Appeal
from the Superior Court No. 3PA-16-00092 CN of the State of
Alaska, Third Judicial District, Palmer, Kari Kristiansen,
Judge.
Sharon
Barr, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant.
Mary
Ann Lundquist, Senior Assistant Attorney General, Fairbanks,
and Kevin G. Clarkson, Attorney General, Juneau, for
Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices.
OPINION
CARNEY, JUSTICE.
I.
INTRODUCTION
A
mother appeals the termination of her parental rights after
she signed and then attempted to withdraw a voluntary
relinquishment of parental rights. At the time she signed the
relinquishment, her child was living with his paternal
grandmother, who hoped to adopt him. When it later became
clear that the grandmother would not be able to adopt the
child, the mother signed a notice of her withdrawal of
relinquishment although the ten-day window for withdrawal had
passed. Three days later she filed the notice in superior
court. That same day, apparently without being aware of the
withdrawal notice, the court issued an order terminating the
mother's parental rights. The mother appeals. She argues
that the court retained discretion to allow her withdrawal
even though the ten-day period had passed and that
termination of her parental rights was not in the child's
best interests. Because, assuming the superior court had
discretion to allow the untimely withdrawal, it did not abuse
its discretion by declining to do so, we affirm the
termination of her parental rights.
II.
FACTS AND PROCEEDINGS
A.
Background
Sabrina
V. is the mother of Kaleb D., who was born in
2005.[1] By 2016 Kaleb was living in Wasilla with
his father, who is now deceased. Sabrina had apparently been
living outside of Alaska for some years. It does not appear
that the parents had a court order regarding Kaleb's
custody.
Sabrina
also has an older daughter, Lizzie, from a previous
relationship. Lizzie was committed to the custody of the
Office of Children's Services (OCS) in September 2014 in
an earlier child in need of aid (CINA) case. In February
2016, after a successful six-month home visit with Sabrina in
Montana, OCS released Lizzie to Sabrina.
B.
Pre-Relinquishment CINA Proceedings
Kaleb's
father died in April 2016; the cause of death was unknown but
may have been related to complications from a recent surgery.
OCS filed an emergency petition for temporary custody and to
adjudicate Kaleb as a child in need of aid.[2] The petition
stated that Kaleb's father had been Kaleb's
"sole caregiver." OCS claimed to have "no
current contact information" for Sabrina despite having
released Lizzie to her roughly two months earlier; Sabrina
later testified that her residence had not changed between
her reunification with Lizzie and the initiation of CINA
proceedings for Kaleb. At the emergency probable cause
hearing an OCS caseworker testified that Kaleb had told OCS
he had not seen Sabrina in roughly two years and that she
"wasn't a good mom." The court granted OCS
temporary custody.
OCS
apparently found contact information for Sabrina by June
2016.[3] In an August 2016 predisposition
report[4] OCS stated that, when contacted, Sabrina
had said she was unable to care for Kaleb because she was
about to move from Montana to Washington. In late August the
court adjudicated Kaleb in need of aid and granted OCS
custody pending disposition. By September 2016 OCS had begun
to investigate two of Kaleb's paternal relatives to
determine if they could adopt him. Because the relatives
lived in Oklahoma, OCS was working with its counterpart there
pursuant to the Interstate Compact on the Placement of
Children (ICPC).[5]
At the
disposition hearing[6] the following month the court found that
Sabrina had not yet established a relationship with Kaleb and
had "made very little effort to stay in contact with him
when she left Alaska." The court also found that because
of Sabrina's history of drug use and involvement with
OCS, it would be contrary to Kaleb's best interests to
place him with her. The court committed Kaleb to OCS's
custody for up to two years.[7]
Around
June 2017 OCS changed the primary goal for Kaleb from
reunification with Sabrina to adoption. Kaleb was then living
in Oklahoma with a paternal uncle, who OCS hoped would be
able to adopt him. At a permanency hearing in August,
Sabrina's attorney reported that the parties had
negotiated a consent to adoption.[8] Sabrina later signed the
consent to adoption by Kaleb's paternal uncle, and the
court approved it in January 2018.
