Opinion
Supreme Court No. S-11817.
March 1, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-97-297 CP.
Robert L. Breckberg, Assistant Public Advocate, Chad W. Holt, Assistant Public Advocate, Office of Public Advocacy, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, David W. Márquez, Attorney General, Juneau, for Appellee.
Anita L. Alves, Assistant Public Advocate, Joshua Fink, Public Advocate, Anchorage, Guardian ad Litem.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This case presents the question of whether the state met its heightened responsibilities when seeking to terminate the parental rights of a father of an Indian child. We conclude that the record supports the superior court's findings that the state made active efforts to reunify the family and that the termination of parental rights promotes the child's best interests. We further conclude that the state provided expert testimony sufficient to support the superior court's serious emotional damage finding.
II. FACTS AND PROCEEDINGS
When Katie, an Indian child under the Indian Child Welfare Act, was born to Archie and Tina in 1996, she was premature and likely suffering from fetal alcohol syndrome. Katie's doctors and other service providers have determined that she has numerous special needs.
Pseudonyms have been used throughout to protect the identity of the family members involved.
Tina, Katie's mother, suffered from mental health problems. Before Katie's first birthday, the state obtained temporary custody of Katie (largely because of worries that Tina was visiting Katie without supervision) but allowed Katie to remain in Archie's care. Tina later granted Archie full custody of Katie and subsequently relinquished her parental rights. Archie satisfied his first case plan and the state ended its temporary custody of Katie in September 1998.
In September 2002, when Katie began attending a special education kindergarten program, her teachers noticed signs of neglect. Katie often came to school with a bad odor, wearing the same clothes she had worn the day before, and a pull-up filled either with urine or dried (and therefore clearly not recent) feces. Sometimes dried feces were present on her legs.
The state took custody of Katie in October 2002. After placements at the Salvation Army Cares for Kids facility and two foster homes, Katie moved in December 2003 into the home of her paternal aunt, Patty, in Kenai. In the period before Katie left Anchorage, Archie had approximately 120 opportunities to visit Katie but did so fewer than thirty times.
After the state removed Katie from Archie's home, it created several case plans outlining numerous objectives and tasks. In order to achieve the objective of having Katie return home, Archie was supposed to arrange for services for Katie, attend all of his counseling appointments, and visit with his daughter as scheduled. Archie also had to develop "a 1 and 5-year plan for the medical and mental needs for [Katie]." OCS instructed Archie as part of the plan to "address [Katie's] medical appointments[,] educational plan, appropriate daycare, contact information for servic[e] providers and current services and future services needed for [Katie's] special needs."
Questions were again raised about Archie's parenting in the fall of 2003, when Head Start teachers observed that Katie's half-siblings, Chloe and Caden, were arriving at school as Katie had used to, wearing wet and dirty pull-ups and the same clothes as they had the day before. The state assumed temporary custody of Chloe, Caden, and Katie's step-brother, Charlie, on October 1, 2003, after the superior court concluded that the children were being neglected. Despite the change in custody, these three children remained in Archie's home.
In addition to arranging for visitation with Katie, the state provided numerous other services to Archie throughout this period. OCS offered Archie bus passes so that he could visit his daughter and it assisted Archie in obtaining counseling. The Cook Inlet Tribal Council, upon the state's referral, provided Archie with home-based services and parenting classes. For a long while, Archie failed to take advantage of the services provided — he missed therapy sessions, he failed to attend parenting classes, and the tribal council decided to terminate its home-based services because they had been unsuccessful. The state did begin noticing improvements in Archie's compliance in the spring and summer of 2004, close to two years after Katie had been removed from Archie's home. Archie had completed parenting classes, was talking with Katie on a weekly basis, and was participating in therapy. The Cook Inlet Tribal Council began once again to provide home-based services. A little over a month before the parental rights termination trial, Archie contacted the head of the elementary school that Katie would attend and the fetal alcohol syndrome clinic at the Alaska Native Medical Center to discuss which services would be available for his daughter.
Since December 2003 Katie has lived with her paternal aunt Patty. Patty has been able to provide Katie with a great deal of consistency and attention and Katie has emotionally bonded with her.
During the termination trial, the superior court heard from three experts testifying on behalf of the state. The testimony of Dr. Ronald Brennan, an expert in developmental pediatrics, supplemented the report he had written after assessing Katie in July 2003. In the report, Dr. Brennan recommended that Katie "remain in a stable, able, loving, nurturing and capable long term home environment, which is capable of recognizing all of her complicated medical, educational, developmental, behavioral and nurturing special needs. . . ." Vicki Siter, an expert in pediatric speech and language pathology, and Julie Hadden, an expert in mental health counseling, both knew Katie from the work they had done with her in Kenai. Siter testified that Katie required consistency and non-stop supervision. Hadden concurred, explaining that minor changes in Katie's schedule led her to regress and that in her opinion "a transition into a less stable environment, one that would be perhaps chaotic, or inconsistent would have a tremendous impact on [Katie] emotionally in a negative way."
