Opinion
Supreme Court Nos. S-12991, S-12992.
December 24, 2008.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Philip M. Pallenberg, Judge, Superior Court Nos. 1JU-00-00035/36 CP 1JU-04-00035/36 CP 1JU-05-00038 CP.
Appearances: G. Blair McCune, Anchorage, for Appellant Carla W. Blaine H. Hollis, Juneau, for Appellant Edgar W. Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee State of Alaska. Dianne Olsen, Law Office of Dianne Olsen, Anchorage, Guardian Ad Litem.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.].
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Carla and Edgar W. appeal the superior court's judgment terminating their parental rights to their five children. Carla and Edgar argue that the superior court erred in finding that they did not remedy the conditions that placed their children at risk of harm within a reasonable time period, and that if returned, the children would likely suffer serious emotional or physical damage. In addition, Carla and Edgar contend that the superior court improperly relied on hearsay testimony. Because the admissible evidence introduced at the termination trial supports the superior court's decision, we affirm its judgment in all respects.
II. FACTS AND PROCEEDINGS
A. Factual History
Carla and Edgar W. are the parents of five children, Rachel, Rhonda, Jane, Leah, and Edgar, Jr. Carla is a member of the Hoonah Indian Association and Edgar is a member of the Chilkat Indian Village. The children are Indian children for purposes of the Indian Child Welfare Act (ICWA). The family has resided at various times in Anchorage, Klukwan, Haines, and Hoonah. At the time of the termination trial, Carla and Edgar had been living in Hoonah. Rhonda, Jane, Leah, and Edgar, Jr. had been living with family members who were willing to permanently care for the children. Rachel was residing in a group home as a result of some behavioral issues.
We use pseudonyms for all family members to protect their privacy.
See 25 U.S.C. § 1903(4) (2000).
The Office of Children's Services (OCS) first became involved with the family in 1998. In November 1998 OCS received a report of harm to Rachel, then three years old and Carla and Edgar's only child. OCS met with Carla and Edgar who agreed to participate in parenting education through the Head Start program. They also agreed to an evaluation of Rachel by a child psychologist and an individualized education plan that included speech and language services. Rhonda was born the following year on September 19, 1999.
This report was made to the Division of Family and Youth Services (DFYS), OCS's predecessor.
In January 2000 OCS received a report alleging that Edgar had struck Rachel in the face with his fist, leaving the four-year-old child with a black eye. Edgar was convicted of fourth-degree assault and was ordered to participate in anger management classes while on probation. Carla and Edgar signed case plans with OCS agreeing to refrain from physically abusing Rachel and to comply with all court orders.
In March 2000 OCS received a report of medical neglect of Rhonda, who was then seven months old. OCS was alerted after Carla and Edgar failed to seek medical attention for Rhonda's severe respiratory illness, which required the child to be medivaced to Sitka and hospitalized for eleven days. On April 29, 2000, OCS filed a petition for adjudication of children in need of aid. The petition described the "extensive efforts" that had been made by the Chilkat Indian Village to work with the family. OCS noted that although the tribal agency had developed individualized parenting programs and had offered a range of services, Carla and Edgar had "viewed these offers of support as undue interference and . . . used every excuse to reject services." OCS further claimed that the parents had "consented to [OCS] services and signed a case plan, but did not follow through with such services identified in the case plan."
After an evidentiary hearing on May 1, 2000, the superior court found probable cause to believe both children were in need of aid. After a contested adjudication hearing, the court found the children in need of aid based on Carla and Edgar's failure to provide necessary medical treatment, infliction or risk of infliction of physical harm on the girls, and parental neglect. The children were placed with their paternal grandparents.
See AS 47.10.011(4), (6), (9).
After their children were removed from their home, Carla and Edgar cooperated with OCS by signing case plans, attending appointments, and completing most required activities. The children were released to their parents on August 28, 2000, while OCS retained legal custody for one year. The court held a disposition hearing on November 14, 2000, and released custody of the children to Carla and Edgar but ordered OCS to supervise the care and control of the girls for up to two years. On March 6, 2001, a third daughter, Jane, was born. The State did not seek custody of Jane, who was described as a "healthy well nourished child."
