(Cite as: 723 P.2d 1274)
Court of Alaska.
of Alaska, Respondent.
the Matter of K.H., C.H., and J.H., Minor Children Under
the Age of Eighteen
Aug. 29, 1986.
Rabinowitz, C.J., filed a dissenting opinion in which Matthews, J.,
decision to let children move with their foster family to
Alabama constituted a de facto termination of father's right of
"reasonable visitation" and therefore was subject to review under clear
and convincing evidence standard. AS 47.10.084(c).
Raymond Funk, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender,
Anchorage, for petitioner.
D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Harold M. Brown,
Atty. Gen., Juneau, for respondent.
Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Navajo Nation.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
This case concerns the appropriate standard of review for state
decisions which essentially terminate a natural parent's right of reasonable
visitation under AS 47.10.084(c). The Department of Health and Social
Services (the state) decided to allow *1275
D.H.'s minor children, who had been adjudicated as children in
need of aid, to move from Alaska to Alabama with
their foster care family. The trial court reviewed the state's
decision and determined that a preponderance of the evidence showed
that the move was in the children's best interests. We
conclude that the trial court applied an incorrect burden of
proof. Therefore, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
K.H. (5 years old), C.H. (3 years old) and J.H.
(2 years old), are the minor children of D.H. and
R.H., who are no longer married. R.H. is a Navajo
Indian and is no longer living in Alaska.
There is a fourth younger child who was in child
care for a period of time. D.H. regained custody of
her in December 1985. It does not appear that she
was ever in the custody of the state or in
the foster family with the other three children.
In March 1984 the state took temporary custody of the
children based on a voluntary placement agreement with the parents.
A few months later, the children
were adjudicated as children in need of aid.
The parents and state stipulated that the state could retain
custody for one year. In February 1985 the state filed
a petition for termination of parental rights which was held
in abeyance due to the parents' efforts to resolve the
problems which led to the children's removal.
In September 1985 the parents stipulated to an extension of
the state's custody of the children for a period not
to exceed two years. The court ordered an extension of
custody based upon this stipulation. The stipulation provided a plan
for either or both parents to gain legal and physical
custody of the children if they became able to provide
an appropriate, stable and safe home for the children.
After entering the stipulation, D.H. visited the children once a
month. Since 1986, D.H. increased his visits to once a
week for a period of several weeks.
[FN2] In December 1985 the father of the foster family,
who is in the United States Army, was notified that
he was being transferred from Fairbanks, Alaska to Dothan, Alabama.
A month later, the state notified D.H. that it was
going to resubmit its petition to terminate parental rights, and
meanwhile allow the foster parents to continue their custody of
the three children, which included moving them to Alabama. The
state has not yet filed a new petition nor has
a trial date been set on the original petition.
The state claims D.H. visited the children four times in
1984, seven times in 1985 and telephoned them 19 times
D.H. filed a motion to review the state's decision to
allow the children to move to Alabama. After a hearing
was held in late February 1986, the superior court denied
D.H.'s motion, concluding that "the continued placement of the minor
children with the current foster family is in the best
interests of the children and is not contrary to any
applicable provision of law." The court recognized that D.H. showed
significant progress in his current rehabilitation efforts and that the
state's decision would substantially impair his visitation rights. Additionally, it
stated that the decision would be reviewed periodically to assess
the likelihood of placement with the father.
D.H. petitioned this court for an emergency stay and review.
The state opposed both.
[FN3] This court granted D.H.'s petition.
Counsel for the mother appeared in the trial court but
took no position. There is no pleading from the guardian
The petition for review was filed on March 7, 1986
and granted April 3, 1986 over the state's opposition. Oral
argument was heard in Fairbanks April 21, 1986 and a
summary order of reversal and remand was entered
the next day. Chief Justice Rabinowitz and Justice Matthews dissented
in each instance.
A. STANDARD OF REVIEW
AS 47.10.084(c) provides in pertinent part:
(c) When there has been transfer of legal custody or
appointment of a guardian and parental rights have not been
terminated by court decree, the parents shall have residual rights
and responsibilities. These residual rights and responsibilities of the parent
include, but are not limited to, the right and responsibility
of reasonable visitation....
D.H. argues that the state's decision to let the children
move with their foster family to Alabama constitutes a de
facto termination, not a mere limitation, of his .084(c) right
of "reasonable visitation." He contends that the standard of review
adopted in K.T.E.
689 P.2d 472 (Alaska 1984) applies since, like K.T.E.,
this case involves a decision to terminate parental visitation prior
to termination of parental rights.
the superior court independently determines whether the state has proved
by clear and convincing evidence that termination of parental visitation
is in the child's best interest. 689 P.2d at 478.
The state argues that the abuse of discretion standard applies
since it is making
a placement decision pursuant to AS 47.10.080(c)(1) rather than a
decision terminating D.H.'s right of reasonable visitation under AS 47.10.084(c).
[FN5] It contends that it need only show by a
preponderance of the evidence that the placement of the children
with their foster family is in the children's best interest.
The state alternatively characterizes its decision as merely restricting visitation.
