Opinion
Supreme Court No. S-12116.
September 13, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon L. Gleason, Judge.
Kathleen Murphy, Assistant Public Defender, Quinlan Steiner, Public Defender, Public Defender Agency, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, David W. Márquez, 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.
1. Rhoda W. gave birth to Wendy in September 2002. Following a petition by the Office of Children's Services (OCS) and a trial, the superior court terminated Rhoda's parental rights. Rhoda appeals, arguing that the state failed to make reasonable efforts to reunite her with Wendy. We conclude that the record supports the superior court's finding that the state made reasonable efforts.
Pseudonyms have been used throughout to protect the identity of the family members involved.
2. Wendy's father has not been involved in his daughter's life. His parental rights were previously terminated and he is not participating in this appeal.
3. Rhoda suffers from mental illness. She acknowledges having attention deficit hyperactivity disorder (ADHD). She has also been hospitalized after acute episodes of illness. In February 2003 Rhoda spent time in the Alaska Psychiatric Institute after reporting seeing "angels lifting her baby off the bed" and complaining of having "been anthraxed." A doctor at the institute diagnosed Rhoda as having "Psychotic Disorder NOS, R/O unknown substance induced delirium, R/O Bipolar Disorder, current episode mixed, severe, with psychotic features." Rhoda was hospitalized again in January 2005, when the police took her to the hospital after she complained that a neighbor worked for the CIA and was trying to poison her. The psychiatrist who treated Rhoda diagnosed her with bipolar disorder, hypomanic.
4. OCS assumed custody of Wendy in February 2003, after the Alaska Psychiatric Institute reported that Rhoda was going to discontinue her psychiatric treatment. Wendy has lived with her paternal grandparents in Fairbanks ever since.
5. The superior court terminated Rhoda's parental rights in October 2005. The superior court determined that Wendy was a child in need of aid because Rhoda "has a mental illness that places [Wendy] at substantial risk of physical harm or mental injury when the child is in [Rhoda's] care." The superior court also found that Rhoda had failed to remedy the conduct that placed Wendy at risk because "despite two psychiatric hospitalizations in recent years, [Rhoda] has consistently demonstrated an inability to acknowledge the severity of her mental health problems and the potential impact of her mental health problems on her ability to adequately parent her daughter." The court further found that the state had "proven by a preponderance of the evidence that it made reasonable efforts to try to achieve reunification of [Wendy] with [Rhoda], and that those efforts have been unsuccessful." Finally, the court concluded that the termination of Rhoda's parental rights would be in Wendy's best interests.
6. At the time that the superior court decided this case, AS 47.10.088(a)(2) required that before a court could terminate a parent's rights to a non-Indian child, the state had to prove by a "preponderance of the evidence that the department has complied with the provisions of AS 47.10.086." Alaska Statute 47.10.086 requires that, barring some exceptions not applicable in this case:
(a) . . . 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 out-of-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[.]
7. While this appeal was pending, the governor signed legislation changing the standard of proof for the reasonable efforts finding from a preponderance of the evidence to clear and convincing evidence. The legislation became effective immediately and applied to all pending cases, including ones such as this one on appeal. We remanded the case to the superior court "for the purpose of determining, by clear and convincing evidence, whether the State of Alaska made reasonable efforts to reunify the family." The superior court, after conducting a status hearing and reviewing the termination trial record and the parties' briefing on appeal, found that "the evidence presented to [the superior] court was clear and convincing that the State of Alaska made reasonable efforts to reunify the family in this case."
Ch. 20, §§ 1-3, 11, SLA 2006.
Ch. 20, §§ 12-13, SLA 2006.
8. Rhoda argues that the superior court erred when it concluded that the state made reasonable efforts to reunite her with her daughter. According to Rhoda, "OCS did not make timely efforts to identify appropriate services to enable [her] to remedy the conditions that made Wendy a child in need of aid in sufficient time to avoid termination of parental rights." Specifically, Rhoda argues that OCS filed its petition to terminate Rhoda's parental rights before it provided services "that it deemed critical" (namely a second psychological evaluation and an assessment of Rhoda's parenting abilities). Rhoda contends that as a result she had "insufficient time to realistically try to remedy [her] conduct."
9. To the extent that Rhoda is arguing that OCS did not make all of the efforts that the superior court found it to have made, we employ a clearly erroneous standard of review. The clearly erroneous standard requires us to review the record in the light most favorable to the party that prevailed in the superior court, in this case the state, and to overturn the superior court's factual findings only if we develop a "definite and firm conviction that a mistake has been made." Rhoda's main contention, that the superior court erred when it concluded that the state's reunification efforts satisfied the statutory requirement that such efforts be timely, poses a question of law, which we review de novo.
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
Id. (quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
Brynna B., 88 P.3d at 529.
