Opinion
Supreme Court No. S-13304.
May 6, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Jack W. Smith, Judge, Superior Court No. 3AN-07-48/49 CN.
Appearances: Renee McFarland, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant. Michael G. Hotchkin, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, and Winfree, Justices. [Matthews, Justice, and Carpeneti, 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
A father challenges the trial court's decision to terminate his parental rights to two children. We conclude that the evidence supports the court's findings and the court correctly applied relevant law. We therefore affirm the termination of parental rights.
II. BACKGROUND
Claudio is the father of two children, born in 2005 and 2006. Both fall within the definition of an "Indian child" under the Indian Child Welfare Act of 1978 (ICWA). For most of their lives both children have been in the custody of the State of Alaska, Department of Health Social Services, Office of Children's Services (OCS). Given the nature of this appeal we need not detail OCS's history of involvement with this family, but after unsuccessful reunification efforts OCS petitioned to terminate Claudio's and Beatrice's parental rights.
We use pseudonyms here: Claudio is the father and Beatrice is the mother.
See 25 U.S.C. § 1903(4) (2000).
25 U.S.C. §§ 1901- 1963 (2000). ICWA establishes "minimum Federal standards for the removal of Indian children from their families and [for] the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902 (2000).
The trial court found that OCS met its burden of persuasion for the termination of parental rights. Beatrice has not appealed.
Under ICWA and relevant Alaska child in need of aid (CINA) statutes and rules, parental rights to an Indian child may be terminated at trial only if OCS shows:
(1) by clear and convincing evidence that:
(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));
(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i) — (ii)); and
(c) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (CINA Rule 18(c)(2)(B)); and
(2) beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child (CINA Rule 18(c)(4)); and
(3) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).
Claudio appeals three of the findings underlying the termination of his parental rights: (1) one of the children was subjected to conditions under AS 47.10.011(8)(B)(ii) (domestic violence) and both children were subjected to conduct or conditions under AS 47.10.011(11) (mental illness or deficiency); (2) he had not remedied the conduct or conditions; and (3) returning the children to him is likely to result in serious damage to the children.
III. STANDARD OF REVIEW
In a case involving the termination of parental rights we review a trial court's findings of fact for clear error. Findings are clearly erroneous only if, after reviewing the record in the light most favorable to the prevailing party, we are left with a "definite and firm conviction that a mistake has been made." When reviewing factual findings "we ordinarily will not overturn a trial court's finding based on conflicting evidence," and we will not re-weigh evidence "when the record provides clear support for the trial court's ruling." It "is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence."
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
Martin N., 79 P.3d at 53 (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000).
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).
Whether the trial court's factual findings satisfy the requirements of the CINA and ICWA statutes, including whether expert testimony sufficiently supported the trial court's determinations, is a question of law. We review questions of law de novo.
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000); D.H. v. State, Dep't of Health Soc. Servs., 929 P.2d 650, 654 n. 11 (Alaska 1996).
A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
IV. DISCUSSION
A. It Was Not Error To Find the Children Were in Need of Aid Under AS 47.10.011.
Alaska Statute 47.10.011(11) provides that a child is in need of aid if "the parent . . . has a mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places the child at substantial risk of physical harm or mental injury." The superior court noted credible testimony of mental health experts that Claudio had anger management issues, communication problems, narcissistic personality disorder, and intelligence commensurate with borderline mental retardation. The superior court acknowledged "that mental illness alone cannot be [the] basis for terminating a parent's rights," but found evidence of improper conduct linked to the mental illness that placed the children at risk of harm. Specifically the court found that Claudio's "anger management problem would re-manifest itself in a parenting situation, given . . . his refusal of any further counseling, his history of only intermittent counseling in the past, his history of domestic violence, and the anger management problems [Claudio] had in dealing with his social workers."
In Alyssa B. v. State, Department of Health Social Services, Division of Family Youth Services, we agreed that a mentally ill mother posed a substantial risk of harm to her children as defined by AS 47.10.011(11) when she: (1) refused to work with Family Youth Services; (2) failed to develop a bond with her child; and (3) refused psychological evaluations or treatment. In K.N. v. State, we agreed that the father's mental illness, combined with "past instances of extreme neglect," established a risk of harm to the child under AS 47.10.011(11). In A.H. v. State, Department of Health Social Services, we upheld a CINA adjudication under AS 47.10.011(11) because the father's mental-illness-related inability "to maintain steady housing, employment, financial solvency and social relationships" established a risk of future harm.
165 P.3d 605, 619 (Alaska 2007).
856 P.2d 468, 475 (Alaska 1993).
10 P.3d 1156, 1162 (Alaska 2000).
Here the superior court found, based on substantial evidence in the record, that Claudio: (1) had engaged in prior mental health treatment only intermittently; (2) was unwilling to engage in future mental health treatment due to his belief that he had no mental health problems; (3) had an extensive history of domestic violence; (4) was often unable to control his anger or act appropriately with OCS staff; and (5) had not meaningfully addressed his anger management problems. It was not error to find clear and convincing evidence that Claudio's conduct relating to his mental health diagnoses placed the children at substantial risk of physical harm or mental injury under AS 47.10.011(11). B. It Was Not Error To Find Claudio Did Not Remedy the Conduct that Rendered His Children in Need of Aid.