On November 2, 2001, OCS petitioned the court to release it from its supervisory duties concerning Rachel and Rhonda. An affidavit submitted by the social worker in the case noted that while Carla continued to struggle with state involvement in the parenting of her children, she was participating in the Parents as Teachers program and the Hoonah Indian Association had an "open and service-oriented relationship with the family." On November 8, 2001, the court returned custody of the two oldest daughters to Carla and Edgar and released OCS from all responsibility for the children. A fourth daughter, Leah, was born a year later on October 5, 2002.
In late 2003 OCS received a new report of harm, and shortly thereafter Edgar was arrested and subsequently convicted of assault in the fourth degree following a domestic violence incident in the home. While Edgar was in jail, Carla reported to a social worker other incidents of domestic violence and verbal abuse by Edgar towards her and the children, and she obtained a twenty-day protective order.
OCS arranged for each parent to undergo a mental health evaluation. Edgar was assessed in 2004 and was diagnosed with depressive disorder, post-traumatic stress disorder, and schizotypal personality disorder. Carla has had several psychiatric and psychological evaluations, including assessments conducted in 2000, 2004, 2005, 2006, and 2007. In April 2004 Carla underwent a psychiatric examination at Bartlett Hospital in Juneau, where the evaluating doctor noted that her "judgment may be impaired due to a delusional system that appears to be fixed." She was diagnosed with acute schizophrenia, but she did not accept her diagnosis and refused to obtain treatment. According to OCS, Carla warned one mental health assessment scheduler that people "who mess with me get hurt and their kids get hurt," and that God would take vengeance on those who interfered with her. Subsequent assessments have led to different conclusions, including a diagnosis of a delusional disorder.
OCS received eight reports of harm regarding Carla and Edgar's children between November 1998 and February 2004. On April 20, 2004, OCS received an additional report from the Hoonah medical clinic that Rachel, the eldest child, was suffering from medical and physical neglect. The clinic reported that Rachel had a serious rash on her leg that had been neglected and that her underwear was soiled with urine and vaginal discharge. Both parents promised to discuss OCS's concerns with medical personnel from the clinic, but they did not keep their appointment. On April 26, 2004, OCS received another report of harm regarding neglect of all of the children.
On May 6, 2004, OCS filed a second petition to adjudicate Rachel, Rhonda, Jane, and Leah as children in need of aid. A temporary custody hearing was held on May 26 and 27, 2004, and the court found probable cause to believe that all four girls were children in need of aid based on physical and mental harm or the risk of such harm, neglect, and the parents' mental illnesses, mental deficiencies, or emotional disturbances. The children were removed from the home and again placed with Edgar's parents. OCS prepared detailed case plans for both Carla and Edgar. Following a contested trial in November 2004, the four girls were adjudicated as children in need of aid based on the same statutory factors from the temporary custody hearing. Over the course of 2005 and 2006, OCS worked with each parent on their case plans, which focused on managing their mental health and recognizing and responding appropriately to their children's needs.
See AS 47.10.011(6), (8), (9), (11).
A contested disposition hearing was held three months later in February 2005. The court heard testimony that Carla and Edgar were not fully engaged in the myriad services being provided to them and were not making progress in their case plans. The court found that OCS had made active efforts to prevent the breakup of the family and granted custody to the State for up to two years. On May 26, 2005, the court approved OCS's plan for adoption of the girls. The permanency reports of both OCS and the guardian ad litem noted that Carla and Edgar were slow to engage in services, made slow progress, and did not seem to be benefiting from the services that had been provided to them.
Edgar, Jr. was born in April 2005 while his four sisters were in foster care. After his birth, Carla and Edgar stipulated that he was also in need of aid, and the court granted the State's request for temporary custody on May 3, 2005. OCS had initially planned to place Edgar, Jr. in foster care, but it allowed Edgar, Jr. to remain in his parents' home after an extensive "safety net" of service providers was assembled. This included twice-daily unannounced home visits by the Hoonah Indian Association ICWA worker, participation by Carla and Edgar in the Parents as Teachers and Even Start programs, parent coaching, monitoring of Edgar, Jr.'s development by a psychologist, participation in additional individual and marital counseling, and enrollment of Edgar, Jr. in a local day care center program. A disposition hearing was held in September 2005. The predisposition report submitted by the social worker noted that Carla and Edgar were doing well with Edgar, Jr. in the home and had been willing to accept the intensive services laid out in their case plans. As a result, OCS changed the permanency goals for the girls back to reunification.
