R.J.M. v. State

EASTAUGH, Justice,

with whom COMPTON, Chief Justice, joins, dissenting.

In my view, the superior court did not err in finding J.M. a CINA under AS 47.10.010(a)(2)(F) (now AS 47.10.010(a)(6)).1 I therefore dissent from the court’s discussion of that subsection and would affirm the judgment below. Although the result the court reaches is preferable to outright reversal in favor of R.J.M., it is much less desirable than outright affirmance, the result I would reach.

C. AS i7.10.010(a)(2)(F)

The court reasons that the phrase “substantial physical abuse or neglect” in AS 47.10.010(a)(2)(F) cannot be read as the superior court read it, i.e., as though “substantial” modifies both “physical abuse” and “neglect.” The court explains its reasons well, but I cannot agree with its conclusion. I read subsection (a)(2)(F) to encompass “substantial ... neglect,” including emotional neglect. To read it otherwise leaves a dangerous gap in the protection I think the statute was intended to provide.

Alaska Statute 47.10.010(a)(2) appears to me to be intended to provide comprehensive protection for children in jeopardy. In In re S.A., 912 P.2d 1235, 1240 (Alaska 1996), the court noted that subsection (A) addressed situations in which the parent abandons the child, the child runs away, or the child refuses to accept the parents’ care. Id. at 1241. This court summarized subsections (B) through (F) as follows: “Under subsections (B) through (F), only serious forms of parental misconduct can support a CINA adjudication. Subsection (B) deals with failure to provide needed medical treatment. Subsection (C) concerns ‘substantial physical harm’ caused by parental conduct. Subsection (D) addresses sexual abuse. Subsection (E) is about parental encouragement of criminal conduct. And subsection (F) speaks of ‘substantial physical abuse or neglect.’ ” Id. at 1240. Although I dissented from the court’s interpretation of subsection (A), id. at 1242, the court’s summary of the statute’s subsections provides a useful overview of the scope of AS 47.10.010(a)(2).2

*872The statutory list of hazards that justify CINA jurisdiction seems thorough and complete. The list appears to embrace all types of hazards posed to children at risk; likewise, it appears to address all sources of substantial harm, posed either directly by the parents or guardians, or by external forces not remedied by parents or guardians. There is no reason to think the legislature intended to catalogue possible hazards and sources of harm, but intentionally declined to reach the broad and well-recognized harm resulting from emotional neglect.3

There are several grammatically permissible ways to read the phrase “substantial physical abuse or neglect.” One way is to read both adjectives, “substantial” and “physical,” as modifying both nouns, “abuse” and “neglect.” A second way is to read “substantial” as modifying both “physical abuse” and also “neglect.” A third way is to read the phrase as though neither adjective modifies the noun “neglect.” Thus, the phrase might alternatively be read as though it were written as follows: (1) “substantial physical abuse or substantial physical neglect”; (2) “substantial physical abuse or substantial neglect”; or (3) “neglect or substantial physical abuse.”

The third reading leaves “neglect” unmodified and therefore unlimited. It seems unlikely the legislature intended nonsubstantial neglect to justify CINA jurisdiction. Context supports this conclusion, because “only serious forms of parental misconduct can support a CIÑA adjudication” under subsections (B) through (F). In re S.A, 912 P.2d at 1240.

As for the second reading, there is no grammatical reason why the adjective “substantial” cannot modify both “physical abuse” and “neglect.” Syntax does not preclude this reading, although the court holds to the contrary. This second reading is also valid contextually because the requirement of “substantial” neglect prevents CINA jurisdiction from being lightly invoked for trivial harms, and the quality of harm is comparable to that required under other passages in subsection (a)(2).

My reading is in part propelled by my view that the statute was intended to provide comprehensive protection, and that subsection (a)(2)(F) is the most fitting source of jurisdiction when a child suffers emotional neglect. That harm is not directly treated by subsection (a)(2)(B), which instead deals with the parents’ failure to obtain professional assistance needed to treat a child’s emotional problems. The failure to provide treatment under that subsection requires proof of elements not required by subsection (a)(2)(F).

