Opinion
Supreme Court Nos. S-10905, S-10944.
May 4, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Reese, Judge, Superior Court No. 3AN-99-737 CP, Superior Court No. 3AN-99-738 CP.
Robert L. Breckberg, John C. Dittman, Holt Breckberg, LLC, Anchorage, for Appellant.
Jena H. Eugene B. Cyrus, Law Office of Eugene B. Cyrus, P.C., Eagle River, for Appellant.
Darrell H. Kenneth C. Kirk, Kenneth Kirk Associates, Anchorage, for Appellee.
Brad S. Michael G. Hotchkin, Assistant Attorney General, Anchorage, Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This appeal involves the termination of the parental rights on behalf of two half-brothers, Nick H. and Sean H. Nick's father, Darrell H., and the mother of both children, Jena H., appeal. Darrell contends that he was denied due process and that various statutory criteria for terminating his rights were not satisfied. Jena disputes Nick's placement decision and contends that the Division of Family Youth Services (DFYS) had a duty to reunify the children with her extended family. Lastly, Sean's father does not appeal but nevertheless argues that the superior court should have considered less drastic alternatives to termination. We affirm for the reasons explained below.
Pseudonyms have been used to protect the privacy of the parties.
II. STANDARD OF REVIEW
We review factual findings in a termination proceeding under the clearly erroneous standard, which requires for reversal a "definite and firm conviction that a mistake has been made." We "ordinarily will not overturn the trial court's finding based on conflicting evidence," nor will we "reweigh the evidence when the record provides clear support for the trial court's ruling."
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
Id.
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000).
We review de novo whether the findings are consistent with the child-inneed-of-aid statutes and adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." We also apply our independent judgment when deciding due process claims.
Martin N., 79 P.3d at 53 (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).
Carvalho v. Carvalho, 838 P.2d 259, 261 n. 4 (Alaska 1992).
Lastly, we review placement decisions under the abuse of discretion standard, unless AS 47.14.100(e)(1) applies. Alaska Statute 47.14.100(e)(1) requires de novo review of DFYS's decisions not to place a child with a relative because of clear and convincing evidence that such a placement would result in physical or mental injury.
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529-30 (Alaska 2004).
Id.
III. DISCUSSION
Below, we provide a summary of each of the parents' contentions together with our decision concerning it.
A. The Reopened Hearing Cured Any Violation of Darrell's Due Process Rights.
Darrell argues that his exclusion from a supplemental hearing violated due process. Darrell was incarcerated and could not be reached by phone during the hearing due to phone problems at the jail, but his attorney was present and cross-examined the state's witnesses. We required that the hearing be reopened "so that [Darrell] will be given an opportunity to testify." Darrell now contends that the reopened hearing did not cure the due process violation because he was unable to confront the witnesses against him and assist his attorney with cross-examination.
Darrell had a due process right to be present at the supplemental hearing. We have held that "absent compelling circumstances to the contrary, a party to a proceeding . . . has the right to be present, regardless of whether he is in a position to affect the outcome of the proceeding." Furthermore, a party's exclusion from a hearing that they have a right to attend is not cured by the fact that their attorney was present.
Carvalho, 838 P.2d at 262-63 (quoting Ryfeul v. Ryfeul, 650 P.2d 369, 374 (Alaska 1982)).
See Ryfeul, 650 P.2d at 372.
We required the superior court to reopen the hearing so that Darrell could participate. During the reopened hearing, the court permitted Darrell to testify and to call the mother, Jena, as a witness over her attorney's objections. Moreover, the court asked Darrell, "Is there anything else [Darrell] needs to do to catch up with the hearing we had before?" It seems the court was open to considering recalling the state's witnesses for further cross-examination, but Darrell did not make such a request, or object to the structure of the reopened hearing.
Lastly, Darrell's asserted inability to help with cross-examination is not a structural error that would require reversal without a showing of prejudice. Because Darrell cannot show he was harmed by the procedures in the reopened hearing, we conclude that reopening the hearing cured the initial due process violation.
See A.M. v. Walker, 13 P.3d 484, 488-89 (Okla. 2000) (requiring mother to show prejudice, namely that her courtroom exclusion during her son's testimony impaired her ability to help with cross-examination).
