Turner v. Pannick

• Citation: 540 P.2d 1051
• Decision Date: 25 September 1975
• Docket Number: No. 2293,2293
• Parties: Irene Elapuck TURNER, Appellant, v. May PANNICK, Appellee.
• Court: Supreme Court of Alaska (US)

Page 1051

540 P.2d 1051

Irene Elapuck TURNER, Appellant, v. May PANNICK, Appellee.

No. 2293.

Supreme Court of Alaska.

Sept. 25, 1975.

E. John Athens, Jr., Alaska Legal Services, Fairbanks, for appellant.

Robert B. Downes, Hodges & Assoc., Fairbanks, for appellee.

Before RABINOWITZ, Chief Justice, CONNOR and BOOCHEVER, Justices, and DIMOND, Justice Pro Tem.

OPINION

CONNOR, Justice.

This is an appeal from a judgment denying appellant's petition to obtain custody of her child Roberta from appellee.

Irene Turner filed a petition for a writ of habeas corpus in order to obtain custody of her two-year old daughter from appellant's sister, May Pannick. An order to show cause in the matter was entered and a hearing was held pursuant to he order. After both parties and their witnesses had given testimony, findings of fact and conclusions of law were made and judgment was entered against appellant.

Both sides agree that at the time the complaint was filed, appellant was 27 years old, divorced, pregnant and the mother of two children, Charles who was six years old and Roberta who was two years old.

Turner who currently lives in an apartment in Fairbanks with her son and an 18-year old unemployed roommate, receives $200 per month in welfare benefits. During the past year, appellant also received approximately $1000 under the Alaska Native Land Claims Settlement Act. Turner, who receives no child support from her former husband, is occasionally employed as a babysitter. Appellant testified that she and her mother cared for Roberta with help from appellee.

At the time of the hearing, Pannick was a 28-year old, unmarried woman employed as a civil service worker at Fort Wainwright. She lived in a house next to her parents' house and, prior to that, had lived at Fort Wainwright in base housing for four years. Although children were not permitted in base housing, Roberta often stayed with her during weekends and holidays.

In February 1972 Turner executed a power of attorney giving Pannick authority to care for Roberta. According to Turner, this power of attorney was executed in order to insure that Roberta would be cared for should anything happen to her while appellant was away.

Beginning in the spring of 1973 and continuing for the next six months, Turner lived in an apartment and trailer in Fairbanks with a man who is the father of her third child. Appellant's son, Charles, lived with her at these places, but her daughter remained at her parents' house. Turner frequently visited her daughter at her parents' house, and Roberta would spend some days and nights at the apartment and trailer. Turner testified that she always made certain that Roberta was cared for, and that she sometimes helped care for her during the day. According to appellant, her family enjoyed caring for Roberta and the child received a great deal of love and attention.

In October 1973 Turner moved back into the small house next to her parents' house and extensively remodeled the interior in order that she, Charles and Roberta could live there together. Appellant was forced to vacate the house because of a dispute with appellee. Turner then moved into the apartment in which she presently resides with her son.

Both sides presented conflicting testimony with respect to whether or not Turner gave Roberta to Pannick. Appellee and her witnesses testified that appellant gave Roberta to her and that she had taken care of and raised Roberta, with some help from her parents, ever since about the time Roberta was born.

The superior court denied Turner's petition to obtain custody of her child, Roberta, without making a finding that appellant was unfit or had abandoned Roberta. The court concluded that award of custody to Pannick was in the child's best interest.

In deciding this appeal, we must resolve the following issues:

1. Was it error for the lower court to deny appellant's petition where the court made no finding that appellant was unfit or had abandoned her child?

2. Did the lower court err in applying the best interests of the child test rather than making a determination as to whether the welfare of the child required her to be placed in the custody of a non-parent?

