Nada A. v. State, s. 6546

• Decision Date: 25 February 1983
• Docket Number: Nos. 6546,6693,s. 6546
• Citation: 660 P.2d 436
• Parties: NADA A., Appellant and Cross-Appellee, v. STATE of Alaska, Appellee and Cross-Appellant.
• Court: Alaska Supreme Court

Page 436

660 P.2d 436

NADA A., Appellant and Cross-Appellee, v. STATE of Alaska, Appellee and Cross-Appellant.

Nos. 6546, 6693.

Supreme Court of Alaska.

Feb. 25, 1983.

John Hagey, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage, for appellant and cross-appellee.

D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Wilson L. Condon, Atty. Gen., Juneau, for appellee and cross-appellant.

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

OPINION

CONNOR, Justice.

Nada A. appeals the termination of her parental rights to her son, O.A. At the conclusion of the termination hearing in superior court, the judge found that O.A. was a child in need of aid and that his mother's disregard of her parental obligations was likely to continue. The court ordered the termination of her parental rights, but further ordered that in the event of a change in circumstances, Nada could apply for a reconsideration of the termination at any time before O.A. is adopted. The state cross-appeals this order permitting a reconsideration of the termination.

Nada gave birth to O.A. on June 29, 1978. Her husband, Mohammed, repeatedly battered both his wife and child. In January, 1979, shortly after one of these incidents, Nada shot and killed Mohammed. She was then 17 years old. After the shooting, Nada left Fairbanks with O.A. and went to stay with her sister, Marie Gee, in Washington State. A few days after her arrival, Nada was arrested and charged with first degree murder. She was then incarcerated in a juvenile facility in Washington until she reached age 18. With the exception of a few months spent in temporary foster care, O.A. lived with Marie while Nada was incarcerated. Marie brought O.A. to the prison facility twice weekly for visits with Nada.

After entering a negotiated plea to the charge of manslaughter in Fairbanks, Nada was sentenced in July of 1980. Marie brought O.A. with her to Alaska for the sentencing. After sentencing, Nada was released on appellate bond and O.A. rejoined her.

On October 15, 1980, Nada took O.A. to the babysitter's, packed a few clothes and went to Anchorage to escape mounting personal pressures. Nada did not return to Fairbanks because she feared that she would be put in jail and would be unable to get O.A. back.

Emergency custody of O.A. was assumed by the Division of Family and Youth Services [DFYS] on October 16, 1980. From the last week in October of 1980 until the present, O.A. has remained in the foster care of the L. family.

Nada remained in Anchorage until June 27, 1981, when she voluntarily turned herself in to the authorities. After she was transported back to Fairbanks, Nada tried to make contact with O.A. through the DFYS. Her request was refused, because the DFYS had decided to seek termination of her parental rights. On July 1, 1981, a petition for termination of parental rights was filed by the state. The court found O.A. to be a child in need of aid as a result of physical abandonment under AS 47.10.010(a)(2)(A). It then had authority under AS 47.10.080(c)(3) to terminate Nada's parental rights upon a showing, by clear and convincing evidence, that parental conduct leading to the "child in need of aid" determination was likely to continue. ¹ The order terminating Nada A.'s parental rights was signed on January 11, 1982. This appeal followed. Adoption proceedings have been stayed pending disposition of the appeal.

I. ABANDONMENT

Nada argues that the trial court erred in its finding of "physical abandonment." She claims that the trial court applied an incorrect legal standard in reaching this determination. Specifically, Nada alleges that the court relied on the subjective viewpoint of the child rather than on an objective standard. She contends that a proper application of the abandonment test would result in a finding that her conduct did not evidence a disregard of her parental obligations.

In D.M. v. State, 515 P.2d 1234 (Alaska 1973), in rejecting the application of a subjective standard to measure a parent's intention to abandon a child, we stated:

"Whether or not there has been an abandonment within the meaning of the statute is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well."

515 P.2d at 1236-37. We have followed this standard consistently. See In re E.J. (T.), 557 P.2d 1128, 1131 (Alaska 1976); In re B.J., 530 P.2d 747, 748-49 (Alaska 1975); In re Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974); In re Adoption of A.J.N., 525 P.2d 520, 523 (Alaska 1974); D.M. v. State, 515 P.2d 1234, 1236-37 (Alaska 1973). We agree with the state's view that the court properly found the existence of a physical abandonment under the objective standard.