B. The Superior Court Did Not Err in Terminating Darrell's Parental Rights Under AS 47.10.088.
Under AS 47.10.088, a trial court must make several findings before it may terminate parental rights. Darrell challenges three of these findings: (1) that clear and convincing evidence shows Nick has been subjected to conduct or conditions making him a child in need of aid under AS 47.10.011; (2) that clear and convincing evidence shows that Darrell has not remedied the conditions or conduct placing Nick at risk, or has failed to make sufficient progress in a reasonable period of time such that Nick remains at a substantial risk of physical or mental injury; and (3) that a preponderance of the evidence shows that DFYS made reasonable efforts at reunification. We consider each of these contentions below.
1. The superior court did not err in finding that Nick is a child in need of aid.
The superior court found that Nick was a child in need of aid (CINA) based on clear and convincing evidence that Nick was exposed to domestic violence, substance abuse and some neglect, relying on AS 47.10.011(8), mental injury; (9), neglect; and (10), substance abuse. Only one of the grounds in AS 47.10.011 is needed for a CINA finding. Because we conclude that the record adequately supports the finding that Nick was a child in need of aid under AS 47.10.011(10), we will not reach Darrell's contentions against the other statutory grounds.
AS 47.10.088(a)(1)(A); AS 47.10.011.
Under AS 47.10.011(10), the court must find that the parent's "ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child." Darrell argues that subsection .011(10) is inapplicable because he never "used or was under the influence of an intoxicant" in Nick's presence.
AS 47.10.011(10).
We held in Stanley B. v. State, DFYS that subsection .011(10) is satisfied when the parent's drug addiction was "at least partially responsible for his current and past incarcerations, and that his frequent and prolonged absences while incarcerated substantially impair his ability to parent" his children.
93 P.3d 403, 407 (Alaska 2004).
In that case, a finding that the parent took drugs in the presence of his children was not required for a determination that the child was a child in need of aid under subsection .011(10). Here, as in Stanley B., Darrell's drug use has at least in part contributed to his numerous incarcerations, which have negatively impacted his ability to properly parent Nick. Since Nick's birth in 1999 Darrell has been incarcerated numerous times. He admits to using cocaine in the past and to continuing to drink alcohol. Just before Nick's removal, Darrell, who had recently absconded from custody, was arrested for being in possession of a drug pipe. As recently as 2003 police discovered a crack pipe in Darrell's possession when he was arrested on other charges. Jena has accused Darrell of selling his son's belongings to buy drugs. On three different occasions, police officers observed that Darrell was intoxicated and arrested him for crimes including trespass and driving under the influence.
DFYS records indicate that Darrell has been charged with at least 48 crimes in Alaska since April 1986. He has been arrested for offenses including escape, dangerous drugs, shoplifting, burglary, resisting arrest, disorderly conduct, assault, and driving under the influence.
Therefore, the superior court did not err in finding that Nick was a child in need of aid under subsection .011(10).
2. The superior court did not err in finding that Nick remained at substantial risk of harm.
The superior court found that the conditions causing Nick to be placed at risk, substance abuse and domestic violence, "still exist. [Darrell] has untreated anger issues and untreated substance abuse issues. These alone are sufficient to place [Nick] at risk and they have also been closely related to the domestic violence history between the parties which places [Nick] at risk in their home."
Darrell argues that he had nothing to remedy because his behavior never harmed Nick or placed him at substantial risk of being harmed. Actual harm is not required for DFYS to intervene. Additionally, Darrell's behavior that put Nick at risk is discussed in part III.B.1, supra.
See Martin N., 79 P.3d at 54 ("[T]he state is not required to wait to intervene until a child has suffered actual harm.").
Darrell also asserts that he has worked on his case plans, attended required counseling and training, and addressed substance abuse issues. Although Darrell made some attempts to comply with his case plans, the record supports that the superior court did not err in finding that the risks to Nick were ongoing and had not been remedied. Darrell admitted never completing residential substance abuse treatment. He also acknowledged that he continued to drink alcohol as of August 2004, despite his conviction for driving under the influence. Additionally, although he claimed to have completed an anger management program, he never provided documentation and continued to exhibit violent behavior, kicking and shattering a glass door at DFYS. Moreover, he admitted in August 2004 that he still did not have his anger in check "when it comes to DFYS."
3. The superior court did not err in finding that DFYS made reasonable efforts at reunification.
The superior court found that DFYS made reasonable efforts at reunification as required under AS 47.10.088(a)(2) and 47.10.086. Darrell asserts that DFYS failed to make referrals for services prescribed by his case plan and made no effort to verify his attempts to complete the case plan requirements.