Despite this initial progress, by the time of a subsequent permanency hearing on May 4, 2006, OCS had reinstated the plan for adoption of the girls. OCS noted that, despite extensive services, neither Carla nor Edgar understood how Carla's mental illness impacted her behavior and ability to parent. The guardian ad litem and special advocate noted that Carla had refused to follow through on the part of her case plan calling for mental health treatment. Consequently, the court approved the plan for the girls to be adopted at the May 2006 contested permanency hearing. Although Edgar, Jr. remained in the home, he began to experience developmental delays. Edgar, Jr.'s safety net began to fail when his day care center closed and Carla's behaviors became so alarming that his treatment providers refused to enter the family's home or became unwilling to work with Carla altogether. B. Procedural History
In February 2007 OCS petitioned to terminate Carla and Edgar's parental rights to all five of their children. The termination trial was held on October 3-8, 2007, before former District Court Judge Ethan L. Windahl, serving in the capacity of superior court master. On October 15, 2007, Master Windahl put his findings on record and recommended that Carla and Edgar's parental rights be terminated. The master's findings were presented to the superior court on October 23, 2007. On January 4, 2008, Superior Court Judge Philip M. Pallenberg approved the master's recommendations and issued an order terminating Carla and Edgar's parental rights to their five children. In doing so, the superior court found by clear and convincing evidence: that the children were in need of aid based on mental injury or risk of mental injury, resulting from, among other things, exposure to domestic violence, neglect, and risk of harm to the children due to each parent's mental illness, emotional disturbance, or mental deficiency; that Carla and Edgar failed to remedy the harmful conduct or conditions or, in the alternative, failed to make enough progress toward this end within a reasonable time so that returning the children to them would place the children at a substantial risk of harm; and that OCS made active but unsuccessful efforts to provide services and programs designed to prevent the family's breakup. The court also concluded that the termination of Carla and Edgar's parental rights was in the children's best interests, and that there was evidence beyond a reasonable doubt that the children would likely suffer emotional or physical damage if returned to the parents.
By the time of the order, the four girls had been in foster care for three and a half years, and Edgar, Jr. had been in foster care for seven months.
Carla and Edgar appeal.
III. STANDARDS OF REVIEW
"In a child in need of aid case, we will affirm the superior court's factual findings unless they are clearly erroneous." "Findings are clearly erroneous if a review of the entire record in the light most favorable to the prevailing party leaves us with a definite and firm conviction that a mistake was made." In reviewing the superior court's decision, we construe the entire record in the light most favorable to OCS and look for evidence that supports the superior court's findings. We have consistently held that it is the role of the trial court to judge the credibility of the witnesses and to weigh conflicting evidence. Thus, "[c]onflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides clear support for the superior court's ruling." We use our independent judgment to review whether the superior court's findings comport with the requirements of the Indian Child Welfare Act (ICWA) or the child in need of aid (CINA) statutes and rules.
Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (internal quotation marks omitted).
Thomas H. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 184 P.3d 9, 13 (Alaska 2008).
See Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (internal quotation marks omitted).
See R.G. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 43 P.3d 145, 149 (Alaska 2002).
Martin v. Coastal Vills. Region Fund, 156 P.3d 1121, 1129 (Alaska 2007) (citing Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005)).
Maisy W. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citations omitted).
Carl N., 102 P.3d at 935.
Decisions about the admissibility of evidence are within the trial court's sound discretion. "We will reverse only if upon review of the record as a whole, we are left with a definite and firm conviction that the trial court erred in its ruling and the error affected the substantial rights of a party." Whether a parent's due process right was violated in a termination proceeding is a question of law that we review de novo. IV. DISCUSSION
Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).
Id.; see also Alaska R. Civ. P. 61.
Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska 2005).
Termination of parental rights to an Indian child under ICWA and the CINA rules and statutes requires that the superior court make five findings. The superior court must find by clear and convincing evidence that the child is in need of aid as described in AS 47.10.011 and that the parent has not remedied within a reasonable time the conduct or conditions in the home that place the child at substantial risk of physical or mental injury. The court must find by clear and convincing evidence that the department has made active but unsuccessful efforts to provide services and programs designed to prevent the breakup of the family and by a preponderance of the evidence that termination of parental rights is in the child's best interests. Finally, the court must find by evidence beyond a reasonable doubt, including qualified expert testimony, that continued custody is likely to cause serious emotional or physical damage to the child.
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i).
See 25 U.S.C. § 1912(d) (2000); CINA Rule 18(c)(2) (B).
