AA v. State

• Decision Date: 25 June 1999
• Docket Number: No. S-8663.,S-8663.
• Citation: 982 P.2d 256
• Parties: A.A., Appellant, v. STATE of Alaska, DEPARTMENT OF FAMILY & YOUTH SERVICES, Appellee.
• Court: Alaska Supreme Court

982 P.2d 256

A.A., Appellant, v. STATE of Alaska, DEPARTMENT OF FAMILY & YOUTH SERVICES, Appellee.

No. S-8663.

Supreme Court of Alaska.

June 25, 1999.

Stuart G. Ross, Law Office of Stuart G. Ross, Anchorage, for Appellant.

Lisa B. Nelson, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, and James H. Parker, Assistant Public Advocate, Brant McGee, Public Advocate, Anchorage, for Appellee.

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

OPINION

FABE, Justice.

I. INTRODUCTION

Upon reversal of his murder conviction, A.A. moved to postpone the hearing on the Department of Family & Youth Services's petition to terminate his parental rights with respect to his son, I.K. The superior court denied A.A.'s request out of concern that a lengthy delay of the termination proceedings would negatively affect I.K.'s best interests. A.A. appeals the superior court's decision to terminate his parental rights, arguing that he had a right to a continuance and that the State failed to make "active efforts" as required by the Indian Child Welfare Act. Because we conclude that the superior court acted within its discretion in refusing to delay the termination trial and correctly found that the State made "active efforts," we affirm.

II. FACTS AND PROCEEDINGS

M.K., an Alaska Native, gave birth to I.K. on November 4, 1994. I.K.'s biological father, A.A., was arrested on murder charges during M.K.'s pregnancy and has been incarcerated since June 1994. A.A. was convicted of first-degree murder and sentenced to a sixty-six-year prison term in July 1995. Perhaps due to his incarceration, A.A. did not have knowledge of M.K.'s pregnancy or the birth of I.K. until the early spring of 1995.

In March 1995 the Department of Family & Youth Services (DFYS) filed a child in need of aid petition to assume legal custody of I.K., alleging (1) M.K.'s noncompliance with a drug and alcohol treatment program and a case plan for reunification of the family, (2) an extensive child protective services history reflecting M.K.'s narcotic use and neglect of her two oldest children, and (3) M.K.'s residence with her developmentally disabled sister who may have sexually abused M.K.'s oldest child. The petition listed both R.C., M.K.'s boyfriend, and A.A. as potential putative fathers.

On March 14, 1995, the superior court held a probable cause hearing to determine whether I.K. was a child in need of aid. At this hearing, both M.K. and R.C. represented that R.C. was the father of I.K. But on March 29, 1995, M.K. filed a paternity affidavit with the Child Support Enforcement Division (CSED) listing A.A. as the named defendant. Even so, other information in the affidavit reflected M.K.'s belief that R.C. was the father. The paternity information "locate sheet" also named R.C. as the "alleged" or "most likely" father.

DFYS took emergency physical custody of I.K. on April 7 because of M.K's failure to comply with her case plan. At a probable cause hearing on the emergency petition, DFYS raised the issue of the biological father's identity and suggested paternity testing.¹

While M.K. and R.C. were involved in these proceedings, CSED served A.A. with a complaint at Spring Creek Correctional Center in May 1995, alleging his potential paternity of I.K. A.A. denied paternity and requested blood testing.

The superior court held a review hearing of I.K.'s case in June 1995. DFYS reported that I.K. was still in foster care and that neither M.K. nor R.C. was progressing with their case plans. DFYS again mentioned that "[R.C.] was to get paternity testing because there is a question as to whether he is the biological father." At two subsequent review hearings in December 1995 and February 1996, DFYS still had not determined paternity but announced its intent to terminate any parental rights by including both possible fathers in its termination petition. DFYS subsequently petitioned to terminate the parental rights of M.K. as well as R.C. and A.A., without a conclusive determination of paternity.

Meanwhile, CSED took a blood sample from A.A. for testing in July 1995. Because M.K. did not make her scheduled appointments in August or November of 1995 to submit her sample, CSED contacted I.K.'s foster parent and drew I.K.'s blood to conduct a "motherless" test.² At the same time, R.C. informally denied paternity but would not sign an official denial. The "motherless" test later revealed that A.A. was the biological father of I.K. The court entered a judgment declaring A.A.'s paternity in August 1996. At that time, A.A. requested contact with his son and asked that DFYS consider A.A.'s mother for placement of I.K.

