Opinion
Supreme Court No. S-11538.
June 7, 2006.
Appeal from the Superior Court of the State of Alaska, Second Judicial District, Nome, Ben J. Esch, Judge, Superior Court Nos. 2NO-92-15/16 CP, 2NO-01-23/24 CP.
Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Mary Ann Lundquist, Assistant Attorney General, Fairbanks, and David A. 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.
I. INTRODUCTION
Darcy K. appeals the termination of her parental rights to two of her daughters, Tracy and Emma. Darcy challenges the superior court's findings that the Office of Children's Services made active efforts to prevent the breakup of her family and that termination of her rights was in Tracy's and Emma's best interests. We affirm the superior court's decision to terminate Darcy's parental rights to Tracy and Emma because OCS's efforts to help Darcy were active and there is evidence that Tracy's and Emma's best interests are served by their being freed for adoption, even though their prospects for adoption are unclear.
We use pseudonyms for the individual family members and the foster family involved in this case.
II. FACTS AND PROCEEDINGS
Darcy is the biological mother of Tracy and Emma, who are Alaska Natives. Tracy was born in the spring of 1992 and Emma was born in late 1993. Tracy has been diagnosed with Fetal Alcohol Effect and Emma with possible Fetal Alcohol Effect; both girls suffer from Posttraumatic Stress Syndrome, and both are severely emotionally disturbed to the point that they will always need supportive services. Tracy has been in foster care or hospitalized since April 1999; Emma lived with Darcy for about five weeks in 2002, but otherwise has been in foster care, hospitalized, or with other relatives since April 1999. OCS has been involved with Darcy and her family since 1991, when her elder children were removed from her home due to neglect. Darcy has moved frequently over the years, living alternately in Anchorage, Unalakleet, Nome, and Little Diomede.
OCS petitioned the court to adjudicate Tracy and Emma children in need of aid in September 2001. Tracy was then living in Nome and Emma in Little Diomede, both with relatives. The petition alleged that the girls' father, Arthur, sexually abused Tracy and neglected Emma. The petition also alleged that Darcy's substance abuse, involvement with abusive men, and poor care for the girls warranted a CINA adjudication. Tracy and Emma were adjudicated children in need of aid in December 2001 based on their father's conduct; OCS did not prove the allegations against Darcy. Nevertheless, Darcy did not oppose state custody.
The petition included Tracy, Emma, and their brothers, David (born in 1990) and Adam (born in 1996). David and Adam were also included in OCS's March 2003 petition to declare the children children in need of aid as a result of Darcy's conduct, and to terminate both Darcy's and Arthur's parental rights. David's and Adam's treatment is not at issue in this appeal, so we do not address it.
In January 2002 Dr. Linda White, a psychiatrist, conducted an evaluation of Darcy in Nome. She diagnosed alcohol dependence, mood disorder not otherwise specified, and wanted to rule out posttraumatic stress disorder. Dr. White also identified borderline personality traits. Dr. White prescribed psychotropic medication for Darcy; Darcy attended counseling sessions with Dr. White when she "[felt] like talking to her."
In February 2002 OCS social workers reported that Darcy was then engaged in recommended treatment while staying at the Bering Sea Women's Shelter. Darcy participated in the Behavioral Health Service day treatment services for substance abuse and attended one-on-one counseling. But after some time, her counselors began to question her "cognitive abilities and her psychological state and their [e]ffect on her ability to comprehend and fully participate in treatment."
During her stay at the shelter, Darcy had trouble caring for Emma and Adam, who had been placed with her in late February. When Emma had a tantrum over some stickers, Darcy yelled "Go ahead and make an ass of yourself. Holler as loud as you can, I don't care," and stated, "I should commit suicide by taking pills." Darcy later asked shelter staff for her pills and when the staff member opened the bottle Darcy grabbed for it, saying "Don't worry about it, I'm going to O.D." Earlier that day, Darcy had yelled at Emma's school principal.
