Opinion
Supreme Court No. S-13083.
January 28, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-06-301/302 CN.
Jill C. Wittenbrader, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, Juneau, for Appellee. Robert R. Polley, Kodiak, for Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Winfree, Justices. [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 mother appeals the termination of her parental rights to her two Alaska Native children. Because the trial court's findings of fact are not clearly erroneous and the trial court properly applied the law to those findings, we affirm.
II. FACTS AND PROCEEDINGS
Kim's first child, Jayne, was born in 1991; Jayne's father lives in Mexico and has not actively parented Jayne. Kim later became involved with another man and had a second child, Kent, born in 1997. Kim's relationship with Kent's father was filled with alcohol abuse and domestic violence. When that relationship ended, legal custody of Kent was given to his father. During the custody dispute Kim attempted suicide and received mental health treatment.
Pseudonyms are used for all family members.
In 2004 the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS), took custody of Kent due to his father's conduct. OCS developed a case plan for Kim, recommending participation in substance abuse assessment and treatment and in domestic violence parenting classes. Kim was assessed as alcohol-dependent, but she did not comply with a recommendation for an intensive outpatient program. Kim completed another assessment in February 2005; alcohol abuse was again diagnosed, and outpatient treatment was again recommended. The assessor reported that Kim seemed "determined to avoid treatment." Kim's contact with OCS then became sporadic, and OCS ultimately returned Kent to his father's custody.
Sometime before or during the proceedings involving Kent, Kim became involved with Ward, and they had two children: Wesley (born in August 2004) and Kevin (born in July 2005). At some point Kim and Ward married. Kim and Ward's relationship also involved alcohol abuse and domestic violence. Ward often would leave the family for lengthy periods of binge drinking. When Ward left the family on a binge in August 2006, Kim became depressed and began drinking heavily.
On August 17, 2006, OCS took emergency custody of Wesley and Kevin after Kim dialed 911 and said she wanted to kill the children because she had "no support from their dad." Police officers responding to the call heard Kim yelling "I am going to kill you" or "I'll kill you." The officers broke down the door and found Kim holding a large butcher knife, which she lowered on their approach. The officers found one-year-old Kevin lying on the bed and found two-year-old Wesley hiding behind some furniture. The officers found a copy of a restraining order Kim had obtained against Ward, on which Kim had written that she had killed the children.
Wesley and Kevin are Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901- 23, 1951 (2000). See § 1903(3), (4).
The superior court ordered Wesley and Kevin placed in temporary foster care. OCS's initial case plan, effective September 20, 2006, listed reunification of Wesley and Kevin with Kim as its primary goal.
Although not the subject of the termination proceeding, Jayne was also taken into OCS custody and placed with her grandmother for a time.
Kim was convicted of assault in the third degree. She was given a twenty-one month suspended sentence and four years of probation and served seventy-five days in jail. While in jail, Kim expressed a desire to relinquish her parental rights. But after reconciling with Ward, Kim changed her mind and sought reunification with Wesley and Kevin. OCS arranged supervised visits for Kim and the children beginning in late November 2006.
In early February 2007 Kim and Ward stipulated that Wesley and Kevin were children in need of aid. Later that month Ward died of complications from alcohol withdrawal, and in early May 2007 Kim again decided to relinquish her parental rights to Wesley and Kevin. Kim cancelled her visitations with the children and asked Wesley and Kevin's foster parents to adopt them.
A permanency hearing was held on August 8, 2007. OCS recommended adoption for Wesley and Kevin. The court found Kim had not made substantial progress and accepted the permanency recommendation for adoption. The trial for termination of parental rights was held on March 27 and 28, and April 15, 2008.
OCS's permanency recommendation contains a reported statement by Kim that she had again changed her mind about relinquishing her parental rights and was resisting adoption "because of [the social] worker and the `games she is playing.'" OCS suggests here that Kim changed her mind because OCS — having received reports that Kim was drinking — asked Kim to move out of her mother's home, where she might be a danger to the young children residing there, or submit to more frequent urinalysis. Kim suggests here that her relinquishment decision was ill-considered because she was grieving over the death of Wesley and Kevin's father. The trial court found that Kim "withdrew her offer to the foster family due to personal problems with the social worker."
In April 2008 the trial court terminated Kim's parental rights. Kim appeals, arguing that the trial court erred in reaching each of the following four findings necessary for the termination of her parental rights: (1) that Wesley and Kevin were children in need of aid; (2) that Kim had failed to remedy within a reasonable time the conduct or conditions that placed Wesley and Kevin at risk of harm; (3) that returning Wesley and Kevin to Kim's care would likely result in serious emotional damage to the children; and (4) that Wesley and Kevin's best interests would be served by termination of Kim's parental rights.
The trial court also made the other findings necessary to support an order of termination of parental rights, including a finding by clear and convincing evidence that OCS "made active and reasonable efforts to provide remedial services." These findings are not challenged by Kim on appeal.
III. STANDARD OF REVIEW
When reviewing a termination of parental rights, we apply a "clear error" standard to the trial court's factual findings. We will overturn the trial court's factual findings only if "a review of the entire record in the light most favorable to the party prevailing below leaves us `with a definite and firm conviction that a mistake has been made.' " Whether the trial court's factual findings satisfy the requirements of the Child in Need of Aid (CINA) and ICWA statutes, including whether expert testimony sufficiently supported the trial court's determinations, is a question of law. We r e vi e w questions of law de novo.