In
February 2018 OCS petitioned to terminate Sabrina's
parental rights. The petition alleged that Sabrina
"ha[d] not engaged in any of the identified case plan
activities [or] maintained consistent contact" with OCS
despite "consistently stat[ing]... her desire to
reunify" with Kaleb. In March the guardian ad litem
reported that Kaleb's uncle would not be able to adopt
Kaleb and that he had been moved to his paternal
grandmother's home. His grandmother also lived in
Oklahoma and OCS was considering her as a possible adoptive
parent.
C.
Proceedings Relating To The Relinquishment And
Withdrawal
Sabrina
signed a voluntary relinquishment of her parental rights on
May 3 0, 2018, and filed it with the court on June
14.[9]
The relinquishment acknowledged that the grandmother's
adoption of Kaleb depended upon a positive home study and
Kaleb's living with her for six months before the
adoption; Sabrina retained the privilege to be notified if
the adoption would not proceed. The relinquishment stated
that Sabrina could withdraw it "for any reason"
within ten days after signing it, and that after ten days the
court could order her parental rights terminated at any time
if it found termination to be in Kaleb's best interests.
The relinquishment also provided that, after a termination
order was signed but before the entry of an adoption or legal
guardianship decree, Sabrina could seek a review hearing to
reinstate her parental rights. The relinquishment
incorporated the statutory standards governing such a review
hearing: to have the termination order vacated, Sabrina would
have to show, by clear and convincing evidence, that
reinstatement would be in Kaleb's best interests and that
she had been rehabilitated from the issues that led to
termination of her parental rights.[10]
In late
June 2018 OCS filed a permanency report stating that
Kaleb's grandmother's home was now "seen as a
short-term placement given [the grandmother's] medical
needs." The report explained that Oklahoma's ICPC
home study had determined that her health made her unsuitable
to adopt Kaleb.
Sabrina
received a copy of the permanency report shortly after it was
filed; this seems to have been her first notice that the
grandmother would not be able to adopt Kaleb. On June 29,
2018, Sabrina signed a notice that she was withdrawing her
relinquishment of parental rights. The notice stated that she
had "signed the relinquishment with the understanding
that the permanent plan for [Kaleb was] adoption by [his]
paternal grandmother." It also stated that Sabrina
"[did] not believe it [was] in [Kaleb]'s best
interests to be a legal orphan" and would have withdrawn
the relinquishment earlier if she had known of the
grandmother's inability to provide a permanent adoptive
placement.
Although
Sabrina signed the Notice of Withdrawal and served it on the
parties on June 29, it was not logged as filed with the court
until July 2. She suggests that this was likely due to the
fact that June 29, 2018, fell on a Friday, when Alaska courts
and court offices closed at noon.[11] Also on July 2, and
apparently without being aware of the Notice of Withdrawal,
the court ordered termination of Sabrina's parental
rights to Kaleb. Neither Sabrina nor her counsel was present
at a hearing addressing permanency the following day, as the
court had found that based on the relinquishment and
termination, Sabrina was not entitled to notice of the
hearing.
Sabrina
moved for reconsideration on July 11. She argued that
"[t]he CINA statutes do not directly speak to whether a
parent can withdraw [a] relinquishment" more than ten
days after signing it, but that nothing in the statutes or
rules prohibited it. She urged the court to treat her
withdrawal as a motion to amend a pleading, for which leave
should be freely given under Alaska Civil Rule
15(a).[12] The court invited OCS and the guardian
ad litem to respond; both argued that reconsideration should
be denied because Sabrina's withdrawal was untimely.
On July
25, 2018, the superior court denied reconsideration. The
court rejected Sabrina's argument that she should be
permitted to withdraw the relinquishment under Civil Rule
15(a), noting that both AS 47.10.089(c) and the terms of the
relinquishment specifically provided for a ten-day deadline
to withdraw the relinquishment.[13] The court also found that
the grandmother's disqualification from adopting Kaleb
was not a serious change of circumstances that justified
allowing late withdrawal of the relinquishment because
Sabrina had only retained the right to be notified, and not
the right to withdraw her relinquishment, if the adoption was
not possible.
Sabrina
appeals.
III.
STANDARD OF REVIEW
"We
review the denial of a motion for reconsideration for abuse
of discretion."[14] An abuse of discretion exists if the
superior court's decision "is arbitrary, capricious,
manifestly unreasonable, or . . . stem[s] from an improper
motive."[15]
"When
interpreting CINA statutes and rules, we apply our
independent judgment, 'adopting the rule of law that is
most persuasive in light of ...