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In re Adoption of E.H.

Supreme Court of Alaska

November 16, 2018

In the Matter of the Adoption of E.H. and J.H.

          Appeal from the Superior Court Nos. 3AN-15-01485/ 01486 PR of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, for Appellants Foster Parents.

          Allison Mendel, Bonnie Calhoun, and John Sherman, Mendel Colbert & Associates, Inc., Anchorage, for Appellees Grandparents.

          Anna R. Jay, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Department of Health & Social Services, Office of Children's Services.

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




         Two young siblings were removed from their biological parents' home and placed with a foster family. The maternal biological grandparents remained involved in the children's lives and sought to adopt them, as did the foster parents. The grandparents and foster parents entered into a formal settlement agreement, which was incorporated into the ultimate adoption decree. Under the agreement the grandparents waived their right to pursue adoption in exchange for several specific guarantees and assurances, including that the foster parents would comply with a visitation agreement and facilitate a relationship between the children and the grandparents. When the grandparents were later denied post-adoption visitation, they moved to enforce the agreement and then to vacate the adoption.

         The superior court vacated the adoption after finding that the foster parents made material misrepresentations throughout the pre-adoption process, including specific misrepresentations about their intent to comply with the visitation and relationship agreement. The superior court placed the children back in state custody to determine a suitable adoptive placement. The foster parents appeal, arguing that the grandparents' sole remedy is enforcement of the visitation agreement. But an adoption may be vacated due to material misrepresentations, and because the adoptive parents do not challenge the court's factual finding that they never intended to comply with the settlement agreement's visitation and relationship provisions, we affirm the superior court's decision vacating the adoption.


         The Office of Children's Services (OCS) took custody of Simon and Ellie[1]in 2012 after discovering that they were living in unsafe conditions.[2] Simon was almost five and Ellie was only three months old. OCS placed the children with foster parents, [3]with whom the children then resided continuously. The children regularly visited their biological grandparents, including overnight visits, and generally maintained a positive relationship with them.

         During the children's foster placement, however, the foster parents and the grandparents did not get along. The foster parents accused the grandparents of violating visitation rules, but OCS dismissed the accusation as unfounded. The grandparents alleged that the foster parents were neglectful caregivers and that they relied on their teenagers to provide for Simon and Ellie. Shortly before OCS petitioned to terminate the biological parents' parental rights, [4] both the foster parents and the grandparents requested to adopt the children.

         In 2014, when Simon was seven and Ellie was two-and-a-half years old, their biological parents' parental rights were terminated. Early in the termination trial, the grandparents withdrew their request for placement in exchange for an agreement allowing them to remain in the children's lives. The court approved the foster parents as an adoptive placement for the two children.

         Following the termination trial, OCS contracted for an adoption home study to evaluate the foster parents. The home-study writer interviewed the foster parents and other family members residing in their home. Neither foster parent disclosed at that time that their own biological children had experienced or alleged sexual abuse. They represented that they were bonded with Simon and Ellie. Both foster parents expressed misgivings whether they could create a safe and satisfactory visitation plan with the grandparents, explaining that "[i]n prior visits, the grandparents had allowed [Simon] and [Ellie] to be unsupervised with the birth parents." The home-study writer also interviewed an OCS caseworker, who stated that she supported adoption by the foster parents but had "some concern that the family may not be supportive of maintaining contact with the maternal grandparents."

         In early 2015, before the adoption was finalized, the foster mother reported to OCS that the children's grandfather had inappropriately touched Ellie. Investigators interviewed both Simon and Ellie, neither of whom disclosed any abuse, and the investigators concluded the abuse reports were unsubstantiated. Despite the unsubstantiated allegations, the foster parents agreed to a settlement with the grandparents. The foster parents testified at the settlement conference that they were entering the settlement agreement of their own free will and with the assistance of competent legal counsel. The foster parents later claimed they had been under the impression they were not to notify the grandparents of the unsubstantiated allegations or reference them during negotiations at the settlement conference.

         The settlement agreement was ultimately incorporated into the June 2015 adoption decree. The agreement is lengthy and specific in its terms. The grandparents "agreed not to continue to pursue custody and placement of [the children] ... in exchange for the [foster parents'] guarantees and assurances." Other provisions include that the grandparents "will continue to be considered the children's legal grandparents" and that "[v]isitation between the children [and their grandparents] is an important part of the children's mental health and sense of connection to their biological family and heritage." The agreement additionally provides that "[t]he parties agree to respect each other's roles and importance in the children's lives and to facilitate those relationships and titles."

         The agreement states that the grandparents shall have retained and enforceable visitation rights surviving the child protection case and any subsequent adoption or guardianship case. But the agreement provides for an initial two-month suspension of grandparent visitation to "solidify the formal and legal familial bond between the children and the [foster parents]," followed by three months of supervised, therapeutic visits conducted with one of the two therapists named in the order. Following that period of bonding and relationship building, the agreement sets out a highly detailed visitation schedule, with unsupervised visits between the children and their grandparents increasing in frequency and duration over time.

         In October 2015 the grandparents moved to reopen the adoption case and enforce the visitation agreement. They sought court intervention after being "denied at least six of their visitations with the children, with no hope of any future visitations without immediate court intervention." The foster parents opposed, and they submitted affidavits detailing their history with the children and negative course of dealing with the grandparents.

         In December 2015 the superior court granted the grandparents' motion to reopen the adoption. In March 2016 the grandparents moved to vacate the adoption on the grounds of fraud and misrepresentation. The court held a five-day evidentiary hearing in November.

         After the hearing the court found that the foster parents' allegations of sexual abuse by the grandparents were not only unsubstantiated, they also were highly suspect and possibly fabricated. The court found that the foster mother never wanted to enter into the settlement agreement, actively isolated the children from their grandparents, and manipulated therapists to promote her agenda.

         The court also found that the foster parents failed to disclose material facts that "were significant to the [grandparents'] decision to waive their right to adopt the children" and "would have meaningfully affected the opinions of the home study writer, OCS, the [guardian ad litem] and the court." These material facts included: (1) the foster parents' family's "significant history of actual or allegations of sexual abuse"; (2) Simon's "pre-adoptive behavior, that he was not bonding with [his foster mother, ] and that he was allegedly hoarding food"; and (3) the foster parents' actual pre-adoptive mind set, which was wholly at odds with their "affirmative promise to support and facilitate the relationship between [the children and their grandparents]." The court emphasized that the foster parents' attempts to "undermine[] and improperly influence[] the reunification process between children and ...

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