The first reading is also grammatically permissible. It is the heading the court prefers. It is not the reading I think the legislature intended, however, because it offers substantially less protection than the grammatically and contextually valid reading I propose. The purpose of AS 47.10.010, after all, is to confer jurisdiction to protect children. Given two grammatically correct ways of reading a remedial, protective statute, we should not adopt a reading that is substantially less protective.

The court declines for a number of reasons to read subsection (a)(2)(F) as I would.

It first relies on syntax to reason that there is no basis for splitting the modifiers in the phrase “substantial physical abuse or neglect” and to read “substantial,” but not “physical,” as modifying “neglect.” Maj. op. at 862. My disagreement with that reason is explained above.

The court next reasons that common definitions of “abuse” and “neglect” do not suggest that “physical” was intended to modify one word but not the other. Maj. op. at 862-863. These common definitions do not aid the court’s analysis, although to the extent they imply an active/passive dichotomy, they are consistent with restricting “physical” to “abuse.” Moreover, for reasons discussed infra, I believe these common definitions should also be read in light of the specialized definitions the legislature adopted in similar contexts.

Next, reasoning that “abuse” and “neglect” are overlapping corollary terms for causes of *873“the very same harm,” the court concludes that it would make no sense to limit the subsection’s coverage to abuse that is physical, while extending it to cover neglect that is physical, mental, emotional, or social. Maj. op. at 863-864. This reason provides the strongest support for the reading the court proposes.

The trouble with this reason is that it assumes the legislature intended to reach the “very same harm” for both abuse and neglect. Unfortunately, interpretation of AS 47.10.010(a)(2) has long been problematic, and we have often struggled to interpret its provisions consistently and rationally, with mixed results. I would be more willing to assume that the legislature intended to reach only one type of harm, physical and not emotional, in subsection (a)(2)(F) if the legislative history did not support a different conclusion. When the legislature amended subsection (a)(2) by adding subsection (F) for children who suffer “substantial physical abuse or neglect,” the same bill also amended the AS 47.17.070(1) definition of “child abuse or neglect” to mean “the physical injury or neglect, sexual abuse, sexual exploitation, or maltreatment of a child_” Gh. 104, § 8, SLA 1982 (emphasis on language added by amendment). When the legislature amended this definition, “neglect” was defined to mean “the failure by a person responsible for the child’s welfare to provide necessary food, care, clothing, shelter, or medical attention for the child_” AS 47.17.290(10) (formerly AS 47.17.070(5)). The legislature again amended the definition of “child abuse or neglect” in 1990, by adding the words “mental injury,” so that the definition read as follows: “the physical injury or neglect, mental injury, sexual abuse, sexual exploitation, or maltreatment of a child.” Ch. 29, § 5, SLA 1990. It also defined “mental injury” to mean injury “to the emotional well-being, or intellectual or psychological capacity of a child, as evidenced by an observable and substantial impairment in the child’s ability to function....” Id.

The legislature, when it amended these chapter 17 definitions, must have thought that it was addressing the same sorts of harm in AS 47.10.010(a)(2)(F). Having required reports of harm for neglect resulting in mental injury, the legislature must have intended that the same sort of harm could trigger CINA jurisdiction. It required reporting in order to permit delivery of protective services to prevent further harm, to enhance the general well-being of children of Alaska, and to preserve family life whenever possible. AS 47.17.010; ch.- 104, § 3, SLA 1982. There is no reason to think the legislature intended to reach emotional harm resulting from neglect in chapter 17, but also intended that neglect resulting in emotional harm could not be the basis for CINA jurisdiction in chapter 10.4

Thus, the obverse of the court’s argument that CINA jurisdiction would be unduly enlarged if “physical” did not modify “neglect” is the argument that the court’s reading would unduly limit the protection the statute provides. To read it as I propose at least covers emotional neglect, even if it does not cover emotional abuse. Because other provisions imply that the legislature intended to reach emotional neglect, I prefer to be guided by those than to rely on a narrow interpretation that deprives children of this protection.