DFYS and the Department of Corrections offered a number of services. Darrell was provided with visitation, substance abuse treatment, a psychological assessment, bus passes, and drug testing. His social worker explained that progress on anger management and other programs could not be obtained until Darrell completed substance abuse treatment. Darrell failed to complete his substance abuse treatment and repeatedly refused other services offered to him. Additionally, he claimed to have completed parenting classes, anger management classes, and substance abuse classes, but never provided documentation verifying his claims.
When a parent is incarcerated, the Department of Corrections, rather than DFYS, may fulfill the requirement of providing services. Furthermore, we recognize that the scope of the services DFYS can provide is necessarily limited. G.C. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 67 P.3d 648, 653 (Alaska 2003).
We have held that "a parent's demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts." Because Darrell received several services aimed at reunifying him with Nick and refused other services, the superior court did not err in finding that DFYS made reasonable efforts at reunification.
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 991 (Alaska 2002) (citations omitted).
C. The Statute Does Not Require DFYS To Make Reasonable Efforts To Reunite the Children with Extended Family.
Jena argues that DFYS had a duty to make reasonable efforts to reunify Nick not only with her, but also with her extended family. While conceding that AS 47.10.086 does not specifically require extended family reunification, Jena cites to AS 47.05.060: "The purpose of this title as it relates to children is to . . . preserve and strengthen the child's family ties unless efforts to preserve and strengthen the ties are likely to result in physical or emotional damage to the child. . . ." In addition, Jena points to the relative placement preference in AS 47.14.100(e) as further evidence of the duty to try to reunify extended families and notes that AS 47.10.086 does not provide an exhaustive list of the efforts DFYS may have to make.
Jena notes a similar policy underlies the "active" reunification efforts required under the Indian Child Welfare Act, which applies in her son Sean's case. However this argument is moot because the superior court approved Sean's placement with her relatives in Fairbanks, although this placement later did not work out.
We will "decline to `modify or extend a statute where the statute's language is clear and the legislative history reveals no ambiguity.'" Furthermore, "the plainer the meaning of the language of the statute, the more convincing any contrary legislative history must be." When a statute's meaning appears clear, "the party urging another meaning `bears a correspondingly heavy burden of demonstrating contrary legislative intent.'"
Coughlin v. Gov't Employees Ins. Co., 69 P.3d 986, 994 (Alaska 2003) (quoting Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829, 831-32 (Alaska 2001)).
Id.
Id.
The language of AS 47.10.086(a) evinces that reunification efforts need not be directed at the extended family: "[T]he department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child. . . ." In addition, "family support services" are defined as "services and activities . . . to prevent removal of a child from the parental home." Moreover, although the list of duties in subsections (1) and (2) may not be exhaustive, these subsections again refer only to "the parent or guardian" in laying out to whom DFYS owes the duty of reasonable reunification efforts.
AS 47.10.086(a) (emphasis added). AS 47.10.086(a) provides:
(a) Except as provided in (b) and (c) of this section, the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an outof-home placement. The department's duty to make reasonable efforts under this subsection includes the duty to
(1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian. . . .
AS 47.10.990(9) (emphasis added).
Jena fails to meet the heavy burden of demonstrating contrary legislative intent in light of the clear language of the statute. She provides no relevant legislative history nor could we find any. The policy stated in AS 47.05.060 is not only too general to carry much weight since it applies to the entire title on welfare, social services, and institutions, it also is unclear as to who is included in "family." Furthermore, AS 47.14.100 does not suggest that DFYS has a duty to reunify extended families because it prefers relative placements only for temporary and not for adoptive placements.
AS 47.14.100(e), (f).
Because AS 47.10.086 does not require reasonable efforts at reunification with extended family members and because Jena does not argue that DFYS failed to make reasonable efforts to reunify her with her children, the superior court did not err in concluding that DFYS made reasonable reunification efforts.
D. DFYS Did Not Abuse Its Discretion in Placing Nick with an Unrelated Foster Parent.
Darrell argues that the superior court erred when it approved Nick's placement with his unrelated foster mother, Teresa, because DFYS violated AS 47.14.100(e) and its own internal policies preferring placement of a child with relatives. Darrell contends that DFYS failed to investigate the relative placement options that he provided. Jena similarly argues that Nick should have been placed with family, the Rices, under AS 47.14.100(e).