The test for abandonment has two prongs: (1) has the parent's conduct evidenced a disregard for his or her parental obligations, and (2) has that disregard led to the destruction of the parent-child relationship. Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974). A review of the record indicates that the court had before it sufficient objective evidence to satisfy the first prong of the abandonment test. The testimony about how Nada had fled from Fairbanks leaving O.A. with a babysitter provides sufficient objective evidence indicating disregard of parental obligations. In addition, at the hearing, the trial judge specifically referred to the eight month period of separation during which Nada lived in Anchorage as "for all practical purposes destr[oying] the parent/child relationship." Therefore, the trial court properly applied the legal standard and its finding of abandonment should not be reversed.

Nada also argues that the trial court erred by considering her incarceration as abandonment. She contends that in order to constitute abandonment, the acts of the parent must be willful. Yet, incarceration was beyond her control and, she claims, actually resulted from her attempt to protect O.A. from his father.

We have said that "[i]n order to constitute abandonment, the acts of the parent must be willful." In re B.J., 530 P.2d 747, 750 n. 12 (Alaska 1975). The trial judge did orally state that he considered involuntary incarceration to constitute abandonment, but the written findings of fact, which were submitted by the state and signed by the court, referred to the voluntary absence from October of 1980 to June of 1981 as the relevant conscious disregard of parental obligations. ² Consequently, we find no reversible error.

II. BEST INTERESTS OF THE CHILD

Nada argues that the trial court misinterpreted our previous decisions and incorrectly used the best interests of the child as the sole criterion for its decision to terminate her parental rights. She claims that the best interests of the child should be considered only after it has been shown that there is sufficient parental misconduct to justify termination.

The state argues that the best interests of the child are a significant, but not dispositive, consideration at each step in determining whether to terminate parental rights. ³ It claims that the trial court's actions were consistent with the approach we have repeatedly espoused that the best interests of the child are to be considered only after a finding of parental unfitness or a determination that the first prong of the abandonment test has been satisfied. See, e.g., In re Adoption of K.S., 543 P.2d 1191, 1195 (Alaska 1975); In re Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974); In re Adoption of A.J.N., 525 P.2d 520, 523 (Alaska 1974). While the best interests of the child become relevant at some point, there first must be a showing of parental conduct sufficient to justify termination. Id. The trial court's findings clearly show that it was aware that several factors in addition to best interest enter into a termination order. In deciding to terminate Nada's parental rights, the trial court followed the correct procedure. It did not merely compare the merits of the home to be provided by Nada with that of the L. family.

III. TRIAL COURT'S FINDINGS

Nada argues that the court's finding that her disregard of her parental obligation was likely to continue in the future was clearly erroneous.

AS 47.10.080(c)(3) requires as prerequisites to termination of parental rights that first, the child is a child in need of aid "as a result of parental conduct," and second, clear and convincing evidence that "the parental conduct is likely to continue to exist." The parental conduct relied on by the trial judge in determining that O.A. was a child in need of aid was:

"That on October 15, 1981, N.A. left her child, O.A., with a babysitter and did not return, thereby exhibiting a conscious disregard for the needs and welfare of her child and of her parental obligations to O.A."

According to our reading of the statute, there must then be a showing by clear and convincing evidence that this same conduct is likely to continue. The findings below are deficient in this regard. The only relevant finding is:

"That N.A. is likely to continue to demonstrate a conscious disregard of the obligation owed by a parent to a child even after her release from incarceration because she suffers from an impulsive personality disorder."

The only testimony upon which the court could have relied in making this finding was rendered by Dr. Rothrock, a psychiatrist who had interviewed Nada only once for one hour, admitted he knew nothing about her parenting abilities and qualified his prognosis with the statement that he could "only answer that question in generalities, because ... [he had] not had any extended contact with [Nada A.]."

Dr. Rothrock's opinion was not shared by Robert Dunn, a psychological counselor, who offered opposing expert testimony that N.A. had a high probability of success in controlling her problem, nor by the social workers and others who knew Nada well and felt that she had made...