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.
OPINION
WINFREE, JUSTICE.
I.
INTRODUCTION
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.
II.
FACTS AND PROCEEDINGS
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
...