NADA A. v. State
NADA A. v. State
Opinion of the Court
OPINION
Nada A. appeals the termination of her parental rights to her son, O.A. At the conclusion of the termination hearing in superior court, the judge found that O.A. was a child in need of aid and that his mother’s disregard of her parental obligations was likely to continue. The court ordered the termination of her parental rights, but further ordered that in the event of a change in circumstances, Nada could apply for a reconsideration of the termination at any time before O.A. is adopted. The state cross-appeals this order permitting a reconsideration of the termination.
After entering a negotiated plea to the charge of manslaughter in Fairbanks, Nada was sentenced in July of 1980. Marie brought O.A. with her to Alaska for the sentencing. After sentencing, Nada was released on appellate bond and O.A. rejoined her.
On October 15, 1980, Nada took O.A. to the babysitter’s, packed a few clothes and went to Anchorage to escape mounting personal pressures. Nada did not return to Fairbanks because she feared that she would be put in jail and would be unable to get O.A. back.
Emergency custody of O.A. was assumed by the Division of Family and Youth Services [DFYS] on October 16,1980. From the last week in October of 1980 until the present, O.A. has remained in the foster care of the L. family.
Nada remained in Anchorage until June 27, 1981, when she voluntarily turned herself in to the authorities. After she was transported back to Fairbanks, Nada tried to make contact with O.A. through the DFYS. Her request was refused, because the DFYS had decided to seek termination of her parental rights. On July 1, 1981, a petition for termination of parental rights was filed by the state. The court found O.A. to be a child in need of aid as a result of physical abandonment under AS 47.10.-010(a)(2)(A). It then had authority under AS 47.10.080(c)(3) to terminate Nada’s parental rights upon a showing, by clear and convincing evidence, that parental conduct leading to the “child in need of aid” determination was likely to continue.
I. ABANDONMENT
Nada argues that the trial court erred in its finding of “physical abandonment.” She claims that the trial court applied an incorrect legal standard in reaching this determination. Specifically, Nada alleges that the court relied on the subjective viewpoint of the child rather than on an objective standard. She contends that a proper application of the abandonment test would result in a finding that her conduct did not evidence a disregard of her parental obligations.
In D.M. v. State, 515 P.2d 1234 (Alaska 1973), in rejecting the application of a subjective standard to measure a parent’s intention to abandon a child, we stated:
“Whether or not there has been an abandonment within the meaning of the statute is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well.”
The test for abandonment has two prongs: (1) has the parent’s conduct evidenced a disregard for his or her parental obligations, and (2) has that disregard led to the destruction of the parent-child relationship. Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974). A review of the record indicates that the court had before it sufficient objective evidence to satisfy the first prong of the abandonment test. The testimony about how Nada had fled from Fairbanks leaving O.A. with a babysitter provides sufficient objective evidence indicating disregard of parental obligations. In addition, at the hearing, the trial judge specifically referred to the eight month period of separation during which Nada lived in Anchorage as “for all practical purposes destroying] the parent/child relationship.” Therefore, the trial court properly applied the legal standard and its finding of abandonment should not be reversed.
Nada also argues that the trial court erred by considering her incarceration as abandonment. She contends that in order to constitute abandonment, the acts of the parent must be willful. Yet, incarceration was beyond her control and, she claims, actually resulted from her attempt to protect O.A. from his father.
We have said that “[i]n order to constitute abandonment, the acts of the parent must be willful.” In re B.J., 530 P.2d 747, 750 n. 12 (Alaska 1975). The trial judge did orally state that he considered involuntary incarceration to constitute abandonment, but the written findings of fact, which were submitted by the state and signed by the court, referred to the voluntary absence from October of 1980 to June of 1981 as the relevant conscious disregard of parental obligations.
II. BEST INTERESTS OF THE CHILD
Nada argues that the trial court misinterpreted our previous decisions and incorrectly used the best interests of the child as the sole criterion for its decision to terminate her parental rights. She claims that the best interests of the child should be considered only after it has been shown that there is sufficient parental misconduct to justify termination.
The state argues that the best interests of the child are a significant, but not dispositive, consideration at each step in determining whether to terminate parental rights.
III. TRIAL COURT’S FINDINGS
Nada argues that the court’s finding that her disregard of her parental obligation was likely to continue in the future was clearly erroneous.