CINA Rule 18(c)(3).
25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
In this case, Carla and Edgar challenge two of the superior court's findings: (1) that they failed to remedy the conditions that posed a danger to their children within a reasonable time and (2) that their children would likely suffer serious emotional or physical damage if returned to them. In addition, Carla and Edgar argue that the trial court improperly relied on hearsay testimony. We address the evidentiary question first.
A. The Superior Court Did Not Erroneously Rely on Inadmissible Evidence.
Carla and Edgar contend that the superior court improperly relied on hearsay testimony. Decisions about the admissibility of evidence are within the trial court's sound discretion. "We will reverse only if upon review of the record as a whole, we are left with a definite and firm conviction that the trial court erred in its ruling and the error affected the substantial rights of a party."
Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).
Id.; see also Alaska R. Civ. P. 61.
At the termination trial, OCS requested that the trial court consider testimony and exhibits from five prior hearings. At an evidentiary hearing on September 20, 2007, the parents objected to the court's consideration of testimony and exhibits from three of the hearings — two probable cause hearings and the adjudication hearing — on the basis that the testimony and exhibits were inadmissible hearsay for the purposes of the termination trial. When the trial got under way, the master announced that since he was "relatively new to the case," he had familiarized himself with the file. He then notified the parties how he planned to proceed:
I've previously told counsel that I did not go back and review the transcripts or listen to any testimony or look at any of the exhibits from the previous adjudications. I looked at the transcripts from the disposition hearings . . . but we're going to go ahead today . . . and then if at a later time I feel it's necessary for me to go back and review any of those previous proceedings, I'll do that. But I just want everybody to know where I stand as the trier of fact so that we're all dealing with the same factual basis.
Edgar's counsel reiterated the parents' objection to the court's consideration of evidence from the two probable cause hearings and the adjudication hearing, and requested that if the court chose at a later date to consider evidence from those hearings, he would appreciate the court putting that on the record "so there's a clear record as to what this court has and has not considered as evidence in this proceeding." The court agreed that it would.
Carla and Edgar's objections stem from the superior court's findings and conclusions where the court stated:
At the outset of the hearing, the court held that it was permissible to support its findings by relying on testimony and evidence from prior proceedings, held mostly in front of Superior Court Judge Larry Weeks. The court, however, made its findings based primarily on the evidence presented at the trial and the parties' agreement to consider disposition transcripts from February 11, 2005 and May 4, 2006.
(Emphasis added.)
Carla and Edgar argue that this statement by the court makes it "clear" that the court "considered some testimony and/or other evidence from prior hearings" over their objection. Edgar's counsel filed objections to the court's proposed findings, claiming that it was "unclear as to exactly what evidence the court did and did not consider in reaching its findings." The final findings adopted by the superior court contained no further specificity as to what prior evidence or testimony had been considered. Carla and Edgar argue that the superior court did not fully disclose the basis for its decision to terminate their parental rights.
These arguments are not persuasive. The trial court was explicit in noting that its decision was based on "testimony and evidence presented to [it] personally at the termination trial." Moreover, the trial court informed the parties that its findings and conclusions were limited in that manner unless otherwise noted.
Carla and Edgar also argue that the trial court's consideration of evidence from the three disputed prior probable cause and adjudication hearings violated CINA Rule 18(f). But as OCS persuasively notes, it does not appear that the trial court actually reviewed much, if any, of the earlier proceedings. At the very beginning of the termination trial, the trial court stated that it had reviewed the uncontested transcripts but not the other transcripts that the parents objected to. The trial court also reassured the parties that it would inform the parties if it reviewed other materials in the future.
In D.M. v. State, Division of Family Youth Services, we affirmed the superior court's termination of a parent's rights after a trial in which the court relied on findings from an earlier adjudication hearing. Ordinarily adjudication requires proof that the child is in need of aid by a preponderance of the evidence, while termination requires proof by clear and convincing evidence. In D.M., the State sought findings under the higher standard at the adjudication hearing. We affirmed the procedure, stating that at a termination proceeding, "a court could review the evidence offered at the adjudication hearing, and, applying the stricter proof standard, make supplemental findings satisfying the requirements for termination." In addition, "[a]bsent new evidence impeaching or supplementing the earlier evidence," this procedure "would not be superior to relying on adjudication-stage findings made under the stricter standard while the evidence was still fresh."
995 P.2d 205, 206 (Alaska 2000).
Id. at 208.