An OCS social worker referred Darcy to Dr. Paul Craig, a clinical neuropsychologist in Anchorage, on April 16, 2002. The social worker wanted Dr. Craig to evaluate Darcy's neuropsychological function to determine if it had been impaired by her substance abuse. They originally scheduled the evaluation for Monday, May 13, 2002 in Anchorage, but, after OCS flew her in from Nome, Darcy spent the weekend drinking and forgot her appointment. Darcy also missed her scheduled visit with Tracy at this time because she was drinking.
OCS arranged for Dr. Michael Rose, an Anchorage clinical psychologist, to evaluate Darcy on May 15, 2002 to "address [Darcy's] psychological status and parenting competency." Dr. Rose first evaluated Darcy in 1992. Dr. Rose noted a decline in Darcy's intellectual functioning since he first saw her and stated that, if she had attended her initially scheduled consultation with Dr. Craig, Dr. Craig could have ruled out "Substance Induced Persisting Dementia." Dr. Rose quoted his evaluation results from May 2000 as still applicable to Darcy two years later: Darcy would be unlikely to abstain from alcohol given her history of substance abuse, and had been given repeated opportunities to participate in treatment but had not been able to maintain herself without being strictly monitored. Dr. Rose observed that "[w]hile [Darcy] desires the opportunity to reunify with her children, her repeated failures and relapses are a strong predictor that she will likely fail again, and such repeated failures would certainly place the children's future in jeopardy."
Dr. Craig was finally able to evaluate Darcy in November 2002. OCS paid to fly Darcy to Anchorage from Diomede and put her up in a hotel for the evaluation; an OCS social worker flew with Darcy to Anchorage and escorted her to her appointment. Dr. Craig was able to determine that Darcy did not have alcohol-induced dementia. In the written report he produced from the evaluation, he made the following recommendations for Darcy:
1. [Darcy] should continue to be a recipient of mental health services. Her psychiatric problems are thought to be fairly significant and will undoubtedly require long-term management. This would include psychotherapeutic intervention as well as psychopharmacologic treatment. The patient is not a good candidate for [insight]-oriented talk therapy. However, she may benefit from learning some very concrete strategies to deal with her emotions more effectively. A very concrete and structured program of cognitive behavioral psychotherapy may help her in this respect.
2. Clearly, [Darcy] needs to abstain from all intoxicants including alcohol, marijuana, and any other illicit substances she may intermittently abuse. She has been through chemical dependency treatment three times but does not seem to have benefitted from this treatment. If substance abuse remains an ongoing problem for [Darcy], she may benefit from placement in a long-term treatment facility such as Nugent's Ranch or an equivalent residential program.
3. . . . If this patient is to learn basic parenting skills, she would need to maintain long-term sobriety. She would need to have intensive one-on-one training with just one child present in the beginning. . . . [S]he could learn some new skills. However, it would be extraordinarily challenging for her to do so given her cognitive limitations, her language limitations, and her self-reported history.
OCS social workers documented Dr. Craig's evaluation of Darcy in their Updated Report for Permanency Hearing in February 2003. The social workers also reported that Darcy was living in Little Diomede, where there were no parenting skills classes available and counseling was limited to telephone calls to a clinician. Darcy chose to remain in Little Diomede despite these limitations. The social workers reported that, before Darcy had returned to Little Diomede in November 2002, she had been drinking in Nome; once back in Little Diomede, she faced importation of alcohol charges arising from her attempt to bring alcohol to Diomede in July 2002. According to the February 2003 report for the permanency hearing, Tracy was at that time living in the Alaska Children's Services Home Based Foster Home in Anchorage where she was receiving intensive counseling and clinical treatment, and ongoing medication management. Residing in Anchorage, Tracy could also visit her sister Emma, who was then living at the North Star Residential Hospital due to her aggressive behavioral issues.
OCS petitioned for a determination that Tracy and Emma were children in need of aid as to Darcy, and to terminate Darcy's and Arthur's parental rights, in March 2003. OCS filed the petition because Tracy and Emma had been in state custody for more than fifteen out of the previous twenty-two months and Darcy had made little or no effort to remedy her conduct by the time of the permanency hearing. The petition alleged that the children were in need of aid under AS 47.10.011(10) and (11) as a result of Darcy's conduct; these sections cover children put at risk by their parents' substance abuse (subsection 10) and mental illness, serious emotional disturbance, or mental deficiency (subsection 11).
