Or v. STATE, DHSS

968 P.2d 93
CourtAlaska Supreme Court
DecidedNovember 27, 1998
DocketS-8225, S-8235
StatusPublished
Cited by6 cases

This text of 968 P.2d 93 (Or v. STATE, DHSS) 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
Or v. STATE, DHSS, 968 P.2d 93 (Ala. 1998).

Opinion

968 P.2d 93 (1998)

O.R., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.
C.R., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.

Nos. S-8225, S-8235.

Supreme Court of Alaska.

November 27, 1998.

*94 Bethany P. Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant O.R.

Robert S. Noreen, Law Office of Robert S. Noreen, Fairbanks, for Appellant C.R.

D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Thomas E. Fenton, Fairbanks, Guardian Ad Litem.

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

OPINION

FABE, Justice.

I. INTRODUCTION

This appeal arises out of the superior court's finding that A.R. was a child in need of aid under AS 47.10.010(a)(6) because she suffered substantial physical neglect. A.R.'s parents, C.R. and O.R., contend that subsection (6) requires the State to show both that they physically neglected A.R. and that A.R. was physically harmed by their neglect. Because we previously held in D.H. v. State, *95 Department of Health & Social Services[1] that subsection (6) does not require a finding of actual harm, we affirm.

II. FACTS AND PROCEEDINGS

C.R. (formerly C.K.) is A.R.'s mother and O.R. is A.R.'s father. They were previously before this court in O.R. v. State, Department of Health & Social Services,[2] in which they appealed the termination of their parental rights over A.R.[3] We discussed the relevant facts and proceedings in that appeal as follows:

A.R. was born nine weeks prematurely on June 11, 1994. She tested positive for cocaine and suffered from respiratory difficulties, including strep pneumonia. Because of her health problems, she remained in the hospital's neo-natal intensive care unit until July 5, 1994, and required hospitalization three more times in the next four months. A year after her birth, A.R. underwent surgery to correct her breathing difficulties. The surgery minimized most of her respiratory problems, but she remains vulnerable to serious illness and attention disorders.
A.R. is C.K.'s eighth child. The two children born to C.K. prior to A.R. also tested positive for cocaine at birth. DHSS removed all of C.K.'s other children in 1991 and 1992 and placed them under the guardianship of relatives in other states. O.R. has two other children who live with their mother in another state. O.R. and C.K. are not married.
DHSS initially took emergency custody of A.R. on June 13, 1994, two days after her birth, because she tested positive for cocaine. On June 15, 1994, in response to a petition by DHSS, C.K. and O.R. stipulated to ninety days temporary custody with the state. The court extended custody at a review hearing on September 13, 1994, until a trial on November 28, 1994, on DHSS's petition for adjudication of A.R. as a child in need of aid (Adjudication Trial).
There was little visitation between A.R. and her parents in the more than five months between A.R.'s birth and the adjudication trial. Although C.K. and O.R. appear to have visited the child regularly during the three weeks that she remained in the hospital after her birth, their visits almost entirely ceased after she was discharged. Between July 5 and November 28, C.K. visited only twice, once in July and once in September, and O.R. visited only once, accompanying C.K. on the July visit.
In its findings and order following the November 28, 1994 trial, the superior court stated that it found this "lack of visitation by either parent ... troubling because it means that neither of them could possibly have established a relationship with A.R. with so little contact." The court further noted A.R.'s "special medical needs which require careful attention and care from her primary care takers" and stated that "[n]either [C.] K. or [sic] [O.] R. is capable of providing that level of attention and care at this time."
Based on these findings, the court determined that A.R. was a child in need of aid "in that she has no one able or willing to care for her at this time and she has effectively been abandoned, whether or not her parents' abandonment of her was conscious or intended." The court awarded custody of A.R. to DHSS for one year. In its order, the court stated that "[i]t is essential that each parent get treatment for his or her own needs as soon as possible and begin to establish contact with the child so that they can learn what her needs are and how to provide for them." Furthermore, a stipulation signed by O.R. and given to C.K.'s attorney stated that DHSS would "consider filing a petition to terminate parental rights" if C.K. and O.R. had not made "progress toward being able to demonstrate [they are] capable of caring for" A.R.
Despite this warning, however, C.K. did not visit A.R. in the next five months. She also failed to follow through on a recommendation *96 to obtain treatment for her substance abuse problem. On April 29, 1995, C.K. was arrested for violation of probation and selling cocaine. At the time of the termination trial she was incarcerated and awaiting sentencing.
Shortly after the adjudication trial, O.R. was arrested and incarcerated until February 5, 1995. While in jail, he had one visit with A.R. in January 1995. After his release from jail, however, he did not visit A.R. until he was again incarcerated in May 1995 on charges of sexual abuse of a minor, distributing alcohol to a minor, and misconduct involving weapons.
There were occasional obstacles to visitation during the time between A.R.'s initial discharge from the hospital and the time at which both parents were incarcerated. Between December 6 and December 20, C.K.'s social worker was on leave, and between December 16 and January 1, A.R. left the state with her foster parent. DHSS also canceled several visits in January for reasons beyond C.K. and O.R.'s control. This left, however, approximately seventy-seven scheduled visits that C.K. missed when she was not in jail and about seventy scheduled visits O.R. missed when he was not in jail.
In the five months after they were both incarcerated, C.K. and O.R. each had three visits with A.R. Bureaucratic delays, A.R.'s surgery in June, and a trip to Florida with her foster parents apparently made it impossible for A.R. to visit the jail more frequently.
On June 1, 1995, DHSS filed a Petition for Termination of Parental Rights, alleging abandonment. After a five-day trial beginning October 30, 1995, Judge Mary E. Greene terminated the parental rights of C.K. and O.R. and placed A.R. in the custody of DHSS for the purpose of finding her a permanent home.[4]

We affirmed the superior court's ruling that C.R. and O.R. had physically abandoned A.R. under former AS 47.10.010(a)(2)(A), and remanded for additional findings as to whether relatives of A.R. were willing and available to care for her.[5]

Following the remand, Superior Court Judge Mary E. Greene allowed the State to withdraw the ground of abandonment and assert the ground of physical neglect under AS 47.10.010(a)(6)[6] as the basis for adjudicating A.R. a child in need of aid. An evidentiary hearing was held on June 17, 1997.

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