Id. at 209.
Id.
Id.
Carla and Edgar respond that in 1999, CINA Rule 18 was amended and now prohibits hearsay that does not fall within any established exception. Yet we have never held that CINA Rule 18, as amended, overruled D.M. and CINA Rule 18 does not prohibit trial courts from relying on earlier testimony as long as that testimony was properly admitted and has not been impeached or supplemented.
Finally, Carla and Edgar claim that their due process rights were violated as a result of the trial court's review of evidence from the three contested hearings. We set out the test for determining the requirements of due process in CINA proceedings in D.M.:
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[]
D.M., 995 P.2d at 212 (quoting Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)).
In this case there is little risk of an erroneous deprivation of Carla and Edgar's private interests. The likelihood that the trial court based its decision on evidence from the three contested hearings is negligible. It is not clear that the trial court reviewed evidence from the three contested hearings, and Carla and Edgar are not able to say what previous testimony was relied upon in error. Even if the trial court reviewed the previous hearings, it was not forbidden from relying on earlier testimony as long as that testimony was properly admitted and has not been impeached or supplemented. And the trial court stated in its oral findings that unless otherwise noted, it based its decision on the evidence presented at the termination trial.
Finally, as OCS notes, CINA cases are often handled by a single judge, and by the time of termination, that judge is intimately familiar with the history of the case and has typically presided over many hearings. If the master had reviewed all of the earlier proceedings in Carla and Edgar's case, this would "merely have put him in the position that most judges in termination cases presumptively occupy." Reviewing the entire case record would not alone constitute error because, as we have noted, "[w]hile, in a jury trial, the admission of improper evidence may pose a threat to the accuracy of the outcome, in a CINA proceeding, the judge is more capable of attributing the proper weight to the evidence presented by the parties." B. The Superior Court's Findings Were Not Clearly Erroneous. 1. The superior court did not err in finding that Carla and Edgar failed, within a reasonable time, to remedy the conduct that put the five children at substantial risk.
In re A.S.W., 834 P.2d 801, 806 (Alaska 1992).
Alaska Statute 47.10.088 provides for termination of parental rights where the state proves by clear and convincing evidence that the parent has not remedied harmful conduct or conditions or the parent has failed to make enough progress within a reasonable time such that there is still a substantial risk of harm to the child if returned to the parent. In making these determinations, the court may consider any fact relating to the best interests of the child, including:
Clear and convincing evidence is evidence more than a preponderance but less than proof beyond a reasonable doubt. Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 530 n. 12 (Alaska 2004).
AS 47.10.088 provides in relevant part:
Involuntary termination of parental rights and responsibilities. (a) Except as provided in AS 47.10.080(o), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds by clear and convincing evidence that
. . . .
(2) the parent
(A) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(B) has failed, within a reasonable time, to remedy 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; and
(3) the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.[]
AS 47.10.088(b)(1)-(5).
Here, the superior court found by clear and convincing evidence that Carla and Edgar failed to remedy the conduct or conditions in their home that had placed their children at substantial risk of harm. Accordingly, the superior court terminated Carla and Edgar's parental rights to all five of their children. Carla and Edgar contend that inconsistencies in diagnoses of Carla's mental illness undermine the court's findings and that the trial court ignored evidence that they had progressed with their case plans and improved their parenting skills.
The superior court found that Carla and Edgar "continue to deny there are any problems with their mental health or their parenting." Carla and Edgar challenge this finding, arguing that it is "inconceivable how a court can seriously require unsophisticated people" like themselves to "appreciate and understand the nature of Carla's mental illness when highly-trained experts all arrived at radically different conclusions concerning Carla's mental health." Carla and Edgar rely on the testimony of the Chilkat Indian Village's ICWA worker, who stated that "[a]ll the doctors' diagnoses were never the same." They further argue that it was unreasonable for the superior court to find that Edgar "could somehow deal with a disorder that professionals were unable to treat or even, with any consensus, define."
The record does reflect a variety of professional opinions on the classification and suggested treatment for Carla's mental illness. Dr. Aryeh Levenson, a psychiatrist who has worked with Carla since 2000, summarized the diagnosis as covering a range of disorders:
Different providers, including myself, have posited different psychiatric diagnosis, ranging from those in the chronic psychotic disorder realm (e.g. schizophrenia) to the more acute psychotic spectrum realm (e.g. psychosis secondary to a mood disorder or a brief psychotic episode). Additionally providers have posited possibilities that symptoms have arisen from post-traumatic stress disorder versus the possibility that her symptoms may be due to a personality disorder.
