Matter of RK

851 P.2d 62
CourtAlaska Supreme Court
DecidedApril 30, 1993
DocketS-4894
StatusPublished

This text of 851 P.2d 62 (Matter of RK) 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 RK, 851 P.2d 62 (Ala. 1993).

Opinion

851 P.2d 62 (1993)

In the Matter of R.K., DOB: 1/19/85, E.K., DOB: 4/28/86, Minors Under the Age of Eighteen (18) Years.

No. S-4894.

Supreme Court of Alaska.

April 30, 1993.
Rehearing Denied May 28, 1993.

Thomas E. Fenton, Fairbanks, for appellant Richard Hudson.

Scott Davis, Asst. Atty. Gen., Fairbanks, Charles E. Cole, Atty. Gen., Juneau, for appellee State of Alaska.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

OPINION

MATTHEWS, Justice.

In this case Richard Hudson challenges the superior court's order terminating his parental rights with respect to R.K. and E.K. We reverse the superior court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

R.K. and E.K. were found to be children in need of aid under AS 47.10.010(a)(2) on January 9, 1989, by stipulation between the Division of Family and Youth Services (DFYS) and their mother.[1] In the stipulation *63 the mother "admits that the children ... are children in need of aid under AS 47.10.010(a)(2)(A) and (B) on the basis of the facts set forth in the petition [of October 15, 1988] in this case."[2] The initial, October 15th, petition indicated that the mother's location was unknown and that the father "may be Richard L. Hudson."

At the first hearing on the petition held before a magistrate on October 15, 1988, Richard Hudson appeared and testified that the children had been left in the custody of a babysitter whom he had found at the Savoy Bar because he was unable to find any of the children's usual babysitters. Hudson was asked by the judge whether he was the father and he gave the following equivocal testimony:

MR. HUDSON: Well, they call me Daddy. I've been there since they were born, if that's... .
THE COURT: Well... .
MR. HUDSON: ... tell you now, I'm not their father.
THE COURT: You're not the father.
MR. HUDSON: No. But, I mean, I'm — it's like I've been around lot longer than family.
THE COURT: All right.
MR. HUDSON: (Indiscernible) family (indiscernible) normally to 'm. I mean, they are my children. I mean, I'm all they've got (indiscernible) parent (indiscernible).[3]

At the next hearing, held on October 17, 1988, only the guardian ad litem, counsel for the state, and personnel from DFYS were present. The state's counsel represented that: "Mr. Richard Hudson appeared at the hearing over the weekend, acknowledged that he was not the father of the children. So, the petition probably should be amended to reflect that the children's father is unknown at this time." The children were placed in a foster home near Fairbanks.

At a pretrial conference held on January 5, 1989, where again only the state's attorney, the guardian ad litem, and DFYS personnel were present, the trial judge stated that Richard Hudson had been before her that morning on a criminal case in which he was in custody. At that time Hudson represented that he was not the father of the children. The trial judge therefore did not arrange to have Hudson brought before the court in the children's matter. At the hearing on January 9, where the mother *64 stipulated to state custody for two years, no discussion of the paternity of the children took place.

The next event of significance was a call from Hudson to DFYS case worker Nicki McCabe on June 21, 1989. Hudson sought visitation with the children, stating first that he was their father and second that even if he was not, he had assumed the role of their father. McCabe explained to Hudson that he would have to prove his paternity in order to see the children. She stated that Hudson, the children and the mother would all have to have their blood tested. Hudson contacted the mother, who agreed to have her blood tested in July of 1989. However, she did not show up to have blood taken.

Hudson phoned McCabe on July 26, 1989, and explained that he had attempted to have the mother give blood, but that she had been uncooperative. Nevertheless, in August of 1989 the children were placed in a permanent foster home in Anchorage.[4] After several attempts, McCabe finally contacted the mother on September 14, 1989. The mother stated that Hudson was not the father of the children. On October 10, 1989, McCabe called Hudson to determine if any progress had been made concerning the blood tests. Hudson explained that he had not seen the mother for a few months.[5]

On January 18, 1990, the state petitioned for termination of parental rights of the mother[6] and of the unknown father pursuant to AS 47.10.080(c)(3). The statute provides:

(c) If the court finds that the minor is a child in need of aid, it shall
... .
(3) by order, upon a showing in the adjudication 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, terminate parental rights and responsibilities of one or both parents and commit the child to the department... .

The court appointed counsel to represent the unknown father(s). Counsel contacted Hudson and then sought court orders requiring the mother to give blood in order to determine paternity. Although the court ordered the mother to have her blood taken for testing purposes on February 23, 1990 and March 27, 1990, and issued bench warrants to enforce the orders on May 7, 1990 and June 5, 1990, the mother was not apprehended until late November of 1990. At that time, testing took place and by December of 1990 it was clear that Hudson was the biological father of R.K. As of January 28, 1991, the test results confirmed that Richard Hudson was also the father of E.K.

A custody review hearing was held on March 6, 1991, before Judge Richard Savell. Hudson was present and testified at the hearing, although he was then incarcerated at the Palmer Correctional Facility.[7]*65 At the conclusion of the hearing, Judge Savell ordered that state custody of the children be extended for a period not to exceed two years. The court found that Hudson was responsible for the delay in establishing paternity for the children, that he had not asserted any genuine interest in the children after October 15, 1988, and that his conduct leading up "to the emergency custody of these children on October 14, 1988, constitute[s] clear and convincing evidence that these children continue to be children in need of aid." The court also found that it could be seriously harmful to the children if they were removed from their current placement and that it would be contrary to their welfare to be placed with Hudson or his relatives.

In October of 1991, the court heard the state's petition to terminate Hudson's parental rights. Following the hearing the court ordered Hudson's rights terminated. The court found that Hudson's neglect in October of 1988 resulted in the children being children in need of aid, and that such neglect would likely continue if there were no termination of his parental rights. Specifically, the court found:

(a) The children's condition at the time they were taken into emergency custody in October 1988 is directly attributable to and the result of the neglect the children suffered while in Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Parker v. Northern Mixing Co.
756 P.2d 881 (Alaska Supreme Court, 1988)
E.J.S. v. State, Department of Health & Social Services
754 P.2d 749 (Alaska Supreme Court, 1988)
K.T.E. v. State
689 P.2d 472 (Alaska Supreme Court, 1984)
R.C. v. State, Department of Health & Social Services
760 P.2d 501 (Alaska Supreme Court, 1988)
K.F. v. State
828 P.2d 166 (Alaska Supreme Court, 1992)
In re R.K.
851 P.2d 62 (Alaska Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
851 P.2d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-rk-alaska-1993.