Because a child need only be found in need of aid in one respect to terminate parental rights so long as ICWA findings are made, we do not review the trial court's finding that one child was also in need of aid under AS 47.10.011(8)(B)(ii) due to exposure to domestic violence.
When determining whether the parent has remedied the condition that rendered a child in need of aid, "the court may consider any fact relating to the best interests of the child." Substantial evidence was presented at trial that Claudio had not remedied his mental health problems. Several social workers presented evidence that Claudio had not addressed his anger management or impulsivity issues, including: (1) angry, profane e-mails he sent to OCS; (2) his threats to "get crazy" during visits with OCS social workers; and (3) confrontational incidents he instigated at the visitation center. Despite testimony from two mental health professionals that he had extensive mental health issues and needed further treatment, Claudio testified that he did not "have any mental health issues" or need additional counseling. There also was evidence that Claudio refused to take medication prescribed for his mental health issues. It was not error to find clear and convincing evidence that Claudio had not remedied the conduct that resulted in his children being adjudicated in need of aid under AS 47.10.011(11).
AS 47.10.088(b).
C. It was Not Error To Find the Children Likely Would Suffer Serious Emotional or Physical Harm if Returned to Claudio.
Claudio argues that Dr. Rose, the psychologist who had evaluated Claudio and testified at trial, was not a "qualified expert" under ICWA because Dr. Rose did not base his opinion "on the particular facts and issues inherent in the case before him." We note, however, that Claudio does not question Dr. Rose's credentials or other qualifications as an expert witness. Claudio also argues that the evidence provided by Dr. Rose and others did not meet the high ICWA standard of proof beyond a reasonable doubt.
1. Dr. Rose met the ICWA criteria for expert testimony.
Dr. Rose's testimony occupies some seventy-five pages of the transcript. He had met with Claudio twice — once in 2001 to evaluate him for Social Security Disability eligibility and once in 2007 on a referral from OCS. Dr. Rose testified extensively about the diagnoses resulting from these evaluations and about his concerns that Claudio would be unable to parent his children due to his mental health diagnoses, history of domestic violence, and problems with anger management. Dr. Rose expressed a particular concern that the inappropriate behaviors Claudio demonstrated at the visitation center, along with his general history of angry and violent outbursts, could be damaging to the children's self-esteem and could put them at risk for other problems, even if the violent outbursts were not directed at the children. Dr. Rose also opined that Claudio's conduct toward Beatrice during their intermittent divorce proceedings was consistent with Claudio's "tendency to exploit vulnerable individuals." He provided examples of what Claudio's diagnoses would mean in terms of parenting, explaining that Claudio was likely to ignore a child's needs or focus too much on discipline.
Dr. Rose's testimony referenced Claudio's mental health diagnoses with particularity and explained how these would likely inhibit Claudio's ability to parent. This meets the criteria for expert witness testimony under ICWA. 2. It was not error to conclude that returning the children to Claudio's care would likely result in serious harm.
See C.J. v. State, Dep't of Health Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001) (providing that expert opinion in an ICWA matter should be more than generalizations and should be based on the particular facts and issues of the case).
In addition to Dr. Rose's testimony OCS presented other evidence supporting the likelihood of harm to the children should they be returned to Claudio's custody, including: (1) significant domestic violence between Claudio and Beatrice; (2) Claudio's manipulation of divorce proceedings with Beatrice; (3) Claudio's violence with Beatrice in front of one of the children, punishing that child inappropriately, and failing to seek medical treatment for the child during the brief period in which he and Beatrice had custody; (4) Claudio's threatening the children's foster family; (5) Claudio's rejecting the need for further mental health counseling, despite clear recommendations from mental health experts that he needs further treatment; (6) Claudio's testimony that he does not have any mental health issues, despite significant evidence to the contrary; (7) significant anger management problems that Claudio has not addressed in any meaningful way; (8) Claudio's inability to act appropriately with staff at the visitation center; (9) Claudio's angry, hostile, and even threatening interactions with OCS staff; (10) Claudio's diagnoses of fetal alcohol effects, features of posttraumatic stress disorder, narcissistic personality disorder, and cognitive abilities that fall within the range for borderline to mild mental retardation; and (11) the testimony of the evaluating psychologist that these diagnoses, combined with Claudio's history of inappropriate and impulsive conduct and his tendency to exploit vulnerable individuals, make Claudio unfit to parent.
The cumulative effect of this evidence makes clear it was not error for the trial court to find beyond a reasonable doubt that returning custody to Claudio would likely result in serious mental and physical harm to the children.
IV. CONCLUSION
We AFFIRM the trial court's termination of Claudio's parental rights.