The court also heard from a number of lay witnesses, including Breanna Ochoa, the social worker responsible for Archie's case at the time of the termination trial. Ochoa testified that Archie and his family "are still focused on very basic, kind of crisis-driven goals, you know, financial. . . . [T]he family still is functioning on, I think, a fairly low level, and there's not a lot of structure in the home."
At the conclusion of the trial, the superior court decided to terminate Archie's parental rights. After deeming Katie to be a child in need of aid, a characterization that Archie does not dispute, the superior court made a number of findings that Archie contends amount to error. The superior court listed the numerous services provided both to Archie and to Katie and concluded that "[a]ctive efforts have been made to provide remedial services which efforts have been unsuccessful." The superior court also found, in light of all of the evidence, that Archie could not meet all of Katie's special needs and concluded that Katie would likely suffer serious emotional damage if returned to her father's care. Finally, the superior court found it to be in Katie's best interests for her father's parental rights to be terminated and for her to remain in her current placement with her aunt.
III. DISCUSSION
In order to satisfy the requirements of the Indian Child Welfare Act and the child-in-need-of-aid statutes and rules, the superior court needed to make five findings before terminating Archie's parental rights to Katie. The superior court needed to find: (1) by clear and convincing evidence that Katie is a child in need of aid as defined by AS 47.10.011; (2) by clear and convincing evidence that Archie has not, "within a reasonable time, [remedied] the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury"; (3) by a preponderance of the evidence that the department made active but ultimately unsuccessful efforts to prevent the breakup of the family; (4) by a preponderance of the evidence that termination of parental rights is in Katie's best interest; and (5) by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that custody by Archie will likely result in serious emotional or physical damage to Katie.
AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
AS 47.10.088(a)(1)(B)(ii); CINA Rule 18(c)(1)(A)(ii).
25 U.S.C. § 1912(d); CINA Rule 18(c)(2)(B).
CINA Rule 18(c)(2)(C).
25 U.S.C. § 1912(f); CINA Rule 18(c)(3).
Archie challenges three of the superior court's findings. First, he argues that the state did not make active efforts to reunite Katie with his family. Second, he contends that the testimony of the state's expert witnesses did not support the court's finding that Katie would likely be seriously emotionally or physically damaged if returned to his care. Finally, he disputes the superior court's finding that the termination of his parental rights is in Katie's best interest.
A. Standard of Review
"In a case involving the termination of parental rights, the trial court's factual findings will be reviewed under a clearly erroneous standard, and will be overturned only if this court is left with a definite and firm conviction that a mistake has been made." "Whether the superior court's findings comport with the requirements of ICWA or the CINA statutes and rules is a question of law that we review de novo."
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 949-50 (Alaska 2000).
Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (citations omitted).
B. The Superior Court Correctly Concluded that the State Made Active Efforts To Reunify Katie with Her Family.
Archie disputes the superior court's finding that the state made active efforts to reunify his family. Archie argues that the state, rather than actively assisting him, instead presented him "with an impossible task" when it asked him to draft one and five-year plans of what he intended to do to meet Katie's needs.
As Archie rightly points out, case plans are not supposed to be "performed on [their] own." In order to make active efforts to reunify a family, the state caseworker needs to take the parent "through the steps of the plan." Archie argues that since his caseworker did not explain what he needed to do to satisfy the one and five-year plan requirement, the state failed to take him through the steps of his case plan. We agree that the state's one and five-year plan requirement was problematic. While the preparation of such plans may indeed result in some pedagogical benefits, as the state argues, the plans may be beyond the ability of some parents to draft. Parents who have difficulty drafting plans may nonetheless be responsive to remedial efforts designed to make them suitable caretakers for their children.
N.A. v. State, DFYS, 19 P.3d 597, 602 (Alaska 2001).
Id.
Despite being problematic, the plan requirement did not "fatally compromis[e] the handling" of Archie's case as he contends. The record shows that after the state took custody of Katie in October 2002, it provided numerous services to Archie and his family, including supervised visitation with Katie, parenting classes and home-based programs, bus passes, counseling, and housing assistance. These services, taken together, constitute a de facto reunification program sufficient to satisfy the active efforts requirement. The existence of the one and five-year plan requirement does not negate the numerous active efforts that the state did make.
Moreover, the superior court did not base its conclusion that the state's active efforts had been unsuccessful on the fact that Archie had not drafted the one and five-year plans. Indeed, at no point did the superior court specifically mention the one and five-year plan requirement. Instead the superior court concluded that the state's active efforts had been unsuccessful because Archie "did not comply with his case plan in a timely manner." (Emphasis added.) Even without the existence of the one and five-year plan requirement, Archie still would not have "started to meaningfully engage in services (CITC home-based services, counseling for the children and therapy for himself and the stepmother, phone visitation with [Katie])" until eighteen months after Katie had been removed from the home.
