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Dean S. v. State, Department of Health & Social Services

Supreme Court of Alaska

May 11, 2018

DEAN S., Appellant,

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court Nos. 3PA-15-00163/ 00164/00165 CN Palmer, Gregory Heath, Judge.

          Kevin Higgins, Law Office of Kevin Higgins, Anchorage, for Appellant.

          Laura Fox, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Rachel Levitt, Assistant Public Advocate, and Chad Holt, Public Advocate, Anchorage, Guardian Ad Litem.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.


          WINFREE, Justice


         The biological father of three children validly consented to their adoption in the face of parental rights termination proceedings. Five months later he sought to withdraw his consent. The superior court determined that withdrawal of the father's consent to adoption would not be in the children's best interests and denied the father permission to withdraw his consent. The father appeals, arguing that the superior court clearly erred in finding that withdrawal of his consent was not in his children's best interests. Because the superior court did not clearly err in this factual determination, we affirm its decision.


         Dean S. and Emily S.[1] are the biological parents of three children, born in 2003, 2004, and 2007.[2] The Office of Children's Services (OCS) became involved with Dean and Emily's family in 2005 when the oldest child was a year old and the middle child about four months old; the youngest was not yet born. OCS received unsubstantiated reports that the children were not being supervised and that the parents were abusing substances. OCS continued to investigate abuse and neglect reports, most of which were unsubstantiated, over the next seven years. OCS ultimately took emergency custody of the children in November 2012.[3]

         Dean worked his case plan, and OCS later returned the children to his care. Emily did not cooperate with OCS and had only intermittent contact with the children. In August 2015 OCS received new reports that Dean was having suicidal thoughts, abusing substances, and neglecting the children. The oldest child, then age 11, reportedly was the primary caregiver for the two younger children. The children were voluntarily moved to Dean's brother's home, but OCS again assumed emergency custody after Dean threatened to remove them.

         OCS petitioned for emergency adjudication of the children as in need of aid.[4] The superior court granted OCS temporary custody.[5] OCS established an initial permanency goal of reunification. The children were first placed with Dean's brother, then moved to Dean's sister in May 2016.

         OCS petitioned to terminate Dean's and Emily's parental rights in August 2016.[6] The superior court found that neither parent had made substantial progress toward remedying the conditions placing the children in need of aid and that the appropriate permanency plan for the children was adoption. Dean executed a valid consent to adoption in November 2016;[7] in December, Emily did the same.

         Dean moved to withdraw his consent in May 2017.[8] The superior court held an evidentiary hearing in August to determine if withdrawal would be in the children's best interests. Dean testified on his own behalf and a caseworker testified for OCS. Emily did not contest the adoption.

         Dean testified that he wanted "full custody" of his children. He wanted to work together with his sister to "decide the route now that we have a clear vision of what needs to be done to raise the kids in a . . . healthy environment, " and he thought his custody was preferable to adoption in case his sister died. Dean said he had attended parenting classes, grown closer to his spiritual advisers, addressed his hoarding problems, found a life-skills coach, and identified private agencies that could provide therapy services. Dean conceded living in protective housing with four people to a room, but he believed he could quickly work a "fair" case plan to achieve permanency for his children. Dean also said that he and his sister had been in regular contact but that OCS had tried to "cut off his contact with her.

         The OCS caseworker testified that the children had bonded with Dean's sister and were "comfortable, relaxed" and "thriving." The caseworker said they were doing well in school, the middle child no longer had debilitating tantrums, and the youngest child had become a "mainstream kid" who no longer needed a "shadow" assistant or "had great difficulty at school." The caseworker also said that Dean's sister knew where the children needed to be, got them to school, spent time with them "to build self-esteem and individuality, " was a "guiding parent"; the children were affectionate toward her, and they had built a strong family unit. The caseworker indicated that, if Dean retained parental rights and diligently worked his case plan, it likely would take him a year to achieve permanency.

         The superior court denied Dean's motion to withdraw his adoption consent in September 2017. The court cited S. O. v. W.S.'s best interests standard[9] and found that Dean's sister's adoption of the children was in their best interests. The court credited the caseworker's testimony that the children were thriving, comfortable, relaxed, doing well in school, enjoying where they were living, and in a stable, happy home. The court found Dean had not shown that withdrawal of ...

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