Jeff AC, Jr. v. State

BRYNER, Chief Justice,

concurring.

I join in the court’s judgment and agree with the result reached on all of the issues; but I disagree with its rationale in deciding the issue of procedural due process. Specifically, I disagree with the court’s suggestion that Jeffs right to due process could be met without adjudicating the state’s allegation that his conduct since being identified as Jasmine’s father amounted to abandonment and neglect of Jasmine; I would decline to say, as the court does, “that Jeff did not have an absolute right to participate in an adjudication hearing” on these CINA allegations.1 I find no occasion to decide this difficult issue here, because, in my view, the record shows that the termination trial gave Jeff a full and fair adjudication hearing on the issue of Jasmine’s current CINA status: in deciding to sever Jeffs parental ties, the superior court necessarily determined that his conduct since learning that he was Jasmine’s father amounted to abandonment and neglect of his daughter and rendered her a child in need of aid.

To terminate Jeffs parental rights under AS 47.10.088(a), the state was required to prove, among other things, that Jasmine had been subjected to conduct or conditions that caused her to be a child in need of aid under AS 47.10.011. Conceivably, the state might have attempted to meet this requirement by relying solely on Jasmine’s previous CINA adjudication, which resulted from Melanie’s substance abuse and neglect, and was entered without notice to Jeff. But the state did not take this course; instead, it advanced new CINA allegations as a basis for terminating Jeffs rights. The petition for termination alleged that Jasmine had been subjected to conduct or conditions making her a child in need of aid because Jeff had abandoned and neglected her.2 Because these allegations had not been included in the original CINA proceeding, they could not have been established by reliance on the original CINA adjudication; the state would have to prove that Jeff engaged in conduct that met the statutory definition of abandonment and neglect, and thereby rendered Jasmine a child in need of aid.

The state pinpointed its basis for advancing these claims well in advance of Jeffs termination trial. Two months before trial, the state filed a detailed pretrial memorandum elaborating the evidence that it intended to l'ely on to prove abandonment and neglect. The memorandum made it clear that the state would seek to show that Jasmine was a child in need of aid because of abandonment and neglect by Jeff that occurred after he learned that he was Jasmine’s father. In summarizing the state’s theory on this point, the pretrial memorandum stated:

There is clear and convincing evidence that this child was born a child in need of aid, in part, because of her father’s incarceration. After her father knew of his paternity, and after his release from jail, his conduct toward this child constitutes neglect as defined in AS 47.10.014 and abandonment as defined in AS 47.10.013(a)(2) and (3).

Jeff unquestionably understood that the state was advancing these new CINA theories and that the court would be required to adjudicate the allegations of abandonment and neglect as part of the termination trial. At the outset of the termination trial, Jeff moved to dismiss the petition for termination, arguing that termination would be premature because Jasmine’s current status as a child in need of aid had not yet been adjudicated. Contending that the court could not terminate his parental rights unless the state first proved its new CINA allegations, Jeff asked the court to bifurcate the proceedings so that the CINA allegations would be adjudicated first, to be followed by a trial on the issue of termination only if the state prevailed on the adjudication.

Jeff also insisted that, in the interim, Jasmine should be placed in his custody. Noting that he had not had an opportunity to *709participate in the earlier adjudication proceeding, Jeff reasoned that the state lacked jurisdiction to keep Jasmine in its custody pending the new adjudication hearing unless it could show probable cause that she continued to be a child in need of aid despite Jeffs availability to serve as her father. Since the state had no evidence to show probable cause, Jeff claimed, it lacked jurisdiction to retain custody of Jasmine.3

The state opposed Jeffs last-minute motion to dismiss. Addressing Jeffs jurisdictional argument first, the state pointed out that the initial CINA adjudication validly placed Jasmine in state custody despite Jeffs lack of participation, since the adjudication was entered before his paternity was established. And because the custody order remained in effect, the state argued, no showing of probable cause was required, and Jasmine could properly remain in state custody pending trial on its petition for termination.

As to Jeffs demand to bifurcate the adjudication and termination proceedings, the state insisted that separate hearings were not required by applicable law: AS 47.10.088(g) expressly authorizes the state to include new CINA allegations in a petition for termination;4 and CINA Rule 18(b) specifically gives the superior court discretion to consolidate the adjudication of these new allegations with the trial on the state’s petition for termination.5 Relying on these provisions as well as on existing case law,6 the state contended that the new CINA allegations pertaining to Jeff could be adjudicated in the context of his trial on the petition for termination.

By the time the state filed its opposition to Jeffs motion to dismiss, the termination trial was already in progress; the superior court denied Jeffs motion summarily and proceeded with the trial. In conducting the trial, the superior court implicitly recognized that the case presented mixed questions of adjudication and termination. In response to a motion by Jeff, the court indicated that it intended to enforce the provisions of CINA Rule 18(f) when ruling on the admissibility of hearsay evidence. Rule 18(f) adopts a two-tiered standard for hearsay in termination trials: the rule allows reliable hearsay to be admitted for most purposes, but it requires compliance with the formal hearsay exceptions set out in the Alaska Rules of Evidence when hearsay is offered to prove an issue relating to adjudication.7 By invoking Rule *71018(f), then, the court unmistakably demonstrated its belief that Jeffs trial presented consolidated issues involving both adjudication and termination.

After completing the termination trial, the superior court issued a seventeen-page decision terminating Jeffs parental rights. Much, if not most, of its decision was devoted to findings describing pretrial conduct by Jeff amounting to abandonment and neglect.

