was one year old, R.C. had sole custody of H.C.; she denied D.K.'s paternity. At that time, D.K. obtained a court declaration that he was H.C.'s father. Three days prior to entry of D.K.'s paternity order, the Division of Family and Youth Services (DFYS) filed a Petition for Adjudication of Child In Need of Aid (CINA) and for temporary placement of H.C. After a hearing, the superior court issued an order giving the State temporary custody.

At D.K.'s request, DFYS permitted D.K. to have supervised visitation with H.C. for one hour, twice a month, in the DFYS Juneau field office. DFYS admitted that it did not plan to place H.C. with D.K. permanently, but it requested information from D.K. to evaluate the possibility of "increased visitation and an increased active parental role."[1] DFYS requested "(1) a recent psychological evaluation; (2) documentation of how [D.K.] planned to care for H.C.'s basic needs [including a scheduled home visit by a social worker to assess the appropriateness of the living conditions]; (3) information on how he would provide day care; and (4) evidence of his parenting ability." Later, DFYS filed an amended petition for CINA adjudication and temporary placement for H.C., alleging that D.K. was unable to care for H.C. In its petition, DFYS stated that D.K. had a history of mental illness and domestic violence *480 against R.C., prior felony convictions involving weapons, no suitable housing, and that D.K. had failed to demonstrate an ability to meet H.C.'s basic needs.

D.K. submitted to DFYS two psychological evaluations — one conducted by Dr. John Kesselring and one by Dr. Anthony Mander.[2] He attempted to enroll in parenting classes at Parent Aid in Juneau,[3] and he continued to visit H.C. The superior court held a CINA hearing at which D.K. admitted that H.C. was a child in need of aid, and that he was unable to care for her at that time. Two months later, D.K. moved to Hyder, and eventually to El Paso, Texas. D.K. did not notify DFYS or leave a forwarding address when he left Juneau. In Texas, D.K. met with Dr. Garry Feldman, a licensed clinical psychologist. While D.K. was in Texas, a disposition hearing on the CINA adjudication was held and H.C. was committed to state custody under AS 47.10.080(c)(1).[4] H.C. was then only twenty-seven months old. One year later, DFYS petitioned to terminate D.K.'s parental rights under AS 47.10.080(c)(3),[5] alleging that D.K. had had no contact with H.C. for over one year and had abandoned her. D.K. was still living in Texas and had not seen H.C. since leaving Juneau.

In a January 1996 hearing, DFYS presented four witnesses to support its position that D.K.'s parental rights should be terminated: Diane Sly, an interventionist with the Infant Learning Program; Dr. Mander, the Juneau psychologist who had evaluated D.K. in 1993; Joanne Gibbens, the DFYS social worker who had handled H.C.'s case between March 1993 and April 1994; and Ileta Iler, the DFYS social worker assigned to the case after August 1994. D.K. presented three witnesses in his defense: Jake Lofton, a family friend who had observed D.K.'s parenting skills; Diane Downs, D.K.'s roommate of six months in Juneau; and Dr. Feldman, the El Paso psychologist who had spent ten sessions with D.K. The trial court terminated D.K.'s parental rights after the hearing.[6] D.K. appeals the superior court's order.[7]

*481 II. DISCUSSION

A. Standard of Review

We will reverse a trial court's factual findings in terminating parental rights only if they are "clearly erroneous," meaning that we are "left with the definite and firm conviction that a mistake has been made." E.J.S. v. State, 754 P.2d 749, 750 n. 2 (Alaska 1988) (cited in A.M. v. State, 891 P.2d 815, 820 (Alaska 1995)).

B. Did the Trial Court Clearly Err in Terminating D.K.'s Parental Rights?

A court may terminate parental rights under AS 47.10.080(c)(3) if it finds by clear and convincing evidence that a child is in need of aid under AS 47.10.010(a)[8] as a result of parental conduct, and that the parental conduct is likely to continue if there is no termination of rights. See A.M., 891 P.2d at 819. D.K. admitted that H.C. was a child in need of aid. The State then had the burden of proving "the existence of grounds for termination by clear and convincing evidence." Id. at 820; see also AS 47.10.080(c)(3); CINA Rule 15(c).

1. Is H.C. a child in need of aid as a result of parental conduct?

A child is in need of aid as a result of parental conduct when, inter alia, one parent has physically abandoned the child and the other parent has voluntarily relinquished his or her parental rights. See former AS 47.10.010(a)(2)(A)(iii)(renumbered as AS 47.10.010(a)(1)(C)). R.C. voluntarily relinquished her parental rights to H.C. Therefore, if the court properly found that D.K. physically abandoned H.C., then H.C. is a child in need of aid as a result of parental conduct. This court has developed a two-pronged test to determine whether a child has been physically abandoned: "(1) whether the parent's conduct evidenced a disregard for his or her parental obligations, and (2) whether that disregard led to the destruction of the parent-child relationship." E.J.S., 754 P.2d at 750-51; see also Nada A. v. State, 660 P.2d 436, 439 (Alaska 1983).

a. Did D.K.'s conduct evidence a disregard for his parental obligations to H.C.?

The first prong of the abandonment test concentrates on the parent's "objective conduct ... in discharging [his or her] parental responsibility." E.J.S., 754 P.2d at 751. The court does not consider "the parent's subjective intent, or ... the `parent's wishful thoughts and hopes for the child.'" Id. (quoting D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973)). A parent has an "`affirmative duty ... [to show] continuing interest in the child and [to make] a genuine effort to maintain communication and association'"; token efforts to communicate with a child will not satisfy this duty. Id. (quoting In re Burns, 474 Pa. 615, 379 A.2d 535, 540 (1977)).

At first D.K.

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H.C. v. State, Department of Health & Social Services
956 P.2d 477 (Alaska Supreme Court, 1998)

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Bluebook (online)
956 P.2d 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-hc-alaska-1998.