The Superior Court's Order Terminating Darcy's Parental Rights
Superior Court Judge Ben Esch held a trial on the termination of Darcy's parental rights as to Tracy and Emma in Nome in December 2003. At trial, Judge Esch heard testimony from Dr. Craig, Dr. Rose, and Dr. Michael Robertson, a child psychiatrist who treated both Emma and Tracy. Judge Esch also heard testimony from James Johnson (Tracy's and Emma's current foster father); Eeris Setten (Tracy's and Emma's care coordinator at Denali Family Services); Lori Betlewski (Tracy's clinician at Denali Family Services); Sue Ellen May (Emma's clinician at Denali Family Services); Carol Ann Brice (an expert in early childhood development, parenting skills, attachment and bonding, and child abuse and neglect who observed Darcy interacting in a home setting with Emma); and Peggy Sherman-Luce (an OCS social worker who took over Darcy's family's case in December 2002). Darcy also testified at the trial. The court also received written reports from several mental health professionals who did not testify at trial.
Arthur relinquished his parental rights before the termination trial.
The court issued its Findings of Fact and Conclusions of Law and Order Terminating Parental Rights in June 2004. The court found that Tracy was severely emotionally disturbed and that she had been hospitalized three times for emotional problems since she entered foster case in April 1999. The court found that Tracy had been diagnosed with posttraumatic stress disorder and that she had been given a provisional diagnosis of bipolar affective disorder and had borderline intelligence and suffered from fetal alcohol effect. The court found that Tracy took a number of medications to stabilize her mood swings. The court further found that Tracy would always need special services, and that she was currently receiving the services she needed through Denali Family Services and her foster family, the Johnsons, who live in Anchorage. The court found that these services included weekly individual therapy, "shadow" assistance during school, and counseling in individual skills development, but that, even with this level of services, Tracy had still exhibited aggression and oppositional behavior. The court cited James Johnson's (Tracy's foster father's) testimony that Tracy has a strong personality, that she is prone to outbursts if she does not get her way, that she had caused physical injury to both foster parents, and that her behavior in public was problematic. The court found that Tracy had maintained contact with her brothers but not her mother during her six months in the Johnson foster home.
The court found that Emma had been diagnosed with posttraumatic stress disorder, borderline mental retardation, and possibly fetal alcohol effect. The court also found that Emma was more emotionally damaged than Tracy, had no coping skills, and was subject to dissociative reactions during which Emma became assaultive, had no memory of her actions, had no control, and was at risk of self-harm. The court found that Emma was taking psychotropic medications and receiving therapy through the Johnson foster home and Denali Family Services. The court found that Emma had adapted well to living with Tracy and was dependent on her.
As to Darcy, the court found that Darcy's mental state had consistently deteriorated since Dr. Rose's first evaluation of Darcy in 1992. The court found that Darcy suffered from significant intellectual deficits that affected her ability to parent children, and that her borderline intellectual functioning would not improve. The court also found that Darcy suffered from alcohol abuse and was probably alcohol dependent. The court catalogued Darcy's history of four failed attempts at substance abuse treatment, and cited Darcy's unwillingness or inability to maintain sobriety or follow a mental health medication plan as impairing her ability to parent. The court also cited the observations of Carol Brice, the child development consultant who observed Darcy with her children, that Darcy lacked a relationship with her children and that her inconsistency was damaging to the children. The court found that Darcy's continued drinking, in combination with her coexisting mental health problems, placed the children at substantial risk of continued emotional injury and future physical harm if they were returned to her custody.
In regard to OCS's efforts to help Darcy's family, the court found that an OCS caseworker sent applications to three substance abuse programs to Darcy in Diomede, but that Darcy did not follow up on these applications. The court also found that OCS had arranged mental health evaluations with Dr. Rose and Dr. Craig for Darcy, but that Darcy had not continued her mental health treatment with Dr. White, the Nome psychiatrist. The court found that OCS had provided extensive treatment to the children and enabled Darcy to visit her children and to stay in telephone contact by giving Darcy and the children phone cards.