The court next reasons that subsection (a)(2)(F) seems to be aimed at the problem of physical harms resulting from abuse or neglect. Maj. op. at 863-865. I disagree, because I do not read subsection (a)(2)(F) to be aimed only at physical harms, given other contemporaneous and subsequent amendments to AS 47.17.5

*874The court also finds that accepting the superior court’s interpretation of subsection (a)(2)(F) would convert it into a “general provision” that would enable the State to assume custody over any child who has needs the child’s parents could not meet, and would render subsections (a)(2)(A) through (a)(2)(E) superfluous. Maj. op. at 865. I disagree. I do not read the six subsections of subsection (a)(2) to be so discrete. They naturally overlap with respect to both parental behaviors and the harms the children suffer. A given situation may well implicate two or more of these subsections. Moreover, there is no danger that subsection (a)(2)(F) will render other subsections superfluous. It certainly does not render subsection (a)(2)(B) superfluous, because even though that subsection specifically deals with mental harm, it does so only in context of a parent’s knowing failure to provide professional treatment for that harm. The court may be concerned that the reading I would give the statute would permit DFYS to interfere inappropriately with child-parent relationships. Although that is a legitimate concern, reading “substantial” as modifying “neglect” adequately protects against undue DFYS interference. That is, after all, the limitation the legislature found adequate when it amended subsection (a)(2) to include “substantial physical abuse.”6

The court also rejects the State’s arguments that definitions of “neglect” in AS 47.17.290, and “care” in AS 47.10.990(1) apply, and concludes that, even if those definitions did apply, the “neglect” must be “physical,” and not merely emotional. Maj. op. at 865-866.7 As the court correctly notes, the legislature did not specify that those definitions control terms used in AS 47.10.010(a)(2)(F). On the other hand, the legislature did not see fit to define “neglect” differently in chapter 10. There is no reason to think it intended that the term should be applied and defined inconsistently in chapters 10 and 17. It is permissible to rely on statutory definitions provided in a closely related context. We should feel comfortable borrowing these definitions where there is no justification for applying some other, less common, definition. Moreover, the statutory definitions are consistent with the meanings of these words in everyday usage. See AS 01.10.040(a).

Finally, the court rigorously examines all references in chapter 10 to “neglect,” Maj. *875op. at 866 n.13, to demonstrate that the legislature did not intend to import chapter 17⅛ definition of “neglect” into chapter 10. This examination does not identify any other definitional source, and does not establish that the reading I propose was not intended by the legislature.

It is unfortunate that the imprecision found in AS 47.10.010(a)(2) has been the source of so much litigation. Issues of CINA jurisdiction and termination are difficult enough without an overlay of statutory imprecision. For example, after years of conflicting interpretations of AS 47.10.010(a)(2)(A),8 the court attempted to resolve that conflict when it issued In re S.A., 912 P.2d 1235 (Alaska 1996). Even now issues relating to that subsection linger on. Nothing we said in S.A, for example, would have led the trial court in this case to anticipate O.R. v. State, 932 P.2d 1303 (Alaska 1997), or this court’s discussion of subsection (a)(2)(A) in today’s opinion. Interpretation of AS 47.10.010(a)(2) has presented the courts with difficult questions. Our answers to those questions may or may not have coincided with the original legislative intentions, and there is a certain degree of supposition when we adopt or propose a particular interpretation. One might expect or wish that the State, having received such mixed results in the past, would seek a comprehensive revision of the CINA and Child Protective Services statutes to enhance their consistency, and to make sure that CINA jurisdiction encompasses the harms the legislature wishes to address, and excludes those it does not. Statutes from all the states are conveniently collected in 3 Thomas A. Jacobs, Children and the Law: Rights and Obligations (1995) (Appendices). As it is now written and interpreted, Alaska’s statue is potentially overinclusive or under-inclusive, or both, depending on one’s point of view. It would be better for the legislature to revisit the statute and, assuming it is not content with the interpretations adopted by this court in recent years, clarify it to reflect the legislature’s actual intentions.

B. AS 47.10.010(a)(2)(A)

On a pragmatic level, and given the court’s discussion of subsection (a)(2)(A) in In re S.A., I agree with the court’s willingness to take into account a parent’s record in caring for the child in considering whether the parent is “willing” to care for the child. I unsuccessfully proposed a more direct, and appropriate, way to interpret subsection (a)(2)(A) in In re S.A.