But Dr. Levenson denied that the different mental health professionals' diagnoses differed substantially from each other: "[E]veryone is looking at something along a chronic ingrained process that interferes with reality testing . . . the exact terminology is what is different, but they all run along the same kind of spectrum condition."
Although the professionals who examined Carla may have reached varying conclusions about the labels to use in diagnosing her, their differences do not undermine the superior court's adoption of Dr. Paul Craig's diagnosis of delusional disorder and its finding that Carla and Edgar "continue to deny there are any problems with their mental health or their parenting." Dr. Levenson testified that Carla's specific diagnosis was not as "important" as identifying concerning behaviors that might affect her ability to parent. The superior court agreed, and it noted that while it was "not qualified to make a diagnosis of [Carla's] mental issues," it was "persuaded that Dr. Craig's diagnosis of delusional disorder is a reliable explanation." The superior court went on to conclude:
[Carla's] statements simply do not relate on a rational basis to the reality facing her as a mother whose children have been removed from her care. [Carla], when on the witness stand to attempt to convince the court to return the children to her custody and care, talked on at least two occasions about wanting to join the National Guard and to go to Iraq and kill Muslims. When findings were made she denied making those statements.
Dr. Levenson acknowledged that a parent's long-term mental illness is not grounds, by itself, for a finding that the parent has not remedied conduct or conditions that lead to a child's removal: "We all know individuals with chronic mental illnesses, including schizophrenia, who can be loving and caring parents." But Carla's lack of response towards her mental illness is evident throughout the trial record. The superior court's findings are supported by trial testimony that Carla denied the existence of mental illness and had no desire to receive treatment for it. Mental health professionals who worked with Carla noted in their evaluations that she either would not or could not acknowledge that she had a mental health issue. Indeed, after one evaluation and referral for further psychiatric treatment, Carla failed to follow through with the treatment for over seven months, even though it was a critical component of her case plan.
The likelihood that the conditions created by Carla's conduct will continue is also high. Dr. Levenson and Dr. Craig testified that Carla's conduct was unlikely to change. Dr. Levenson testified that when Carla was confronted with the seven years of her children's neglect and "fairly consistent observations about [her] limited abilities to parent," there was "virtually no insight or acknowledgment" that problems existed. Dr. Levenson testified that Carla explained away reports of neglect by rationalizing that the reports were "either lying or misrepresenting it or persecuting them or misunderstanding her." Dr. Levenson concluded that Carla is unlikely to be able to change her behavior since there is "no ability to reflect on what may be part of her issues." In addition, Dr. Craig testified that delusional disorder is "not readily treatable" with psychotherapy or psychotropic medication.
Carla's behavior and inability to control herself in the courtroom confirmed the superior court's view that she is unable to understand that she has a mental heath issue that affects her ability to parent. Carla repeatedly interrupted the trial court during the oral findings of fact on October 15, 2007. The superior court also found that Edgar was "suffering from his own mental health diagnosis for which he is medicated [and] shuts down when his wife begins exhibiting [signs] of her mental illness. He is unable to calm her or control her. . . ."
In finding that Carla and Edgar did not remedy the conduct or conditions in the home that led to their children's removal, the superior court concluded that "OCS has been providing services and assistance for almost nine years. The same problems and behaviors which first brought [Carla and Edgar's family] to the attention of OCS are in evidence today." While there was evidence presented that Carla received a variety of mental health diagnoses, this evidence does not undermine the court's findings that she and Edgar failed to remedy the conduct that put their children at risk.
The superior court also found that "[n]o amount of in-home services, parenting classes, or counseling has been able to create change in [Carla and Edgar's] ability to meet their children's needs." It relied on evidence that Carla and Edgar often refused to accept assistance and that service providers found them to be unable to benefit from the services that they did accept. Dr. Levenson noted that there was a "complete disconnect" between the parenting education provided to Carla and the care that she then provided her children. Dr. Craig testified that it was "highly improbable" that Carla would change her behavior or benefit from feedback provided in parenting classes. Lynn Osheim, the former director of the Parents as Teachers program and an expert in child development, testified that when Carla and Edgar attended classes, they had minimal interaction with their children and exhibited a "pretty low affect." An OCS social worker confirmed that visits with the children demonstrated that the relationship and interaction between the parents and their children was "awkward" and "very stilted."