The court concluded that OCS had proved by a preponderance of the evidence that active efforts had been made to prevent the breakup of Darcy's family, and that those efforts were unsuccessful because of Darcy's conduct. The court also concluded that it was in the best interests of the children to terminate Darcy's parental rights. Based on these findings and conclusions, the court terminated Darcy's parental rights.
Darcy appealed the superior court's termination order. After she filed her opening brief, the parties stipulated to remand the case to the superior court to allow the court to hear additional evidence concerning Tracy's and Emma's best interests. After several hearings, the parties did not submit any new evidence regarding the best interests of the children. The superior court therefore found no reason to reconsider its termination decision or supplement the existing findings and conclusions; it reaffirmed its original termination order. The appeal was reinstated and briefing continued.
III. DISCUSSION
A. Standard of Review
We review the superior court's factual findings for clear error. Factual findings are clearly erroneous if our 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 has been made. Whether the superior court's factual findings satisfy the requirements of the CINA statutes and ICWA is a question of law, which we review de novo.
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004).
Id.
Cf. E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002) (whether expert testimony satisfied ICWA was question of law; legal conclusions reviewed de novo).
B. OCS Made Active Efforts To Prevent the Breakup of Darcy's Family.
Darcy argues that OCS failed to make active efforts by not implementing the recommendations of Dr. Craig, the neuropsychologist who had evaluated her in response to an OCS social worker's concern that Darcy's cognitive abilities had been affected by her history of substance abuse. Before a court can terminate parental rights in the case of an Indian child, OCS must demonstrate by a preponderance of the evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." Active efforts occur "where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own." A parent's motivation or prognosis before remedial efforts have commenced cannot absolve the state of its duty to provide active efforts. We review OCS's efforts on a case-by-case basis; "no pat formula exists for distinguishing between active and passive efforts."
CINA Rule 18(c)(2)(B); 25 U.S.C. § 1912(d).
A.A. v. State, Div. of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999).
Id. at 262.
Id. at 261.
OCS referred Darcy to a neuropsychological evaluation in response to concerns about Darcy's cognitive abilities. An OCS social worker called Dr. Craig's office on April 16, 2002, and stated that Darcy had a substance abuse history and needed a cognitive evaluation in the context of that history. OCS initially scheduled an appointment for Darcy in May 2002, and flew Darcy to Anchorage from Nome, but Darcy did not attend because she forgot her Monday appointment after drinking the weekend before.
When Dr. Craig was finally able to examine Darcy, six months after his initial attempt, he concluded that she would not benefit from insight-oriented talk therapy and needed more concrete assistance in the form of behavioral modeling therapy, in which she could observe desired behaviors and learn to emulate them. In his report, Dr. Craig stated that Darcy should continue to receive mental health services, both pharmacological and psychotherapeutic, finding that Darcy's psychological problems "will undoubtedly require long-term management." It was in the context of this recommendation that Dr. Craig made his observation that Darcy would likely not benefit from talk therapy. But Dr. Craig went on to stress that Darcy had to abstain from all intoxicants and that "[i]f [Darcy] is to learn basic parenting skills, she would need to maintain long-term sobriety." He stated that Darcy could learn new skills, but would need heavily supervised training with just one child at first, and that, even with help twenty-four hours a day for several months in a row, Darcy would likely be unable to establish new repertoires of behavior as a parent due to her neuropsychological limitations. Dr. Craig expounded his report at trial. He testified that, for Darcy, "[r]equirement number one is sobriety, and then requirement number two is just a lot of intensive training on the part of somebody . . . a parenting skills trainer who's very behaviorally oriented and can really work with her intensively."
After Dr. Craig's evaluation, OCS embarked on a course of active aid to Darcy: it continued to try to address her substance abuse problem in light of Dr. Craig's opinion that Darcy's mental health would require long-term care, but that her immediate sobriety was also very important. A social worker sent three substance abuse treatment program applications to Darcy in Diomede in May 2003, including one for the Nugent Ranch in-house program recommended by Dr. Craig. The social worker also sent Darcy letters asking her to come into Nome to review her case plan. The social worker faxed Darcy's case plan to the tribe of Diomede; a tribal representative took a copy of the case plan to Darcy but Darcy did not sign and return it. The social worker testified that Darcy moved around frequently, did not leave contact information, and did not check in with OCS. So while the OCS social worker actively tried to engage Darcy in the substance abuse treatment she needed, Darcy resisted or ignored these efforts. In deciding whether OCS has met its burden, the superior court can take into account a parent's lack of willingness to participate in remedial efforts after the state has made active efforts.
