SB v. STATE DEPT. OF HEALTH AND SOC. SER., S-10032.

• Decision Date: 27 December 2002
• Docket Number: No. S-10032.,S-10032.
• Citation: 61 P.3d 6
• Parties: S.B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
• Court: Alaska Supreme Court

61 P.3d 6

S.B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.

No. S-10032.

Supreme Court of Alaska.

December 27, 2002.

Roger D. Snippen, Law Offices of Roger D. Snippen, Juneau, for Appellant.

Brad J. Brinkman, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Janine Reep, Assistant Public Advocate and Guardian Ad Litem, Juneau, and Brant McGee, Public Advocate, Anchorage, for GAL.

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

OPINION

CARPENETI, Justice.

I. INTRODUCTION

The superior court terminated the parental rights of Sara Blake¹ to her son, Timothy. Blake argues that the superior court lacked both subject matter and personal jurisdiction, and erred in refusing to appoint her new counsel and in denying her request for a continuance. Because the superior court had subject matter jurisdiction under the home state jurisdiction provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), we reject Blake's first argument. Because personal jurisdiction is not required for "status" determinations under the UCCJEA, we reject Blake's second argument. And because we conclude that her remaining arguments concerning the appointment of new counsel and denial of a continuance are without merit, we affirm the termination of Blake's parental rights.

II. FACTS AND PROCEEDINGS

Timothy was born to Sara Blake and John Williams² in 1991 in California. Blake has an extensive criminal history, including multiple arrests for drug possession and prostitution. Blake has failed to consistently care for any of her five children for a substantial amount of time. During the termination proceeding, Blake admitted that she has "spent fourteen years in prison out of the last seventeen." Blake has had a serious drug problem since the age of fourteen, well over twenty years. In addition, Blake has been investigated on numerous occasions over a period of thirteen years for child abuse and neglect.

At four months of age, Timothy was removed from his mother's care and placed with his paternal grandmother, Laura Iverson. In 1992 the Superior Court of California appointed Laura to be Timothy's guardian and prohibited Blake and Williams from visiting him. Over the next five years, Laura's health declined, and in November 1996 she sent the child to Juneau to live with Lynne Bailey, John's ex-wife and mother of Timothy's two half-siblings. In November 1997 Laura wrote a notarized letter purporting to transfer guardianship to Lynne. Laura died in 1998. Timothy has lived in Alaska with Lynne, her new husband, and his two half-siblings since 1996.

The Alaska Department of Health and Social Services, Division of Family and Youth Services (DFYS), filed a Child in Need of Aid (CINA) petition in October 1999. Superior Court Judge Patricia A. Collins appointed a public defender to represent Blake and appointed a guardian ad litem (GAL) for Timothy. The court adjudicated Timothy a child in need of aid in February 2000 under AS 47.10.011 sections (1), (2), (9), and (10),³ and committed him to the custody of DFYS in April 2000. DFYS filed a petition to terminate Blake's parental rights, and the court did so in January 2001 after conducting a termination trial in November 2000.

Blake now appeals.

III. STANDARD OF REVIEW

We will overturn a factual finding in a CINA case only if it is clearly erroneous.⁴ "A finding is clearly erroneous if it leaves us with a `definite and firm conviction on the entire record that a mistake has been made.'"⁵ We review questions regarding both subject matter jurisdiction and personal jurisdiction de novo, as "[j]urisdictional issues are questions of law subject to this court's independent judgment."⁶ Accordingly, this court's duty is "to adopt the rule of law that is most persuasive in light of precedent, reason, and policy."⁷

Parents have a due process right to effective assistance of counsel in proceedings terminating their parental rights.⁸ Whether this due process right, such as the right to effective assistance of counsel, has been violated is a question of law.⁹ As we examine questions of law under a de novo standard of review, we will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."¹⁰

Refusals to grant continuances are reviewed for abuse of discretion.¹¹ The superior court's refusal to grant a continuance will be upheld unless "after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred."¹²