Carla and Edgar argue that the finding that they failed to remedy the conduct that put their children at risk is erroneous because it "ignores substantial progress" that they made. But while there was testimony that Edgar, Jr. initially did well in the home with his parents, his social and emotional development began to decline after the numerous services comprising the safety net that OCS had constructed became unavailable. Carla and Edgar's visits to service providers became less frequent, and the mental health counselor in Hoonah was "no longer willing to go into the home" and was unwilling to further work with Carla. As the guardian ad litem observed, Edgar, Jr.'s decline "occurred at the same age at which Edgar, Jr.'s sisters had begun to have issues." Alaska Statute 47.10.011(9) recognizes that the neglect of a sibling is cause for a finding that other siblings have also been neglected: "[C]onduct by or conditions created by the parent, guardian, or custodian [that] have subjected the child or another child in the same household to neglect" are grounds for a court to find a child is in need of aid.
Thus, while there is evidence in the record supporting Carla and Edgar's assertion that they made progress with their case plans, there is also a great deal of evidence in both the trial transcript and the trial court's oral and written findings to support the finding that the parents did not remedy the conduct or conditions in the home that led to the children's removal.
2. The superior court did not err in finding that returning the five children to Carla and Edgar would likely result in serious emotional damage.
Carla and Edgar argue that the superior court clearly erred when it determined, beyond a reasonable doubt, that returning the children to them was likely to result in serious emotional and physical damage. They maintain that the evidence presented at trial supports their assertion that the children's problems were not attributable to their actions. They also argue that there is no evidence in the record supporting a causal link between the children's developmental delays or problems and Carla's mental illness.
But the superior court found that Carla's "mental health issues have left her children with developmental delays, violent outbursts, irrational fear of bathing resulting in screams, and uncertainty based on her false promises." The court heard testimony that Carla and Edgar had subjected their children to neglect and would likely continue to do so. For example, when OCS removed Rachel from the home, she was wearing size four shoes but her feet were actually a size nine. The children's grandmother testified that Rhonda, Jane, and Leah were afraid of bathing and Rhonda reported it was because Carla had put her head under water to stop her from screaming "lots of times."
The children also displayed varying degrees of developmental delays. The children's grandmother testified that when the girls were first placed in her care, they had communication problems, lacked language skills, and communicated by screaming. Jane was three years old when she was removed from Carla and Edgar's care, but she was not yet potty-trained. When Leah was removed from the household at the age of eighteen months, she could not walk or talk and was underweight. While evidence supports Carla and Edgar's assertion that Edgar, Jr. had been progressing better than his sisters, expert testimony reflected that he also had delayed walking and talking skills.
Professionals who worked with Carla, Edgar, and their children testified that when a child has delayed communication, mobility, and self-care for non-physical reasons, it is usually because the child does not have any modeling at home. Furthermore, several witnesses testified to the link between Carla's mental illness and her children's problems. When asked to explain how a delusional disorder can impact a parent's ability to parent and meet her children's needs, Dr. Craig testified that Carla's statements to her children that she needed to go to Iraq to kill Muslims would be a "very harmful thing to be communicating to children."
The link between Carla and Edgar's behavior and their children's delays was also supported by testimony that the children improved significantly once they were removed from the home and provided appropriate parenting. Most telling is the evidence describing the effects of parental visits on the children. Foster parents testified that the girls severely regressed after home visits with Carla and Edgar. The girls showed "more outbursts of crying, more outbursts of aggression." The children regressed to "not wanting to take a bath, screaming, just being terrified of the prospect of it." Even though Leah had been potty-trained, she would return from visits with her parents in diapers. On one occasion Leah returned wearing clothing that was soaked from her sternum to her knees with urine.
The trial court also heard testimony that the parents did not appropriately engage the children during visits. Tania Danielski, a foster parent and visit supervisor, testified that there was a disconnect between Carla and Edgar and their girls. Testimony was presented that Carla and Edgar frequently cut their visits short and that they would often not take on parenting roles during the visit.