C. The Superior Court Properly Concluded that Katie Would Likely Be Harmed if Returned to Archie's Custody.
1. The state provided sufficient expert testimony to support a finding beyond a reasonable doubt that placement with Archie was likely to result in serious damage to Katie.
Archie argues that because none of the state's experts could testify about the conditions in his home or his ability to parent Katie, the state did not introduce sufficient expert testimony to satisfy the requirements of the Indian Child Welfare Act.
In L.G., we explained that likelihood of serious harm to a child "can be proved through the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses." The superior court in this case explained that it was following L.G. by "draw[ing] its own conclusion from the expert and lay testimony" it heard about the likelihood of damage to Katie.
The superior court heard from three experts testifying on behalf of the state. Julie Hadden, who was quite familiar with Katie's needs, having worked with her as a mental health counselor, opined that moving Katie "into a less stable environment, one that would be perhaps chaotic, or inconsistent[,] would have a tremendous impact on [Katie] emotionally in a negative way." The state's other two experts, a developmental pediatrician and a pediatric speech and language pathologist, agreed about Katie's need for constant consistent care. The superior court also heard testimony from Breanna Ochoa, the social worker responsible for Archie's case at the time of the termination trial, about the continued crises faced by Archie's family and the lack of structure in Archie's home. This expert and lay testimony, when considered together as is permissible, amply supports the superior court's conclusion that Katie would not receive the care she needs and would resultantly be seriously emotionally damaged if returned to her father's home. The expert testimony about Katie's needs was sufficiently central to the court's conclusion so as to satisfy the Indian Child Welfare Act's expert testimony requirement.
While Archie is correct that the state's experts were unfamiliar with him and his parenting abilities, all three had first-hand knowledge of Katie and her needs. As a result, the expert testimony was sufficiently "based on the particular facts and issues of the case" to satisfy the Indian Child Welfare Act. C.J. v. State, Dep't of Health Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).
2. The superior court made a sufficient finding about the unlikelihood of Archie changing his behavior.
In order to conclude that a parent's custody of a child is likely to result in serious emotional or physical damage to the child, the superior court must find beyond a reasonable doubt not only "that the parent's conduct is likely to harm the [child]" but also "that it is unlikely that the parent will change [his] conduct." Archie contends that no expert addressed the latter "issue of whether or not [he] had been or would be able to change his conduct."
L.G., 14 P.3d at 950 (citations omitted).
The superior court, in finding that Katie would likely be harmed if returned to her father's care, concluded that Archie's home "would not be the stable, able, loving, nurturing and capable long-term environment which is capable of recognizing and meeting all of the child's complicated medical, education, developmental, behavioral and nurturing special needs." (Emphasis added.) The court's use of the words "would not be" suggests that it was considering not only Archie's behavior at the time of the trial but also what his behavior was likely to be for the near future. By concluding that Archie's home would not be the stable environment that Katie needed, the court made the sort of predictive finding sufficient to satisfy L.G.'s requirement that the parent's behavior be unlikely to change.
As explained above, the superior court may consider lay as well as expert testimony when determining whether a parent's custody is likely to result in damage to the child. The same permissible combination of lay and expert testimony described above informed the superior court's predictive finding.
Id.
We note that the L.G. opinion, which articulated the requirement that the court hear proof about a parent's likelihood to change, makes reference neither to L.G.'s potential for improvement nor an explicit superior court finding on the issue. In L.G., the court heard testimony suggesting that even if the parent changed her damaging behavior, it would be too late, since severing the children's existing attachments would irreparably damage the children. The superior court in this case reached a similar conclusion. Having heard testimony about Katie's difficulties in coping with even minor transitions, the court determined it to be contrary to Katie's welfare to be returned to her father "because of the great emotional difficulty [she] would suffer from moving to another placement, especially a risky placement, such as [Archie's] home."
Id. at 950-51.
Id. at 951.
Archie also suggests that the superior court should have accorded more weight to his improved parenting of his other children. Yet while Archie had changed enough to be able to care for his other children, it does not follow that he could care for Katie, given her special needs and susceptibilities extensively described by the state's expert witnesses.
D. The Superior Court Did Not Err in Finding that Terminating Archie's Parental Rights Was in Katie's Best Interests.
Archie also argues that the superior court erred when it found that terminating his parental rights would promote Katie's best interests.
When making its best interest determination, the superior court considered both the problems with Archie's home and the advantages of the aunt's home where Katie was living. The superior court characterized the aunt's home as providing a "stable, loving, nurturing, consistent home environment." Given the evidence in the record about Katie's special needs, the continued chaos in Archie's home, the care that Katie's aunt provided to meet Katie's special needs, and the progress that Katie was making while living with her aunt, it was not clearly erroneous for the superior court to find that terminating Archie's parental rights was in Katie's best interests.
IV. CONCLUSION
For the above reasons we AFFIRM the superior court's decision.