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Michael W. v. Brown

Supreme Court of Alaska

November 2, 2018

MICHAEL W., Appellant,

          Appeal from the Superior Court No. 1KE-17-00018 PR of the State of Alaska, First Judicial District, Ketchikan, Trevor Stephens, Judge.

          Larissa Hail, Law Offices of Dan Allan & Associates, Anchorage, for Appellant.

          Gabriel E. Sassoon, Baxter Bruce & Sullivan P.C., Juneau, for Appellees.

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


          MAASSEN, Justice.


         The superior court appointed a child's grandparents as his guardians after finding that the father's parental rights of custody had been suspended by circumstances because it would be detrimental to the child's welfare to remove the child from the grandparents' care. The father appeals.

         We conclude that the phrase "suspended by circumstances" in the guardianship statute, AS 13.26.132, is properly focused on the parent's ability to accept the rights and responsibilities of parenthood rather than on the child's welfare. Because the superior court found that the father was not an unfit parent and had not abandoned the child, it was error to find that all his parental rights of custody had been suspended by circumstances. We therefore vacate the guardianship order and remand to the superior court with instructions to dismiss the grandparents' guardianship petition.


         A. Facts

         The essential facts of this case are not disputed. Michael W. and Mindy B. married in February 1999 and are the parents of Kevin, born in 2005. Kevin's grandparents, Tina and Robert Brown[1] - Mindy's mother and stepfather - live in Alaska.

         Michael and Mindy separated and in July 2010 obtained a dissolution of marriage in Oregon. The dissolution order awarded Mindy primary physical custody of Kevin and gave Michael visitation rights during some of Kevin's school breaks. Mindy and Kevin moved to Alaska to be near the Browns, and Michael moved to New York to be near his father.

         Both Michael and Mindy acquired new families. Michael married again and lives near Rochester, New York, with his wife, daughter, and stepdaughter. Mindy also married again and has a daughter, Faith.

         After the dissolution Michael tried to call Kevin regularly, though he testified there were many times Mindy failed to answer her cell phone, and he sometimes had to ask for her new husband's help in reaching Kevin. At the time of the guardianship hearing - March 2017 - Michael's last in-person visit with Kevin was in October 2013, when he and his family attended Mindy's wedding in Kentucky. Michael had not seen Kevin for at least two years before that. But Michael testified that he kept track of Kevin's progress in school, checked his grades and medical records, and spoke with his doctor. He testified that he tried to arrange for Kevin to visit him in New York several times "but Mindy had an excuse why [Kevin] could not go." He never sought judicial assistance in enforcing his visitation rights, however, and Kevin had never been to New York.

         At the time of the guardianship hearing Kevin was 12 years old, a 5th grade honor roll student, and one of the the school's morning greeters. He had friends and was well liked. He had been diagnosed with Asperger's Syndrome in 2011 but apparently did not manifest "the significant social and behavioral problems often associated with the condition."

         Mindy had serious problems with alcohol, and in July 2016 she moved to Arizona to enter a rehabilitation program. Her husband accompanied her, but they left both Kevin and Faith in the Browns' care in Alaska. The Browns already had a close relationship with Kevin, as he had been spending at least two or three days a week at their house.

         The Browns contacted Michael within the first month of Mindy's departure to inform him of the situation; he had not been aware of her alcohol problems. Michael told the Browns that he loved and missed Kevin but thought they would be great guardians. He did not ask them to send Kevin to New York, nor did he seek judicial assistance at that time to obtain custody.

         Michael did continue his regular telephone contact with Kevin. The Browns facilitated his weekly calls, "sent him [Kevin's] school pictures, and . . . encouraged [Kevin] to write to Michael and send him thank you notes." In the meantime the Browns provided Kevin with a safe, stable, and secure home in Alaska. They were aware of Kevin's special needs and were capable of meeting them. They had already been appointed guardians for Mindy's daughter, Faith, with whom Kevin also had a close sibling relationship.

         Although at the time of the hearing there had still been no in-person visitation between Michael and Kevin since 2013, the Browns testified that they planned to facilitate visitation "in order to re-establish and strengthen [the] father/son relationship." They did not know Michael opposed their wish to become Kevin's guardians until he filed an opposition to their petition the day before the hearing.

         Michael testified that he was employed full-time as a journeyman union carpenter, and his wife was a receptionist at a medical office. He had no criminal record, had no substance abuse issues, and was current on child support. There was no evidence of domestic violence in his home. He testified that he had located a school in his community that Kevin could attend, contacted a nearby autism center to help address Kevin's special needs, and found a pediatrician willing to accept Kevin as a patient. He described activities he hoped to share with his son, including travel and visits to theme parks, Niagara Falls, and museums.

         B. Proceedings

         The Browns' petition, filed in January 2017, sought their appointment as Kevin's guardians pursuant to AS 13.26.132. Michael opposed the petition and moved to dismiss the case. Michael and both of the Browns testified at the March hearing.

         A few days later the superior court issued a detailed order denying Michael's motion to dismiss and granting the Browns' petition for guardianship. The court first considered whether the same standards that apply in a custody dispute between a parent and a non-parent should apply to a guardianship proceeding - specifically whether the Browns should be required "to prove by clear and convincing evidence that all of Michael's and Mindy's rights of custody with respect to [Kevin] have been terminated or suspended by the circumstances because they are unfit parents, it would be detrimental to [Kevin's] welfare to not be in the [Browns'] custody and to be in the custody of either parent, or they have abandoned [Kevin]." The court concluded that the same standards should apply. It found that all three grounds for finding that parental rights were "suspended by circumstances" applied with respect to Mindy: she was an unfit parent because of her substance abuse issues; it would be detrimental to Kevin's welfare for him to leave the Browns' care and live with her because the Browns were his psychological parents[2] and he "would be emotionally and psychologically devastated and at substantial risk of not having his physical needs properly met"; and she had abandoned Kevin when she moved to Arizona with no plans for taking him back into her care.

         With respect to Michael, the court found that only one of the three grounds was satisfied. The court found that the Browns had not proven he was an unfit parent. It also found that although the Browns had shown that Michael abandoned Kevin "for substantial periods of time since 2010," they did not establish that he had "totally abandoned" the child. However, the court found that the Browns had proven "that it would be detrimental to [Kevin's] welfare if he were to leave [the Browns'] care and live with Michael" because they were Kevin's psychological parents and "it would [be] devastating for [Kevin] emotionally and psychologically to go to New York to live with Michael," whom he had seen only rarely, "and be separated from the [Browns]."

         The court concluded that both Mindy's and Michael's parental rights to custody had been "at least suspended by circumstance," allowing the guardianship petition to go forward. The court then considered whether the Browns had met the requirement of AS 13.26.143 "to also prove that it is in [Kevin's] best interests that [the Browns] be appointed his guardians." Noting that neither the guardianship statute nor related case law defined "best interests" in the guardianship context, the court applied the best interests factors listed in AS 25.24.150(c)-which governs child custody cases -reasoning that "[a] guardianship is akin to a child custody case in important respects." Finding that all the relevant factors weighed in favor of the Browns, the court concluded that it was in Kevin's best interests that the Browns be appointed as his guardians.

         Michael timely appealed from this order. Mindy did not appeal and has not participated in this appeal.


         We review statutory interpretations de novo.[3] "We interpret statutes 'according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.' "[4]

         IV.DISCUS ...

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