On appeal, Jeff argues that his right to procedural due process was violated by these proceedings because he could not be legally bound by the prior CINA adjudication order, which was entered without his participation, and because he was not given an opportunity to be heard on the issue of whether Jasmine should be adjudicated as a child in need of aid at the time of the trial.

This due process claim can be seen as raising several discrete issues. To the extent that it simply asserts the right to have a bifurcated proceeding — to have the new CINA allegations and the termination issues determined one after the other, so that the questions of neglect and abandonment could be adjudicated first, today’s opinion correctly recognizes that Jeffs argument lacks legal basis. The Alaska Statutes and our CINA Rules expressly allowed the superior court to conduct a consolidated hearing encompassing the new CINA allegations, as well as the petition’s other allegations relating specifically to termination.

Similarly, Jeffs argument lacks legal merit insofar as it suggests that he received inadequate notice of the new CINA allegations. The petition for termination and the state’s pretrial memorandum unequivocally spelled out the state’s intent to prove that Jasmine was a child in need of aid because of abandonment and neglect by Jeff occurring after he learned that he was her father. And as already mentioned, the record confirms that Jeff understood these new allegations and had a full opportunity to defend against them during the termination trial.

Finally, to the extent that Jeff seeks to claim that the superior court based its termination order on the prior CINA adjudication, instead of grounding it on new allegations of abandonment and neglect, Jeffs claim simply has no factual basis. When viewed as a whole, the petition for termination, the state’s pretrial memorandum, the evidence at trial, and the superior court’s written decision convincingly establish that the termination of Jeffs parental rights had little to do with the conduct by Melanie addressed in the prior CINA adjudication. Jeffs rights were terminated because he abandoned and neglected Jasmine after being identified as her biological father, and because the superior court found as a result of this conduct that placing Jasmine with Jeff would expose her to serious emotional harm.

The superior court’s findings effectively covered all elements needed to adjudicate Jasmine as a child in need of aid because of abandonment and neglect by Jeff. In fact, they necessarily included all the required elements of a CINA adjudication: given CINA provisions cited in the petition for termination and the evidence outlined in the state’s pretrial memorandum, the court could not have found a basis for terminating Jeffs parental rights under AS 47.10.088 without also specifically finding — by a standard of proof more stringent than the one required for adjudication — that Jeff neglected and abandoned Jasmine after he knew that he was her father, that he refused to alter this conduct, and thus prevented her from being placed in his custody without risking serious harm.

In short, the petition for termination and pretrial memorandum gave Jeff clear notice that all necessary elements for a CINA adjudication would be tried; the parties fully addressed these elements at trial; and the superior court’s termination decision squarely adjudicated them. It would exalt form *711over substance to suggest that the superior court’s failure to formally label its ruling a “CINA adjudication” disqualifies it from being recognized for what, in substance, it actually is: a consolidated decision incorporating a CINA adjudication and a termination order. Because this interpretation disposes of Jeffs due process claim without relying on the prior adjudication, I see no need to guess whether or when a termination might properly be based on a prior CINA adjudication handed down without notice to the parent whose rights the state seeks to sever. The court’s speculative discussion of this point strays beyond the facts of Jeffs ease, needlessly stretches the law, and, in my view, is sure to invite confusion and error in future CINA proceedings.

. Op. at 704.

. See AS 47.10.011(1).

. Jeff separately argued that if the court found sufficient evidence to prove Jasmine's present status as a child in need of aid, it should dismiss the petition in any event, because the state lacked sufficient evidence to establish that it had made reasonable efforts to reunify Jasmine with Jeff.

. AS 47.10.088(g) provides:

This section does not preclude the department from filing a petition to terminate the parental rights and responsibilities to a child for other reasons, or at an earlier time than those specified in (d) of this section, if the department determines that filing a petition is in the best interests of the child.

. CINA Rule 18(b) provides:

Purpose of Hearing. The termination hearing is a disposition hearing to the court on the question of whether the parental rights to an adjudicated child in need of aid should be terminated. Upon a showing of good cause and with adequate notice to the parties, an adjudication hearing and a termination hearing may be consolidated.

Alaska Rule of Civil Procedure 42(a) grants similar authority to the superior court in more general terms:

Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
A motion requesting consolidation shall be filed in the court where the case is sought to be consolidated. The motion shall contain the name of every case sought to be consolidated. A notice of filing together with a copy of the motion shall be filed in all courts and served on all parties who would be affected by consolidation.

. Specifically, the state claimed support by analogy in two prior cases: P.M. v. State, Dep't of Health & Soc. Servs., 42 P.3d 1127 (Alaska 2002), and T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089 (Alaska 2001).

. Under CINA Rule 9, the Alaska Rules of Evidence apply to CINA proceedings unless otherwise provided in the CINA Rules. CINA Rule 15, which governs CINA adjudication hearings, makes no other provision. But CINA Rule 18, which governs termination trials, sets forth an exception in subsection 18(f):

*710Evidence. Hearsay that is not admissible under a recognized exception to the hearsay rule is not admissible at a trial on a petition to terminate parental rights to prove that the child has been subjected to conduct or conditions described in AS 47.10.011. Otherwise, hearsay may be admissible at the trial if it is probative of a material fact, has circumstantial guarantees of trustworthiness, and the appearing parties are given a fair opportunity to meet it.