Turner argues that the burden of proof rested with appellee to prove appellant's unfitness, or that the welfare of the child required appellant's petition to be denied, or that appellant had abandoned her child. According to appellant, the burden of proof rested with appellee because of the nature of the proceeding ¹ and because of the presumption that parents are fit to have custody of their children. ² In addition, Turner notes that in Alaska preference is given to parents in a custody dispute with a non-parent.

In Wilson v. Mitchell, 406 P.2d 4, 7 (Alaska 1965), we held that

'(The) parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents.'

In so holding we reaffirmed our earlier decision in Hickey v. Bell, 391 P.2d 447 (Alaska 1964).

In Bass v. Bass, 437 P.2d 324 (Alaska 1968), while specifically approving our holding in Wilson v. Mitchell, supra, we found in favor of the grandparents because the record presented evidence of the mother's emotional immaturity, her general neglect of the child's health, and her overall lack of interest in bringing up the child.

Appellant argues that, in light of Wilson and Bass, proof of a parent's unfitness is necessary before the parent can be deprived of his child.

Appellee responds by arguing that Wilson sets forth two requirements, fulfillment of either of which will justify a lower court's decision to award custody to a non-parent despite the preference normally given to a natural parent. The tests are that the non-parent clearly shows that the parent is unfit or that the welfare of the child requires it to be in the custody of the non-parents. Pannick concludes that the superior court correctly relied on the second test and, therefore, need not have found that Turner was unfit or had abandoned her child.

The superior court, however, did not find that the welfare of the child required her to be in the custody of the non-parent but concluded that it was not in the best interests of the child to grant the petition. The application of the best interests standard is not in accordance with our decision in Wilson v. Mitchell, supra.

A review of pertinent Alaska cases reveals a certain ambiguity with respect to the test applicable to suits by a biological parent to regain custody of his child from some third party.

Wilson v. Mitchell, supra, at 7 requires that, in order for custody to be awarded to a non-parent, the parent must be deemed unfit or the welfare of the child must demand that custody remain with the nonparent, at least until further proceedings are held.

In Hickey v. Bell, 391 P.2d 447, 448 (Alaska 1964), we held that:

'The trial court properly applied the majority view which is that as between parents and grandparents adversely claiming custody of a child, either parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents.' (footnote omitted)

On the other hand, in Bass v. Bass, 437 P.2d 324, 325 (Alaska 1968), we reaffirmed our conclusion in Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962) that:

'In determining the custody of children the trial court should be guided by the rule of quite general application that the welfare and the best interests of the children should be given paramount consideration.' (footnote omitted)

However, in reaching our decision in Bass we also relied on the following language in Wilson v. Mitchell, supra, at 7:

'(The) parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents.' (footnote omitted)

Moreover, we note that Rhodes involved a custody dispute between two parents while Bass and Wilson invovled a dispute between a natural parent and a non-parent.

Thus, since the case law is not dispositive, we must now determine the standard applicable to custody disputes arising between natural parents and some third party.

In order to satisfy the 'welfare of the child' requirement, the non-parent must show that it clearly would be detrimental to the child to permit the parent to have custody. On the other hand, under the 'best interests' test, the court is free to consider a number of factors including the moral fitness of the two parties; the home environments offered by the parties; the emotional ties to the parties by the child; the emotional ties to the child by the parties; the age, sex or health of the child; the desirability of continuing an existing child-third party relationship; and the preference of the child. ³

The California supreme court, in In re B.G., 114 Cal.Rptr. 444, 523 P.2d 244 (1974), recognized the danger of giving courts the power to award custody of children to persons other than a parent solely on the grounds of best interests. If 'best interest' of the child is the only criterion, then a judge may take children from their parents because the judge personally disagrees with the parents' limited means. The California court felt that the legislature, by passing a statute requiring the court to find that an award of custody to the parent would be detrimental to the child in a dispute between a parent and a non-parent, evidenced its desire to avoid the situation outlined above and exemplified in Painter v. Bannister (1966), 258 Iowa 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227.

In Painter an Iowa court awarded custody to the minor's grandparents because it disapproved of the Bohemian...