Barring certain exceptions, AS 47.14.100 prohibits DFYS from placing a child in foster care if a relative requests placement of the child in the relative's home. However, under AS 47.14.100(f), the preference for relative placement does not apply "to child placement for adoptive purposes." Placement for adoptive purposes, we have held, "entail[s] placement of a child with adults who wish to adopt the child" including placement in a pre-adoptive foster home. Moreover, it is "the specific purpose of the DFYS placement, not the general purpose of the custody granted to DFYS, that is important under subsection 100(f)."
AS 47.14.100(e) provides in pertinent part:
A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a relative by blood or marriage requests placement of the child in the relative's home. However, the department may retain custody of the child and provide for its placement in the same manner as for other children if the department
(1) makes a determination, supported by clear and convincing evidence, that placement of the child with the relative will result in physical or mental injury; . . . this determination may be appealed to the superior court to hear the matter de novo[.]
AS 47.14.100(f); see In re Adoption of L.E.K.M., 70 P.3d 1097, 1101 (Alaska 2003) (holding there is no blood-relative preference in adoption cases).
P.M. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 42 P.3d 1127, 1136-37 (Alaska 2002); S.S.M v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 3 P.3d 342, 347 (Alaska 2000).
P.M., 42 P.3d at 1137 (quoting S.S.M., 3 P.3d at 347).
Neither Jena nor Darrell requested review of DFYS's decisions not to place Nick with their relatives until after Nick's placement with Teresa had ripened into an adoptive placement. Darrell and Jena could have sought internal DFYS review of the placement decisions or sought review in the superior court at any time. However, Darrell and Jena waited to seek placement until after DFYS moved to terminate their rights in April 2001, and they appeal from the termination order.
AS 47.14.100(e)(1); CINA Rule 19.1(b); Erica A. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 66 P.3d 1, 10 (Alaska 2003).
We have held that "in reaching its termination decision, the superior court was not required to revisit its earlier placement decision" because termination orders render earlier placement issues moot. Furthermore, given the overriding importance of the best interests of the child, Jena and Darrell should not be able to seek reversal of Nick's now longstanding placement without considering the intervening circumstances between the time the placement decision was made and the time they chose to seek review of that decision. Thus, we conclude that the superior court could review Nick's placement in light of the circumstances at the time Darrell and Jena sought placement review, rather than at the time their initial requests for relative placement were denied.
Erica A., 66 P.3d at 10; see also Martin N., 79 P.3d at 52, 57 (finding that even though father and relatives first requested placement when child was first taken into DFYS custody, the "termination order renders earlier issues of placement moot").
Cf. In re Adoption of Bernard A., 77 P.3d 4, 8-9 (Alaska 2003) ("[F]oster care placement of a very young child in need of aid may ripen into an adoptive placement precisely because of the need for continuity of care . . . the perceived fairness of the result to the adults involved is necessarily of secondary, and far less, importance than the best interests of the child.").
When Darrell and Jena sought review, Nick was in an adoptive placement with Teresa. DFYS intended that Teresa would adopt Nick, and Teresa wanted to adopt the child. Thus, the relative placement preference in AS 47.14.100(e) no longer applied.
Moreover, DFYS did not abuse its discretion in deciding to continue Nick's placement with his foster mother. Teresa wanted to adopt him; Nick had lived with Teresa since June 2000 and had bonded with her and the other children in her care. Thus, the superior court did not err in approving Nick's permanent placement with Teresa.
E. Jena's and Darrell's Arguments that the Superior Court Made Inadequate Findings Are Moot.
Jena and Darrell argue that the superior court made inadequate findings in approving the children's permanent placements. Darrell argues that the superior court's findings on the statutory bases for termination were inadequate.
The superior court corrected any deficiencies in its findings in its written orders following supplemental hearings held on remand in January and August 2004. The court made detailed findings on the decision not to place Nick with the Rices and on the statutory bases for finding that Nick was a child in need of aid. Therefore, the arguments that the findings were inadequate are moot.
F. Sean's Father Waived His Argument that the Superior Court Should Have Considered Less Drastic Alternatives to Termination.
Sean's father, Brad, argues that courts in parental rights termination cases should be required to consider less drastic alternatives to termination. Brad waived this issue by failing to raise it in the superior court.
Padgett v. Theus, 484 P.2d 697, 700 (Alaska 1971) ("Ordinarily an issue which was not raised in the trial court will not be treated on appeal.").
IV. CONCLUSION
We AFFIRM the termination of Darrell's and Jena's parental rights and the placement of Nick with his unrelated foster mother, Teresa.