Opinion
Supreme Court No. S-12055.
May 24, 2006.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge, Superior Court No. 4FA-02-07 CP.
Kathleen Murphy, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. FACTS AND PROCEEDINGS
Appellant Walter J. produced two children with Mana L., Joshua (b. 1997) and Caleb (b. 2000). A third child, Mitchell (b. 1999), was born to Mana during the relationship but is not biologically related to Walter. The couple ended their relationship in 2001 when Mana moved to Alaska and Walter remained in Texas where the couple had resided to that point. Mana sent Joshua to live with Walter in Texas in 2002. Neither Joshua nor Mitchell is involved in this appeal.
We use pseudonyms in this opinion to protect the identity of the parties.
In January 2003 Mana and Walter stipulated to an adjudication that Caleb and Mitchell were children in need of aid under AS 47.10.011(6), (9), and (10). The basis for the adjudication was Mana's course of conduct over the preceding year that included substance abuse and repeatedly leaving both children unattended for long periods of time. That adjudication gave temporary custody of Mitchell and Caleb to the state, but several months later the children were returned to Mana's care. After Mitchell and Caleb were again removed by the state and placed in foster care, the state sought a termination of Mana's and Walter's parental rights under AS 47.10.088. The superior court found by clear and convincing evidence that Mana had not remedied the conditions that caused the children to be in need of aid and terminated her parental rights and responsibilities as to Mitchell and Caleb. The court continued the trial on the termination of Walter's parental rights to Caleb to await the results of a home study and placement request made under the Interstate Compact for the Placement of Children.
After the hearing on the termination of Walter's parental rights toward Caleb, the superior court found by clear and convincing evidence that Caleb was a child in need of aid under AS 47.10.011. The court based that finding solely on Mana's conduct. The superior court also found by clear and convincing evidence that Walter had not corrected the conduct that caused Caleb to be a child in need of aid. The court noted that Walter could not have corrected those conditions because they were created by Mana. The court went on to find that Walter was not in a position to properly care for Caleb. Specifically, it found that he lacked a stable residence, missed most of his allotted opportunities to visit with Caleb to that point, had a generally "attenuated" relationship with Caleb, and lacked an adequate understanding of Caleb's special needs. The court also found by a preponderance of evidence that the state had made reasonable efforts to enable the safe return of Caleb to Walter's care as required by AS 47.10.088 and AS 47.10.086. Based on these findings, the superior court terminated Walter's parental rights as to Caleb. Walter appeals.
We note that the May 2006 amendments to AS 47.10.088 heightened the standard of proof on this point to clear and convincing evidence. AS 47.10.088, as amended by ch. 20, § 2, SLA 2006.
II. DISCUSSION
Walter contends that the superior court erred in its conclusion that Mana's unremedied conduct required the termination of his parental rights. The state agrees that the superior court wrongly based its termination of Walter's rights on Mana's conduct alone, but urges us to affirm under the alternative theory that there was sufficient evidence to support the termination of Walter's parental rights based on his own conduct.
The state's harmless error argument is as follows:
Walter asserts that the trial court erred when it concluded that it was required to terminate the rights of the "non-offending" parent (Walter) based on the offending parent's (Mana's) unremedied conduct. This Court previously has recognized that after a child has been found to be in need of aid under AS 47.10.011, the department must prove that "the parent whose rights the state wishes to terminate has failed to remedy the conduct underlying the petition."30 Thus, in this matter, the trial court could not make a failure to remedy finding against Walter based solely on Mana's conduct.
The trial court had to and did look to conduct by Walter that placed Caleb in need of aid and whether that conduct remained unremedied or had not been remedied in a timely manner. To the extent the trial court relied on Mana's conduct in finding that Caleb was a child in need of aid and that Walter failed to remedy this conduct, this error is harmless. Because the consideration of whether the statutory requirements have been met is a question of law, this Court may uphold the termination order on an alternative legal theory. Here, there was sufficient evidence to support a finding that Caleb was a child in need of aid under either AS 47.10.011(1) (abandonment) or (9) (neglect) based on Walter's conduct and that Walter failed in a timely manner to remedy this conduct so that returning Caleb to his care would result in substantial harm. As such, this Court should affirm the order terminating Walter's parental rights to Caleb.
30 Richard B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 71 P.3d 811, 819-20 (Alaska 2003).
(Some citations omitted.)
The problem with the state's suggested harmless error argument is that it is the responsibility of the superior court to determine by clear and convincing evidence whether the grounds exist for the termination of parental rights. In this case the superior court did not find that Walter had abandoned Caleb under AS 47.10.011(1) or that he had subjected Caleb or another child in Walter's household to neglect under AS 47.10.011(9). The state's argument that there was sufficient evidence to support such findings (a point on which we do not rule) is legally insufficient. This court could only rule that such findings were unnecessary if the evidence was strong enough to support a conclusion that Walter subjected Caleb to abandonment or neglect as a matter of law. The state does not argue that this is the case here. Even if it were, such a ruling would be inappropriate because the state did not allege or seek to prove abandonment or neglect on the part of Walter, and thus he was not on notice that he needed to meet these contentions.
See Bennett v. Hedglin, 995 P.2d 668, 672 (Alaska 2000) (noting that courts may decide facts as a matter of law "when `the evidence is such that there can be no reasonable difference of opinion.'" (quoting Ruhlig v. American Comty. Mut. Ins. Co., 696 N.E.2d 877, 880 (Ind.App. 1998))).
III. CONCLUSION
For the reasons stated, the termination order is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.