AS 47.10.080(c)(3) requires as prerequisites to termination of parental rights that first, the child is a child in need of aid “as a result of parental conduct,” and second, clear and convincing evidence that “the parental conduct is likely to continue to exist.” The parental conduct relied on by the trial judge in determining that O.A. was a child in need of aid was:
“That on October 15, 1981, N.A. left her child, O.A., with a babysitter and did not return, thereby exhibiting a conscious disregard for the needs and welfare of her child and of her parental obligations to O.A.”
According to our reading of the statute, there must then be a showing by clear and convincing evidence that this same conduct is likely to continue. The findings below are deficient in this regard. The only relevant finding is:
“That N.A. is likely to continue to demonstrate a conscious disregard of the obligation owed by a parent to a child even after her release from incarceration because she suffers from an impulsive personality disorder.”
The only testimony upon which the court could have relied in making this finding was rendered by Dr. Rothrock, a psychiatrist who had interviewed Nada only once for one hour, admitted he knew nothing about her parenting abilities and qualified his prognosis, with the statement that he could “only answer that question in generalities, because ... [he had] not had any extended contact with [Nada A.].”
Dr. Rothrock’s opinion was not shared by Robert Dunn, a psychological counselor, who offered opposing expert testimony that N.A. had a high probability of success in controlling her problem, nor by the social workers and others who knew Nada well and felt that she had made considerable progress through counseling. Evidence favorable to Nada also included her own testimony as to her willingness to accept help in dealing with her personal problems and in learning to be a better mother.
The impulsive personality disorder itself is not conduct and thus, not a ground for termination.
Although Nada did abandon O.A. once before, that action was taken under very stressful and unique circumstances. It would, therefore, be unjustified to infer a likelihood of future abandonment from this isolated incident.
In view of the high standard of “clear and convincing evidence” required on the issue of the likelihood that past conduct will continue, we are left “with a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding.” In re S.D., Jr. et al, 549 P.2d 1190, 1195 n. 10 (Alaska 1976).
In its cross-appeal, the state challenges the trial court’s giving Nada leave to seek reconsideration of its termination order until the entry of a final adoption decree. It claims that this order represents a violation of O.A.’s equal protection rights. The state claims that the issuance of a termination order overcomes the statutory presumption in favor of a natural parent’s fitness and urges that Rita T. v. State, 623 P.2d 344 (Alaska 1981), which undermines finality by resurrecting this preference, be modified or overruled so that the best interests of the child (as determined in a neutral adoption process), rather than parental rehabilitation alone, will be the relevant criterion.
In conclusion, we find, first, that the record contains insufficient evidence to support the termination of Nada A.’s parental rights. Second, the preservation of her right to obtain reconsideration upon a showing of good cause prior to the adoption of O.A., challenged in the cross-appeal, was proper.
The decision below is REVERSED.
. AS 47.10.080(c)(3) 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 in the disposition 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 or to a legally appointed guardian of the person of the child, and the department or guardian shall report annually to the court on efforts being made to find a permanent placement for the child.”
. When written findings of fact conflict with an oral statement made by a judge, the written findings are controlling. Ronne v. Ronne, 568 P.2d 1021, 1023 n. 5 (Alaska 1977). See also Williams v. City of Valdez, 603 P.2d 483, 492 n. 30 (Alaska 1979).
. AS 47.10.082 reads:
“In making its dispositional order under AS 47.10.080(b) the court shall consider the best interests of the child and public, and in making its dispositional order under AS 47.10.-080(c) the court shall consider the best interests of the child; in either case the court shall consider also the ability of the state to take custody and to care for the child to protect his best interests under AS 47.10.-010-47.10.142.”
. Nada also argues that the trial court erred by not considering the effect of the actions of the DFYS on Nada’s exercise of her parental rights. She argues that the DFYS frustrated her efforts to communicate with O.A. while it encouraged the foster parents to adopt him, and thus, failed in its obligation to “make reasonable attempts, whenever possible, to preserve and strengthen the family ties.” E.A. v. State, 623 P.2d 1210, 1213 (Alaska 1981) (footnote omitted), before terminating her parental rights. Nada’s argument is without merit because it focuses on the wrong time frame. Nada was receiving a wide range of social services at the time she abandoned O.A. There is little the DFYS could have added to these services. During the relevant period prior to filing a petition to have Nada’s rights terminated, the state did try unsuccessfully to locate her, but could do little to strengthen her family ties while she was gone.
