TB v. State

922 P.2d 271
CourtAlaska Supreme Court
DecidedSeptember 6, 1996
DocketS-6924
StatusPublished

This text of 922 P.2d 271 (TB 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
TB v. State, 922 P.2d 271 (Ala. 1996).

Opinion

922 P.2d 271 (1996)

T.B., Appellant,
v.
STATE of Alaska, Appellee.

No. S-6924.

Supreme Court of Alaska.

September 6, 1996.

*272 John Aschenbrenner, Assistant Public Defender, Kenai, John Salemi, Public Defender, Anchorage, for Appellant.

Dianne Olsen, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee.

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

OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

The superior court determined that R.C., the natural child of T.B., is a child in need of aid under AS 47.10.010(a)(2)(A), (C), and (F), and that it is in the best interests of R.C. for the State to retain custody of him for two years. T.B., R.C.'s mother, who was caring for R.C. until the State interceded, now brings this appeal.

II. FACTS AND PROCEEDINGS

T.B. is R.C.'s mother. A Colorado court terminated her parental rights in 1988, after finding that she had abandoned R.C. and had not complied with a rehabilitation plan. The Colorado court awarded custody first to R.C.'s grandfather, and then to R.C.'s uncle, G.C. Thereafter, G.C. executed two separate powers of attorney giving custody of R.C. to T.B. The first one, executed on December 18, 1990, was entitled "Special Power of Attorney and Grant of Temporary Custody" and was effective "until its revocation by me." The second one, executed on October 13, 1994, contained similar language, but was entitled, "Special Power of Attorney and Grant of Permanent Custody." On December 23, 1990, R.C. arrived in Alaska, and lived with T.B. until May 1993, at which time the State took emergency custody of him.

In November of 1992, T.B. withdrew R.C. from school. She re-enrolled him on January 21, 1993. He missed about six weeks of classes. The previous spring, R.C. had been severely injured when another child kicked him in the testicles. T.B. claims that R.C. was assaulted again in the fall of 1992, which prompted her to withdraw him from school. She attempted to enroll him in a home schooling program, but when her application was denied, she returned R.C. to school.

The State took custody of R.C. on May 18, 1993. On that date T.B. threatened R.C. *273 after he struck a motorcycle with a sword.[1] Specifically, she threatened to "beat your fucking ass" and may also have threatened to kill him. R.C. fled to a neighbor's house, where a fight then ensued between the neighbor and T.B. There were allegations that T.B. was drunk, though T.B. only admitted to having had "a couple of beers" that day.

Following the State's exercise of emergency custody in the wake of the May 18 incident, the State designed a plan which would enable T.B. to resume caring for R.C. The plan called for her to attend regular meetings at Alcoholics Anonymous, complete parenting classes, participate in a psychological evaluation, have regular meetings with R.C., and complete individual and family counseling. However, T.B. did not comply with the treatment plan. The superior court found that she attended only four of six parenting classes, that she visited R.C. only "sporadically," that she did not provide the court with a record of AA meetings, and that she did not undergo counseling. The superior court noted that T.B. claimed that her failure to complete the program set up by the State was caused by the distance between her home and the location of the classes and by her inability to afford cab fare to the location of the classes.

The superior court determined that R.C. is a child in need of aid pursuant to AS 47.10.010(a)(2)(A), (C), and (F).[2] The superior court then awarded custody of R.C. to the Department of Health and Social Services for up to two years and also provided for visitations with T.B.

T.B. appeals the superior court's classification of R.C. as a child in need of aid and also appeals the superior court's dispositional order awarding custody to the Department of Health and Social Services.

III. STANDARD OF REVIEW

A superior court's finding that a child is in need of aid will be overturned if this court is left with the definite and firm conviction that a mistake has been made. In the Matter of A.S.W., 834 P.2d 801, 806 (Alaska 1992). Factual findings supporting the superior court's determination that a minor is a child in need of aid are reviewed under the clearly erroneous standard. A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989).

IV. DISCUSSION

A. Did the Superior Court Err in Holding that R.C. Is a Child in Need of Aid?

Since the superior court articulated three separate grounds in support of its conclusion that R.C. is a child in need of aid, we address each in turn.

1. Did the superior court err in concluding that R.C. is a child in need of aid pursuant to AS 47.10.010(a)(2)(C)?

In its Memorandum of Decision the superior court found:

1. This Court has jurisdiction of this case for purposes of adjudication and disposition under the provisions of A.S. 47.10.010(a)(2)(C).
2. As a result of actions done by or conditions created by R.C.'s mother, T.B., on *274 May 18, 1993, there was an imminent and substantial risk that R.C. would suffer substantial physical harm. R.C. thwarted the risk of harm by his actions in seeking assistance from Jessica Townsend. Jessica Townsend thwarted the risk of harm to R.C. by her actions in assisting R.C. and in preventing T.B.'s access to R.C. during the incident.

Alaska Statute 47.10.010(a)(2)(C) provides for jurisdiction over a child who is in need of aid as a result of

the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child[.]

(Emphasis added).

Our review of the record leads us to the conclusion that sufficient evidentiary support is lacking for the superior court's conclusion that "[a]s a result of actions done by or conditions created by R.C.'s mother, T.B., on May 18, 1993, there was an imminent and substantial risk that R.C. would suffer substantial physical harm" under AS 47.10.010(a)(2)(C). Essentially, after R.C. swung a sword at a motorcycle (or possibly at a person), T.B. yelled at R.C. and threatened him. This may have been an overreaction to the incident. However, this isolated incident, without evidence that T.B. was prone to violence or that T.B. had any history of violence towards R.C., falls short of establishing an imminent and substantial risk that the child will suffer substantial physical harm. See F.T. v. State, 862 P.2d 857 (Alaska 1993) (where the state presented no direct evidence concerning father's alleged physical abuse of son, insufficient evidence existed to support the superior court's adjudication under AS 47.10.010(a)(2)(C)); In the Matter of S.A., 912 P.2d 1235

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

Related

Matter of SA
912 P.2d 1235 (Alaska Supreme Court, 1996)
RITA T. v. State
623 P.2d 344 (Alaska Supreme Court, 1981)
Matter of SD, Jr.
549 P.2d 1190 (Alaska Supreme Court, 1976)
A.H. v. State
779 P.2d 1229 (Alaska Supreme Court, 1989)
A.S.W. v. State
834 P.2d 801 (Alaska Supreme Court, 1992)
F.T. v. State
862 P.2d 857 (Alaska Supreme Court, 1993)
T.B. v. State
922 P.2d 271 (Alaska Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
922 P.2d 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tb-v-state-alaska-1996.