In re J.W., 921 P.2d 604, 609 (Alaska 1996).
Darcy testified at the termination trial that she did not need help with her drinking, and that she could quit on her own. OCS has been offering Darcy substance abuse treatment since 1991, when OCS took custody of her older children due to neglect and domestic violence issues. Darcy first participated in chemical dependency treatment in 1991. She completed the "Reflections" program successfully. Several days after completing "Reflections," she enrolled in the Clitheroe Center outpatient program but was discharged for being non-compliant and not participating in aftercare. In 1993 Darcy successfully completed the Dena A. Coy program. In the spring of 2000, OCS brought Darcy to Anchorage and put her on a waiting list to enter substance abuse treatment. She eventually entered the Alaska Native Alcoholism Recovery Center program in April 2000. Darcy also received substance abuse services at the Bering Sea Women's Shelter beginning in December 2001. Darcy moved to Little Diomede in July 2002 and isolated herself in an area with limited resources to assist her: in October 2002 an OCS social worker reported that Darcy could only attend AA via teleconference "when the telephone is working and available to the community." Given this long history of efforts by OCS to help Darcy with her drinking problem, and Darcy's choices that have not made sobriety her priority, there was substantial evidence to support the superior court's finding that OCS's efforts were active.
The whole of the efforts made by OCS demonstrate that the agency attempted to actively engage Darcy in treatment. The superior court did not err in finding that OCS had made these efforts, and we hold that they satisfy OCS's duty under the CINA statutes and ICWA.
C. Termination of Darcy's Parental Rights Serves Tracy's and Emma's Best Interests.
Darcy also challenges the termination of her parental rights by arguing that the termination is not in Tracy's and Emma's best interests because their prospects for adoption are unclear and, according to Darcy, "[n]o evidence was presented at trial about what effect termination of the parent-child bond would have on the children." Under AS 47.10.088(a), a court may terminate parental rights in order to free a child for adoption or other permanent placement. When deciding whether to terminate parental rights, the court "shall consider the best interests of the child." It is the best interest of the child, not the parent, that is paramount.
AS 47.10.088(c); accord CINA Rule 18(c)(2)(C) ("Before the court may terminate parental rights, the Department must prove by a preponderance of the evidence that termination of parental rights is in the best interests of the child.").
A.H. v. State, Dep't of Health Soc. Servs., 10 P.3d 1156, 1166 (Alaska 2000).
Darcy argues that termination of her parental rights is not in Tracy's and Emma's best interests because their ages and their emotional and behavioral problems make them less likely to be adopted. But we have recognized that, in some situations, termination of a parent's rights can be in a child's best interest even where that child has no concrete adoption prospects. Several experts in this case stressed the importance of a structured, stable environment for Tracy's and Emma's mental health. Dr. Rose stated in his evaluation that Emma "needs continued involvement in a home that is stable and secure with parent figures that are consistent, effective and loving as parents." Dr. Robertson, a child psychiatrist who treated both the girls on an ongoing basis, testified that Tracy's mood was stable at the Johnson foster home because the "triggers and stressors" in her life had been greatly reduced by putting Tracy in the same home as Emma and surrounding them with community services. He believed that Tracy was especially vulnerable and would "forever need a specialized supportive system." Dr. Robertson also testified that Emma "does not do transitions well."
Tracy was born in May 1992; Emma was born in November 1993.
E.g., Carl N. v. State, Dep't of Health Soc. Servs., 102 P.3d 932, 937 (Alaska 2004) (terminating a father's rights to his emotionally troubled nine-year-old son, despite the child having no immediate adoptive prospects, and acknowledging that a child can benefit most from the stability that results from resolving the parental rights issue, even if the result is that the child remains in foster care).