. The state bases its constitutional argument on O.A.’s right to a permanent, adequate home. See, In re S.D., Jr., 549 P.2d 1190, 1201 (Alaska 1976). Since this right has not been recognized as “fundamental”, any difference between the treatment of children in O.A.’s position whose natural parents seek reconsideration and that of other children whose parents’ rights have been terminated need only satisfy a reasonable basis test.
Concurring Opinion
concurring.
I concur in the disposition of this appeal, but write separately to express my opinion that the legislature should amend AS 47.-10.080(c)(3) so that a parent’s incarceration may be considered when determining whether to terminate parental rights.
AS 47.10.080(c)(3) specifies that parental rights may be terminated only if there is a showing “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.” It seems obvious to me that a child may be in need of aid when the only custodial parent engages in conduct that results in incarceration. I would therefore conclude that AS 47.10.080(c)(3) permits the superior court to consider the parent’s incarceration when determining whether the child is in need of aid; e.g., whether the parent has abandoned the child.
AS 47.10.080(c)(3) also requires, however, 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.” Although incarceration may well be likely to continue for a substantial period of time, and the child will
The situation is easily imaginable in which the only parent with custody of a child commits a crime and is sentenced to a lengthy imprisonment term when the child is quite young. This may effectively destroy the parent-child relationship. Under these circumstances, the child should be permitted to establish a bond with other persons, rather than spend his or her minority in a succession of foster homes or other temporary placements. AS 47.10.080(c)(3), as presently written, however, does not permit the termination of parental rights in this situation. I urge the legislature to consider the effect of the statute’s wording and amend it so that this result is not necessary.
In this case, the superior court indicated in its oral findings of fact that it considered Nada’s incarceration to constitute an abandonment of O.A. Nada contends that her incarceration is beyond her control and therefore may not be considered as the “willful conduct” necessary to constitute abandonment in accordance with our holding in In re B.J., 530 P.2d 747, 750 n. 12 (Alaska 1975). This court impliedly agrees with Nada by holding that the superior court did not commit reversible error on this issue because Nada’s incarceration was not relied upon in the written findings of fact, which are controlling. 660 P.2d at 439 & n. 2. I disagree with this court’s implied holding.
Very few people are voluntarily incarcerated. It is also true, however, that very few people are incarcerated for involuntary acts. It should be entirely foreseeable to a parent that commission of a crime will result in incarceration and- separation from the parent’s child. Whether this amounts to an abandonment of the child may depend upon whether the parent is able to and does make adequate provisions for the child’s care during the length of the parent’s incarceration. See, e.g., Diernfeld v. People, 137 Colo. 238, 323 P.2d 628 (Colo. 1958); Annot., 79 A.L.R.3d 417 (1977) (“Parent’s Involuntary Confinement ... as Evincing Neglect ... in Dependency or Divestiture Proceed-mg”).
Nada did not make any provisions for the care of O.A. before her incarceration. She left O.A. with a babysitter, even though her stepmother lived in Fairbanks and had earlier taken care of her and O.A. Nada’s incarceration may have been beyond her control, but her conduct in killing her husband was within her control, according to the superior court that found her guilty of manslaughter and sentenced her to a term of imprisonment. Furthermore, her failure to make any provisions for the care of O.A. during her incarceration was also within her control. I believe that these facts constitute clear and convincing evidence that Nada abandoned O.A.
As indicated, however, Nada’s incarceration is not “parental conduct ” that is “likely to continue to exist if there is no termination of parental rights.” AS 47.10.-080(c)(3). Thus, under the statute, her incarceration cannot justify the termination of her parental rights. I agree with this court that the evidence of Nada’s impulsive personality disorder is not in itself grounds for terminating her parental rights. I also agree with this court that clear and convincing evidence was not presented that Nada is likely to abandon O.A. again after she is released from prison. Thus, I find I must concur with the court that it is necessary to reverse the superior court’s order terminating Nada’s parental rights. Again, however, I urge the legislature to amend AS 47.10.080(c)(3) so that parental rights may be terminated when a parent destroys the parent-child relationship by willfully committing a crime and failing to make adequate provisions for the care of the child during a period of incarceration. Under some circumstances, only in this fashion may the child be permitted to form a bond with other persons and avoid a succession of
Reference
- Full Case Name
- NADA A., Appellant and Cross-Appellee, v. STATE of Alaska, Appellee and Cross-Appellant
- Cited By
- 37 cases
- Status
- Published