The trial court heard testimony from several witnesses that supported its finding that the children are likely to continue to suffer serious emotional or physical harm if returned to Carla and Edgar's care. Dr. Levenson testified that Carla was not interacting appropriately with her children and that she is unable to understand that her behavior has negatively impacted her children. Nancy Karacand, an expert in mental health assessments, testified that neither Carla nor Edgar was able to parent the children effectively and that as long as Edgar was in denial over Carla's mental health issues, he would not be able to effectively intervene and compensate for the impact her problems had on the children. Karilee Pietz, an adoption specialist for OCS, testified that she was concerned that the children would be at risk if returned to the home given Carla's behavior and Edgar's inability to intervene. Pietz believed that the children were in jeopardy of continued neglect, and that when taking into account their special needs, she did not believe that Carla and Edgar would be able to successfully obtain services necessary for their development.
The superior court is entitled to rely on the documented history of Carla and Edgar's conduct as a predictor of their future behavior. Ample testimony at the termination trial supports the superior court's conclusion that the children would likely suffer serious emotional or physical harm if returned to the parents' custody.
Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 740 P.3d 896, 903 (Alaska 2003).
3. The superior court's findings were based upon appropriate expert testimony.
Whether evidence supports a superior court's determination that an Indian child is likely to be seriously harmed is a mixed question of law and fact. In order to terminate a parent's rights to an Indian child, the trial court must find, based on "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child." In reviewing ICWA's legislative history, we have observed:
See J.J. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 38 P.3d 7, 8 (Alaska 2001) ("The superior court's findings of fact will be upheld unless they are clearly erroneous, but whether the factual findings comport with the requirements of the Indian Child Welfare Act is a question of law that this court will review de novo.").
25 U.S.C. § 1912(f) (2000).
[T]he primary reason for requiring qualified expert testimony in ICWA termination proceedings was to prevent courts from basing their decisions solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect.[]
Thomas H. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 184 P.3d 9, 17 (Alaska 2008) (quoting L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 952-53 (Alaska 2000) (emphasis omitted)).
Carla and Edgar argue that the superior court's finding should be rejected because the qualified ICWA expert was a social worker supervisor who had little actual contact with the parents or their children. They rely on J.J. v. State, Department of Health Social Services, Division of Family Youth Services, where we found the opinion of a psychologist to be flawed because her review of the case was based mainly on records provided to her by social workers and not on direct interaction. Carla and Edgar argue that the same deficiency exists in this case. They contend that Karilee Pietz, a social worker supervisor, had little contact with the family and "did not form her opinion based on clinical interviews with the parents or children or a hands-on parenting assessment."
38 P.3d 7. Carla and Edgar also analogize this case to J.J. to argue that the parents met the requirements of their case plans. In J.J., the termination order was reversed because of evidence that the mother successfully completed a substance abuse treatment program and a subsequent period of sobriety. Id. at 9. The parents argue that, like in J.J., they were in compliance with the terms of their case plans. As discussed in the previous section, this argument is unavailing.
Id. at 9-10.
Carla and Edgar's arguments are unavailing. In J.J., we reversed a termination order because the State's expert witness had never met with the parents or child and based her testimony solely on documents from the family's OCS file, which was described as "significantly incomplete." In contrast, the superior court based its findings in this case not only on the testimony of the ICWA expert but also on the testimony of at least ten other experts who had numerous and ongoing contacts with Carla, Edgar, and their five children.
Id.
Carla and Edgar also fault the superior court's reliance on testimony from the Colorado-based Kempe Center, which they argue had no contact with the family or any input from the parents or tribes. But this argument also fails because while the trial court was "skeptical at the outset about a team of professionals sitting in Colorado and passing judgment on an Alaska Native family on the basis of paperwork provided by OCS," it concluded that the evidence "was corroborated in this courtroom by direct testimony from several witnesses based upon their firsthand knowledge." As we noted recently in Thomas H. v. State, Department of Health Social Services, Office of Children's Services, "ICWA requires that expert testimony support a decision to terminate parental rights, based upon the particular facts and issues of the case, but ICWA does not require that the experts' testimony provide the sole basis for the court's conclusion." Here, the expert testimony, coupled with the evidence on the record, satisfy ICWA and adequately support the superior court's decision that returning the children to their parents would likely result in serious emotional damage.
184 P.3d at 17 (internal quotation marks omitted).
V. CONCLUSION
Because the record contains sufficient evidence to support the superior court's findings that Carla and Edgar failed to remedy the conduct or conditions that placed their children at risk of harm and that the children are likely to continue to suffer serious emotional or physical harm if returned home, we AFFIRM the decision to terminate Carla and Edgar's parental rights.