IV. DISCUSSION

A. The Trial Court Had Jurisdiction To Terminate Blake's Parental Rights to Timothy.

1. Subject matter jurisdiction

Blake claims the superior court lacked subject matter jurisdiction to terminate her parental rights to Timothy. Blake concedes that the superior court had temporary emergency jurisdiction over Timothy, but argues that the court wrongfully retained jurisdiction for longer than necessary to ensure his safety. The superior court did not address the question of California's jurisdiction, holding only that "[t]he court has jurisdiction over the parties and the subject matter of the proceeding as the child resided in Alaska for more than six months preceding the initiation of [the] proceedings."¹³

This case requires us to consider the interrelationships of two provisions of the UCCJEA. We must first determine whether the superior court's termination order modified a child custody determination made by the California court, which would require Alaska to have jurisdiction to modify California's determination under AS 25.30.320. If the superior court's termination order did not modify a California child custody determination, we must then determine whether Alaska had jurisdiction to make an initial custody determination under AS 25.30.300.

a. The superior court's order did not modify a California child custody determination.

Alaska's jurisdiction to modify the child custody determinations of other states is severely limited by AS 25.30.320.¹⁴ Because that statute applies only to the modification of child custody determinations, we must decide whether the California order constituted a "child custody determination." Alaska Statute 25.30.909(3) defines that term as:

a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child, including a permanent, temporary, initial, and modification order, except that the term does not include an order relating to child support or other monetary obligation of an individual....

If the death of Timothy's guardian terminated California's guardianship order, California's original guardianship determination is not an existing, ongoing "child custody determination" capable of modification, and Alaska's jurisdiction is not limited by AS 25.30.320. We look to California law to determine whether the California order survived the death of Timothy's guardian. Section 2630 of the California Probate Code provides that the relationship of guardian and ward is terminated by the death of either, but that the California court retains jurisdiction following such death "for the purpose of settling the accounts of the guardian or conservator or for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts or upon the termination of the relationship."¹⁵ But any order incident to the wrapping up of the accounts of the guardian under Section 2630 of the California Probate Code would not be an order providing for the legal or physical custody of the child or visitation, and thus could not constitute a "child custody determination" under AS 25.30.320. Accordingly, we conclude that with the death of the guardian there was no existing child custody determination.

Alternatively, California might have resuscitated its earlier child custody order by using its power to appoint a new guardian. Construing the predecessor statute to section 2630, a California court in In re Estate of Mims¹⁶ held that while the death of a guardian automatically revokes that guardian's appointment, the court may appoint a new guardian without specifically terminating the first guardianship.¹⁷ But In re Estate of Mims limited this holding by stating that the guardianship "continues, but a new guardian must be appointed."¹⁸ As previously described, the Superior Court of California appointed Laura Iverson as Timothy's guardian in 1992, and she died in April 1998. The order contains no provision covering this situation, and California did not act to appoint a new guardian. Because California did not appoint a new guardian, its "child custody determination" ended with the death of Timothy's guardian.

Finally, it might be argued that the California court's no-contact order constituted a "child custody determination." We reject that argument, because AS 25.30.909(3), in defining the phrase, specifies only affirmative custodial orders, rather than orders merely precluding contact.

California law also supports the conclusion that California did not possess modification jurisdiction under its Uniform Child Custody Jurisdiction Act (UCCJA), which is applicable because it was in effect as of October 1999,¹⁹ when this suit was filed.²⁰ California's UCCJA²¹ provided that California had neither initial nor modification jurisdiction if it was no longer the home state of the child and no longer had a significant connection to the child.²² In determining its home state jurisdiction, California looks to "where the children live, where the most evidence of their daily living conditions will be found, where the continuity and stability of their parental relationship and their daily routines will be least disrupted by the legal procedure....[¶] The children's home is the presumptively correct forum."²³ Under this test, it is clear that...