. For the sake of consistency with the opinions of this court and the superior court in this case, and with previous opinions of this court discussing the CINA statute, I refer to the subsections of AS 47.10.010 as they were numbered before amendment in 1996. For example, AS 47.10.010(a)(2)(A) is now AS 47.10.010(a)(1), and AS 47.10.010(a)(2)(F) is now AS 47.10.010(a)(6).

. The court's summary of subsections (a)(2)(B) through (a)(2)(F) was dicta. It was not necessary to decide the question presented here, nor did the court do so.

. See 1 Thomas A. Jacobs, Children and the Law: Rights & Obligations § 2:18 (1995); Vincent J. Fontana and Douglas J. Besharov, The Maltreated Child (4th ed.1979).

. Of course, the legislature might have thought that emotional neglect was in some way covered by AS 47.10.010(a)(2)(A), but if so, one would think the legislature also would have thought that physical neglect would have been covered by that same subsection. If that is how the legislature reasoned, there would have been no reason for it to amend subsection (a)(2) by adding subsection (F) in 1982.

. As a syntactical model, the court relies on repeated references in AS 47.10 to the phrase “child abuse or neglect,” and reasons that the legislature obviously intended "child" to modify both "abuse” and "neglect.” Maj. op. at 862. I find the model unpersuasive. Given the title of chapter 10, "Delinquent Minors and Children in Need of Aid,” that reading is the only reasonable reading of that phrase consistent with context. *874In comparison, context does not compel a conclusion that the court's reading of the phrase “substantial physical abuse or neglect” is the only logical, permissible reading.

. The court expresses concern that mere "substantial neglect” could justify termination of parental rights under AS 47.10.010(a)(2)(F). Maj. op. at 866. Actually, termination of parental rights requires proof of substantial neglect by the clear and convincing evidence standard. AS 47.10.080(b)(3). Further, an objection that “substantial” is not sufficiently harmful to justify CINA jurisdiction (or termination of. parental rights) is equally applicable to "substantial physical neglect,” (the reading the court favors). There is no dispute that the legislature approved the “substantial” standard of harm for both jurisdiction and termination.

. The court also rejects the State's reliance on D.H. v. State, 929 P.2d 650 (Alaska 1996), where we commented: "As the statute and this court's treatment of it make abundantly clear, however, the superior court is not meant to confine its inquiry to the physical well-being of the child.” Id. at 653 n. 10. Maj. op. at 866 n.12. Taken at face value, the D.H. comment supports a conclusion that the court can also look into the child’s emotional well-being. Footnote 10 was attached to the court’s discussion of AS 47.10.010(a)(2)(F), the same subsection at issue here, and was made in context of a superior court finding that D.H. had neglected T.H. since her birth. "There [have] been no real bonding efforts on [D.HJ’s part and no significant nurturing has taken place....” 929 P.2d at 653. We held that the superior court did not clearly err in determining that D.H. “substantially neglected" her daughter. Id. at 654. In holding for the State, we quoted its argument that the mother failed to make any sustained effort "to establish a parent-child relationship with [T.H.] by remaining available for her daily care.” Id. at 653. I read the D.H. footnote to shed light on subsection (a)(2)(F), given the factual context and the specific issue D.H. was arguing. Moreover, the subsection (a)(2)(F) issue in D.H. is best characterized as involving a claim that the mother had emotionally neglected her child. Consequently, I do not regard the quoted language as inapplicable here. In any event, the actual holding of D.H. on the subsection (a)(2)(F) issue is illustrative of the result I would reach in this case.

I am also unpersuaded by the court’s willingness to give more credence to brief dicta originating in S.A. (which did not raise or turn on a subsection (a)(2)(F) issue) than to the holding of D.H. (which did). Compare Maj. op. at 864-865 with Maj. op. at 866 n.12.

. See In re S.A., 912 P.2d 1235, 1241 (Alaska 1996), discussing A.M. v. State, 891 P.2d 815 (Alaska 1995); In re T.W.R., 887 P.2d 941 (Alaska 1994); F.T. v. State, 862 P.2d 857 (Alaska 1993); In re J.L.F., 828 P.2d 166 (Alaska 1992), and overruling AM., T.W.R., and J.L.F. to the limited extent they stated that the ability to care may be considered under subsection (a)(2)(A).