AS 47.10.080(c)(1) provides:
If the court finds that the minor is a child
in need of aid, it shall
order the minor committed to the department for placement in
an appropriate setting for a period of time not to
exceed two years or in any event past the date
the minor becomes 19 years of age, except that the
department may petition for and the court may grant in
a hearing (A) two-year extensions of commitment which do not
extend beyond the minor's 19th birthday if the extension is
in the best interests of the minor and the public;
and (B) an additional one-year period of supervision past age
19 if the continued supervision is in the best interests
of the person and the person consents to it; the
department may transfer the minor, in the minor's best interests,
from one placement setting to another, and the minor, the
minor's parents or guardian, and the minor's attorney are entitled
to reasonable notice of the transfer;
In arguing that it is making a placement decision, the
only limitation the State has imposed on visitation in the
past and would expect to continue in effect for the
foreseeable future is that visitation between Mr. [H] and the
children needs to be supervised. Mr. [H] knows where the
children's foster home is; he is welcome to call there
at any reasonable time and on any reasonable frequency; he
has been welcomed by the foster parents to visit in
their home on this basis since August 1984. As the
evidence will show Mr. [H] has not chosen to exercise
the opportunities he has had for visitation with any regularity
or appropriate frequency. He has relied heavily on telephone contacts
with and about the children and could continue to do
so. He could arrange to visit them at their new
home if he wanted to.
The proper standard of review for placement decisions is abuse
of discretion. In
the Matter of B.L.J.,
717 P.2d 376, 380-81 (Alaska 1986); State
682 P.2d 1131, 1134 (Alaska App.1984). The superior court can
review the state's placement decision to see if it is
in the best interests of the minor. B.L.J.,
717 P.2d at 380.
The trial court did not directly address the placement argument,
rather it construed the guidelines set forth in K.T.E.
as requiring "an independent review of the [state's] decision and
an application of the preponderance of the evidence
standard" since parental visitation was being limited rather than denied.
Whether or not this case involves a placement decision, we
conclude that the state's action constitutes a de facto termination
of D.H.'s visitation rights. First, D.H. is unemployed and virtually
penniless. Since the state will not provide air fare to
he cannot visit the children on a regular basis there.
D.H. would be limited to phone "visits" with the children
and these visits would further be limited since D.H. lacks
the funds to call regularly. Additionally, long-distance phone calls do
not fulfill a parent's substantive right of reasonable visitation. Therefore,
the state's decision infringes upon and conflicts with a parent's
rights provided in AS 47.10.084(c).
We recognize that a parent does not have an absolute
right to visitation. K.T.E.,
689 P.2d at 477. Here, however, the state's decision deprives
D.H. of his right to any visitation.
Second, the state's decision also conflicts with the stipulation, which
included a plan by which D.H. could regain custody of
the children if he engaged in various rehabilitative activities. The
court's decision undermines this plan as well as D.H.'s efforts
to establish and strengthen ties with his children.
The policy behind Chapter 47 is to preserve and strengthen
family ties whenever possible. AS 47.05.060. Other states have construed
similar child welfare provisions and expressed the policy as one
"to facilitate, whenever possible, the return to their natural families
of children." In
the Matter of Pablo C.,
108 Misc.2d 842, 439 N.Y.S.2d 229, 231 (Fam.Ct.1980). See
also In the Interest of Rhine,
310 Pa.Super. 275, 456 A.2d 608, 613 (1983). A substantial
impairment which amounts to termination of the parental rights of
reasonable visitation does not comport with the policy of preserving
family ties. See
456 A.2d at 613 (allowance of visitation comports with the
Act's express purpose of preserving the family).
A termination of visitation rights exists not only where the
state formally obtains a termination order but also where the
state's decision as a practical matter precludes the parent from
exercising his or her right of reasonable visitation. We do
not focus on the fact that the state has not
expressly denied D.H.'s visitation rights since to do so would
elevate form over substance.
For these reasons, the standard of review set forth in
is appropriate in this case since the state's decision here
constitutes a de facto termination of D.H.'s right of reasonable
visitation. The case must be remanded for the trial court
to determine independently whether clear and convincing
evidence shows that the children's best interests are served by
disallowing parental visitation.
The parties dispute whether removal of the children to Alabama
comports with the Indian Child Welfare Act (ICWA) 25 U.S.C.
(1983). D.H. argues that the state must show by clear
and convincing evidence that the children's special needs justify their
placement in Alabama, which is not within reasonable proximity of
their Fairbanks home. The state argues that the preponderance of
the evidence standard applies. Although ICWA applies here, we find
it unnecessary to address the ICWA claims due to our
resolution of the case under AS 47.10.084(c).
The decision of the superior court is REVERSED and REMANDED
for proceedings consistent with this opinion.
RABINOWITZ, Chief Justice, with whom MATTHEWS, Justice, joins dissenting.
I dissent from the majority's holding that the standard of
review set forth in K.T.E.
689 P.2d 472 (Alaska 1984) is applicable "since the state's
decision here constitutes a de facto termination of D.H.'s right
In response to D.H.'s motion, the superior court concluded that
continued placement of the minor children with the current foster
family was in their best interests and was not contrary
to any applicable provision of law. The superior court, in
recognition of the fact that the father's reasonable rights of
visitation under AS 47.10.084(c) were being substantially impaired, ordered that
its decision regarding foster family placement be reviewed at least
every three months. In rejecting D.H.'s contention that the clear
and convincing standard adopted in K.T.E.
controlled, the superior court stated:
this case, parental visitation is not being completely terminated. However,
given [D.H.'s] indigent status, it is clear that his visitation
rights will be substantially impaired. Given that substantial impairment, the
court determines that the applicable procedure is an independent review
of the Division's decision and an application of the preponderance
of the evidence standard.
In my view, the superior court's choice of the preponderance
of the evidence standard was appropriate. As the superior court
correctly noted, D.H.'s visitation rights were not terminated, rather they
were substantially limited. [FN1]
In such circumstances application of the clear and convincing standard
is not required.
The only limitation the state insists upon is that visitation
between D.H. and the children be supervised. It is open
to D.H. to continue his telephone contacts with the children.
In the factual context of this case it is my
view that D.H. is not entitled to the protection of
the Indian Child Welfare Act. Thus it is not necessary
to address any 25 U.S.C. § 1915(b)
723 P.2d 1274