At the time of the termination trial, Tracy and Emma were together in a therapeutic foster home with the Johnson family in Anchorage. The Johnson family is trained to care for children with emotional problems and works with Denali Family Services to ensure that both girls get proper services. At the time of the trial, Tracy had been in the Johnson home for more than six months. Emma had been in the Johnson home for approximately one month. Mr. Johnson testified that the family had gone through a "honeymoon" period in the beginning, followed by a very difficult period, but that now he and his wife had learned to read Tracy's and Emma's emotions and could better help the girls deal with their feelings. When asked, "has there been any discussion about you [Johnson] taking the children permanently?", Mr. Johnson answered that the subject "has been mentioned" but was not "on the front burner." Johnson never stated that he would not adopt Tracy and Emma, and expressed positive feelings about his experience with them. He also stated that he did not know how long the girls would remain in his home, but that he thought it had "something to do with adoptive placement." So while Tracy and Emma do not have a confirmed adoption prospect, their current foster parents, who have been successful in caring for them, have not ruled out that option.
Darcy argues further that "[n]o evidence was presented at trial about what effect termination of the parent-child bond would have on the children." But she ignores the testimony the superior court heard from several mental health professionals about how, in this case, the girls' special needs trump the preservation of the parent-child bond.
Carol Brice, an expert in early child development, child abuse and neglect, and bonding and attachment, testified about the home visit she conducted with Darcy, Emma, David, and Adam in Nome in April 2002. Brice testified that she was struck by the "total lack of any signs of a relationship at all between any of the children and their mother or any of the children with each other or from their mother to them." She observed no overt affection or greeting among the family members, and commented that, even if the children did not display such affection, the parent should. Brice noted that when Emma asked Darcy to read to her, Darcy agreed but had Emma stand next to her chair rather than bringing Emma close to her, or placing Emma in her lap. She also noted that Darcy did not comfort Emma when she was upset, but instead became angry with her. In addition to Brice's observations, the superior court received a May 2002 report from a social worker who was a lay witness, that described Darcy's attachment to Emma as "weak."
While Tracy was absent the day Carol Brice conducted her bonding assessment, there is evidence suggesting that Tracy and Darcy do not share a close relationship. Tracy spent the first year and a half of her life in a foster home, and has not lived with her mother since she was six years old. In 2001 Tracy was diagnosed with reactive attachment disorder. Darcy was reportedly involved in Tracy's therapy around March 2001, but it is unclear whether Darcy has participated in her daughter's care since then.
In addition to the hearing evidence that Darcy and the girls did not share a strong bond, the superior court heard from Dr. Robertson, who testified at the termination trial that he believed the parent-child bond was "sacred at many levels," but that he believed in this case it was time for Tracy and Emma to "move on." Dr. Robertson stated:
Now, unfortunately, the history denotes that mom has not been able to maintain sobriety for long periods of time. This is very — this would be very confusing and more harmful to the children, and this time, if — if mom has relapsed again, and that is the information I've been provided, but I'm not there, I'm not the mother's doctor, I'm kind of at the point this was the last straw. The children can't take any more pain.
They want to love their mother or the idea of their mother. If their mother was clean and sober, I — I would — I would doubt we could ever reunite, but I would not be opposed to having contact down the road under supervised circumstances, but if mother is not able to stay clean and sober, I think it is probably best for the children to move on.
Dr. Robertson then testified that the girls' current placements were the most therapeutic, healthy, and loving environment Tracy and Emma had ever known, and that it was not in their best interests to disrupt that by giving Darcy more chances at caring for them.
The evidence supports the superior court's conclusion that freeing Tracy and Emma for adoption or some other permanent placement will better serve their interests than being in the chaotic environment their mother provides. As Dr. Robertson observed, Tracy and Emma need closure with their mother and people who can adequately care for them. Tracy and Emma need a parent who can consistently set limits and recognize their emotional needs. Ample evidence supports the superior court's finding that terminating Darcy's rights was in the girls' best interests.
IV. CONCLUSION
We AFFIRM the superior court's judgment terminating Darcy K.'s parental rights to Tracy and Emma.