77 P.3d 4 (Alaska 2003), S-10771, In re Adoption of Bernard A.

Docket Nº:S-10771.
Citation:77 P.3d 4
Opinion Judge:CARPENETI, Justice.
Party Name:In the Matter of the ADOPTION OF BERNARD A.
Attorney:Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, for Appellants. Brooks W. Chandler, Hicks, Boyd, Chandler & Falconer, LLP, Anchorage, for Appellees.
Judge Panel:Before : FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
Case Date:September 12, 2003
Court:Supreme Court of Alaska

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77 P.3d 4 (Alaska 2003)

In the Matter of the ADOPTION OF BERNARD A.

No. S-10771.

Supreme Court of Alaska

September 12, 2003.

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        Michael J. Walleri, Law Offices of Michael J. Walleri, Fairbanks, for Appellants.

        Brooks W. Chandler, Hicks, Boyd, Chandler & Falconer, LLP, Anchorage, for Appellees.

        Before : FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.


        CARPENETI, Justice.


        A grandfather and grandmother appeal the decision of the superior court denying their petition for adoption of their grandson and granting the adoption petition of the child's foster parents. They claim that the superior court placed undue emphasis on the length of time that the three-year-old child had spent in the care of his foster parents. We hold that there was no abuse of discretion; accordingly, we affirm.


        A. Facts

        Bernard A.,1 the child at the center of the current dispute, was born in January 1999 and was removed from his parents by the Division of Family and Youth Services (DFYS) in August 1999. Bernard is the fifth of Linda G.'s six children. With the possible exception of an additional seventh child with which Linda was pregnant at the time of the superior court hearing, about which we have no further information, none of these children is in Linda's custody. Although appellants Constance and Clark L., Linda's mother and stepfather, immediately asked that Bernard be placed with them when he was removed from his parents' custody in August 1999, Bernard was instead placed in foster care with appellees Ruth K. and John A. He has lived with Ruth and John ever since. The parental rights of Linda and Bernard's father were terminated in April 2001 due to abandonment, substance abuse, and neglect, at which time both parents expressed a preference that the child be placed for adoption with Constance and Clark.

        We reviewed the termination of Linda's parental rights to two of her children, J.G. and S.G., in 2000 in L.G. v. State, Department of Health & Social Services.2 S.G. was eventually placed for adoption with Ruth and John, who were among her several foster

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placements.3 Constance and Clark had wished to adopt both girls themselves, and appealed the superior court's decision granting adoption of both girls to their respective foster parents in C.L. & C.L. v. P.C.S., but were unsuccessful.4 These decisions were based in part on several incidents that showed that Constance and Clark lacked understanding of the psychological needs of these children: in 1994 Constance and Clark decided they could no longer cope with having two-year-old J.G. placed with them on a foster care basis and simply had her dropped off at the DFYS office without warning to DFYS or to J.G.;5 there was evidence that DFYS workers had encountered Constance in states of intoxication in the mid-1990's, prior to the girls' adoptions, even though this was traumatic for J.G. given her history with her mother (at least one of these occasions was when J.G. was brought in for a visit);6 and Constance and Clark had in the past given Linda access to the children in contravention of DFYS instructions after this proved traumatic for J.G.7 Constance and Clark did later obtain custody of Linda's sixth child, K.G., and were in the process of adopting him at the time of the hearing in the current case.

        Linda and her mother, Constance, are affiliated with the Yup'ik village of Emmonak; Bernard's father had no tribal affiliation. Bernard is eligible for tribal affiliation through his mother and is therefore an "Indian child" under the Indian Child Welfare Act (ICWA).8 Clark has no tribal affiliation. John is a Yup'ik and Inupiat affiliated with the village of Kotlik. Ruth is a Yup'ik affiliated with the village of Emmonak. We held in C.L. & C.L. v. P.C.S. that Ruth qualified for the extended family placement preference9 for Linda's children because of evidence that Yup'ik tradition considers a second cousin once removed to be extended family under 25 U.S. C. § 1903(2).10 In addition, John also presented evidence in this case that his older brother was married to one of Constance's cousins.

        B. Proceedings

        Constance and Clark filed various amended petitions to adopt Bernard in February and June 2001; Ruth and John filed petitions to adopt Bernard in June and August 2001 after parental rights were terminated in April 2001. The village government of Emmonak was contacted, and it expressed no opinion as to where Bernard should be placed. DFYS had legal custody of Bernard because he was a child in need of aid, and consented to Ruth and John's petition. Constance and Clark finally submitted the last of the documentation supporting their petition at the end of September 2001, and asked for a rescheduling of the hearing on their petition, which was granted for November 2001. After a similar hearing on Ruth and John's petition in November 2001, a special master recommended in December 2001 that the two adoption petitions be consolidated. Separately, Constance and Clark also filed a motion to consolidate, and that motion was later granted. The superior court accepted the special master's recommendation to consolidate in January 2002, and hearings on the best interests of the child were held Before Special Master Alicemary L. Closuit on February

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28 and Special Master Daniel Weber on March 18-19, 2002.

        In a lengthy report, Special Master Weber recommended in late May 2002 that Ruth and John be allowed to adopt Bernard. The primary reason for this recommendation was that several experts had testified that early childhood bonding was of "crucial importance" to a child's future emotional stability, and Bernard had lived only with Ruth and John from the ages of seven months to three years at the time of the hearing. The special master also indicated that the parenting style of Ruth and John was more likely to meet Bernard's emotional needs, in light of Constance and Clark's past behavior with J.G., including the alcohol use, unauthorized exposure to her mother, and their sudden and unceremonious renunciation of her foster care placement. The special master found that the parties were equally capable of caring for Bernard's physical and cultural needs, and that each party would provide him with differing but acceptable access to at least some of his other relatives. The special master also found that the families both satisfied the ICWA extended family placement preference under C.L. & C.L. v. P.C.S.,11 but that the placement preference of the biological parents was not entitled to much weight in judging Bernard's best interests. Constance and Clark objected to the special master's report in June 2002. In July Superior Court Judge Niesje J. Steinkruger adopted the special master's report, granted Ruth and John's petition, and denied Constance and Clark's petition. The adoption decree was issued on August 2, 2002. Constance and Clark appeal.


         An adoptive placement determination should be reversed only when the record as a whole reveals an abuse of discretion or when controlling factual findings are clearly erroneous.12 The trial court abuses its discretion if it considers improper factors, fails to consider relevant statutory factors, or assigns disproportionate weight to some factors while ignoring others.13 In an adoption case, the court's best interests of the child finding and other factual findings are reviewed under the "clearly erroneous" standard.14 A finding is clearly erroneous only when a review of the entire record leaves us firmly convinced that a mistake has been made.15

         We apply our independent judgment to questions of law and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."16


         The parties agree that the relevant inquiry in a contested adoption is whether the adoption is in the best interests of the child.17 Constance and Clark argue that the superior court abused its discretion by overemphasizing the length of time that Bernard had spent with his foster parents and by deprecating other factors they argue weigh in their favor. We reject these arguments.

        A. The Trial Court Properly Considered the Length of Time Bernard Spent with his Foster Parents.

         Constance and Clark...

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