10. The superior court found the state to have made numerous efforts to reunite Rhoda with Wendy. The superior court first noted that OCS: (1) "promptly arranged for a psychological assessment of [Rhoda] with Dr. Karen Ferguson to occur in May or June of 2003"; (2) "arranged for [Rhoda] to have supervised visitation on a regular basis with" Wendy; and (3) "obtained a parenting assessment" when the program supervising the visitation recommended that visitation be discontinued. Because Rhoda moved from Anchorage to Fairbanks during the period of OCS's involvement, and because Wendy lived in Fairbanks with her grandparents, both the Anchorage and Fairbanks offices of OCS were involved in the case, with the Anchorage OCS remaining in charge. The superior court found that the Fairbanks social worker "made reasonable efforts toward achieving reunification" by making referrals for parenting classes and a substance abuse assessment, arranging visitation, and providing transportation so that Rhoda could go to various appointments. The superior court described the Anchorage social workers' reunification efforts as "less consistent." However, the court determined that the Anchorage office had made some effort by: (1) preparing a case plan and trying "on occasion to obtain [Rhoda's] cooperation with that plan"; (2) making referrals for psychological evaluations and substance abuse assessments; and (3) arranging for supervision so that visitation could take place. A review of the record supports all of the superior court's findings.
11. Having found that OCS had made various efforts to reunite Rhoda with her daughter, the superior court addressed the issue of whether OCS's efforts were timely and reasonable. The superior court acknowledged that "the overall performance of the Department in working toward reunification was not outstanding in this case" and noted "some gaps in the provision of services to [Rhoda] over the course of this case." The superior court indicated that it did not believe the delays to be entirely OCS's fault, since "some of those gaps [in services] were due to [Rhoda's] own difficulty in engaging in the case plan and the difficulty that OCS personnel had in reaching her to relay information."
12. As we have previously recognized, "for purposes of determining the sufficiency of the State's remedial efforts, the superior court may properly consider a parent's demonstrated lack of willingness to participate in treatment." Review of the record supports the superior court's findings that OCS had difficulty in reaching Rhoda and that Rhoda often resisted engaging in services. Since almost all of Rhoda's failures to engage in services and her statements that she would not cooperate took place after OCS had already begun offering services, we need not worry that OCS used Rhoda's comments and conduct to evade its responsibility to offer services.
A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). In A.M., we addressed the issue of remedial efforts made pursuant to the Indian Child Welfare Act's "active efforts" requirement rather than the "reasonable efforts" requirement involved in this case. Id. Since "active efforts" is a more stringent standard than "reasonable efforts," M.W. v. State, Dep't of Health Soc. Servs., 20 P.3d 1141, 1146 n. 18 (Alaska 2001), anything a court can take into account when determining whether the state made active efforts is also permissible when a court is determining whether the state made reasonable efforts.
Rhoda appears to argue that OCS failed to take advantage of the willingness to engage in services that she expressed in her October 2003 email. However, Rhoda's desire to cooperate with OCS was short-lived, since she then refused to meet with the Fairbanks social worker until November 2003.
See A.M., 891 P.2d at 827 (cautioning that in order to avoid allowing the state "to argue, in all doubtful and difficult cases, that it had no duty to make active remedial efforts," a parent's willingness to cooperate must be assessed after remedial efforts have commenced, not before).
13. With respect to Rhoda's specific allegations of untimeliness, namely that the state arranged for a second psychological evaluation and a parenting assessment too late for Rhoda to change her behavior prior to the termination trial, the record indicates that the services would not have been any more helpful had they been provided to her sooner. The psychologist who conducted the second psychological evaluation recommended that Rhoda attend counseling (and that she continue to receive treatment for her ADHD). Since Rhoda had missed numerous counseling appointments at the Fairbanks Community Mental Health Center, she had previously demonstrated that she had difficulty attending counseling. Rhoda seems similarly unlikely to have followed the parenting expert's suggestions, even if they had been made earlier. According to the expert, she made recommendations during the supervised visits about how Rhoda could change her behavior. The expert testified that Rhoda was only able to respond to her guidance for "a very short period of time" and accomplished no lasting improvement.
14. The superior court's conclusion that the state's efforts were reasonable despite delays also finds support in our recent opinion in Winston J. v. State, Department of Health Social Services, Office of Children's Services. In Winston J., we acknowledged that the state did not arrange for paternity testing for eight months, even though the potential father was available for testing and even though the judge presiding over the case declared that paternity needed to be established. We upheld the superior court's finding of reasonable reunification efforts, explaining that "[w]hile the state's actions here might not have been a model of efficiency, the law does not require perfect efforts, just reasonable ones, and the record indicates that the state made reasonable efforts." The same can be said of the state's efforts in this case.
134 P.3d 343 (Alaska 2006).
Id. at 347.
15. Because the superior court's findings are supported by the evidence, and because we agree with the superior court's conclusion that the state's efforts to reunify Rhoda with Wendy, while not perfect, were reasonable, we AFFIRM the superior court's termination of Rhoda's parental rights.