While incarcerated following conviction on the murder charge, A.A. has been placed on maximum security status because of extensive assaultive behavior including a recent assault on a prison staff member in April 1997. Yet A.A. has not taken any anger management or substance abuse classes offered at Spring Creek Correctional Center, claiming that those classes do not address his real problem with "fear."

In September 1997 the court of appeals reversed A.A.'s murder conviction. As a result, A.A. moved to continue the termination trial date from December 15, 1997 until after his new murder trial. The superior court denied this request.

The trial court terminated A.A.'s parental rights on April 19, 1998.³ The court determined that A.A.'s "unresolved problems with violence and impulse control ... placed the child at imminent and substantial risk of physical harm." The superior court specified that it did not consider A.A.'s murder conviction and instead focused on several previous instances of violence, including

his conviction of Assault in the First Degree in 1987—the shotgun incident; the sword or machete incident with [M.A.]; the violent lunchroom and telephone incidents that he has engaged in while he has been incarcerated[;] his own acknowledgment of domestic violence; and his own explanation and associated demeanor of the incidents above. In addition, it is important to note that the majority of the above-mentioned incidents occurred after his completion of an Anger Management course in 1987.

The court also found that in accordance with the Indian Child Welfare Act (ICWA) "[a]ctive efforts have been made to provide remedial services, which efforts have been unsuccessful." A.A. appeals both the trial court's denial of his motion to continue and its finding that the State met its "active efforts" requirement.

III. DISCUSSION

A. Standard of Review

We review a trial court's denial of a motion to continue for an abuse of discretion.⁴ We will consider "the particular facts and circumstances of each individual case to determine whether the denial was so unreasonable or so prejudicial as to amount to an abuse of discretion."⁵

When reviewing issues of termination, we will affirm a trial court's factual findings unless those findings are clearly erroneous.⁶ The question of whether the State has complied with the "active efforts" requirement of ICWA, however, presents a mixed question of law and fact.⁷ While we defer to the trial court's factual findings under the "clearly erroneous" standard, we review de novo any questions of law.⁸

B. The Trial Court Did Not Err in Denying A.A.'s Motion to Continue.

Because the reversal of A.A.'s conviction presented the possibility, either through an acquittal or plea bargain, that he might be released, A.A. maintains that the trial court "seriously prejudiced" him by denying his motion to continue. The State responds that continuing the termination trial for a period of time sufficient to allow retrial and, in the case of acquittal, to allow for A.A.'s rehabilitation upon release, would seriously jeopardize I.K.'s best interests by hindering his timely placement in a stable and permanent home.

We have previously addressed whether the trial court should await a final determination of a parent's criminal appeal before proceeding with a termination trial. In R.F. v. S.S.,⁹ the father's conviction for murder had been affirmed, but the appeal of the denial of his motion for a new trial was still pending.¹⁰ He argued that the trial court should not have terminated his parental rights before resolution of his appeal.¹¹ In affirming the trial court's decision, we emphasized that "[t]o leave a child in limbo during his formative years based upon the slim chance that R.F. may prevail on one of his many possible post-conviction relief measures contravenes the primary purpose of Alaska's adoption statute: to advance the best interests of the child."¹² Accordingly, in a termination trial, the best interests of the child, not those of the parents, are paramount.¹³ Thus, while there are "dangers of relying on a conviction that is not yet final,"¹⁴ a trial court should have the discretion to proceed to a termination trial without a final ruling on a parent's criminal appeal.

This case differs from R.F. in one significant respect, however. A.A. was not awaiting a decision on his appeal at the time of his termination proceeding; because the court of appeals had already overturned his conviction, A.A. was awaiting a new criminal trial. The Arizona Court of Appeals faced a similar situation in In re Pima County Juvenile Severance Action.¹⁵ In that case, the juvenile court terminated a father's parental rights based in part on his conviction for the murder of the mother.¹⁶ Because the Arizona Supreme Court reversed his criminal conviction, the father contended that the termination proceedings should be continued until after his new trial.¹⁷ The court of appeals affirmed the juvenile court's termination of parental rights, basing its decision on the "grounds for severance [that did] not hinge upon the criminal conviction."¹⁸ We agree with the Arizona Court of Appeals's conclusion that, even when a court has overturned a parent's conviction, that reversal does not...