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 949 (Alaska 2000).
Brynna B. v. State, Dep't of Health Soc. 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)).
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
L.G., 14 P.3d at 950; D.H. v. State Dep't of Family Youth 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. Statutory Background
To terminate parental rights, OCS must show by clear and convincing evidence that: (1) the children have been subjected to conduct or conditions enumerated in AS 47.10.011; and (2) the parent has not within a reasonable time remedied the conduct or conditions that placed the child at substantial risk of harm, so that the child would be "at substantial risk of physical or mental injury" if returned to the parent. The court must then find by a preponderance of the evidence that the child's best interests would be served by termination of parental rights.
CINA Rule 18(c)(A).
CINA Rule 18(c)(1)(A)(i) — (ii). In making this finding, the court may consider any fact relating to best interests of the child. AS 47.10.088(b).
AS 47.10.082; AS 47.10.088(c); CINA Rule 18(c)(3).
In the case of an Indian child, OCS must also prove that: (1) beyond a reasonable doubt, "continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child"; and (2) "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." B. Wesley and Kevin
25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
25 U.S.C. § 1912(d); CINA Rule 18(c)(2)(B); AS 47.10.086(a).
Following the August 2006 incident and continuing to the time of the termination trial, Wesley and Kevin exhibited aggressive behaviors and signs of emotional trauma. Both children "have displayed an extreme reaction to knives and scissors," demonstrating "deep mental and emotional trauma." During visits with Kim, both boys were "subdued and [did] not show excitement." The superior court summarized the testimony of the social worker, whom the court expressly found to be credible, as follows: "both children were very cold to their mother and distrusting. They did not refer to her as `mom' or identify her as a care provider. This behavior . . . evidences the children's perception of their mother as a threat."
Wesley has been diagnosed with "posttraumatic stress disorder, acute," and displays a range of behaviors described as "[r]eacting to triggers of past trauma." These include aggressive acting out, speech regressions, developmental delays, and crying and screaming at night. Wesley experienced "night terrors" and fear of the bathtub. Wesley's foster parents reported other disturbing behavior, such as Wesley smearing feces in his bedroom and placing Kevin in an oven.
OCS's November 13, 2007, petition for termination, when Wesley was approximately three years and three months old, notes that Wesley's expressive language tested at a developmental level of ten to thirteen months, "interfering with his ability to communicate his wants and needs." OCS also noted that Wesley's dental hygiene had been severely neglected before he was taken into custody. He had "two large holes in his front teeth" and required four caps and ten fillings.
Kevin was approximately two years and four months old at the time of OCS's petition. His tests revealed "significant developmental delays," including "severe language delays" and expressive language scoring at a seven-to-nine-month level. Kevin's receptive language development tested at a twelve-to-fourteen-month level, and his cognitive development tested at a level of eleven months. Kevin also required extensive dental fillings after being taken into OCS custody.
C. The Trial Court Did Not Err in Finding that Wesley and Kevin Were Children in Need of Aid.
A court may terminate parental rights if it finds by clear and convincing evidence that a child is a child in need of aid, having been subjected to conduct or conditions enumerated under AS 47.10.011. The trial court found by clear and convincing evidence that Wesley and Kevin were children in need of aid on four separate grounds: under AS 47.10.011(8)(A) and (B)(ii), under AS 47.10.011(10), and under AS 47.10.011(11).
CINA Rule 18(c)(1)(A).
AS 47.10.011(8) provides that a court may find a child is in need of aid if "conduct by or conditions created by the parent . . . have (A) resulted in mental injury to the child; or (B) placed the child at substantial risk of mental injury as a result of . . . (ii) exposure to conduct by a household member . . . against another household member that is a crime under AS 11.41.100 — 11.41.220."
AS 47.10.011(10) provides that a court may find a child is in need of aid if the parent's "ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant . . . result[ing] in a substantial risk of harm to the child."
AS 47.10.011(11) provides that a court may find a child is in need of aid if "the parent . . . has a mental illness, [or] serious emotional disturbance . . . of a nature and duration that places the child at substantial risk of physical harm or mental injury."
The trial court found Wesley and Kevin were children in need of aid under AS 47.10.011(8) because "[c]onduct by and conditions created by [Kim] have resulted in mental injury to the children [and] . . . have placed the children at substantial risk of mental injury as a result of exposure to conduct by a household member that is a crime" under AS 11.41.220. The trial court's finding is well-supported by the extreme nature of the August 2006 incident and the children's strong reactions, including Wesley's diagnosis of acute posttraumatic stress disorder. Given the evidence in the record, the trial court's conclusion that Wesley and Kevin were children in need of aid is not clearly erroneous. Because we find the trial court's conclusion under AS 47.10.011(8)(A) and (B)(ii) was not clearly erroneous, we do not address Kim's challenge to the findings under subsections (10) and (11); a finding of one condition under AS 47.10.011 is sufficient to satisfy this prong of the termination proceeding. D. The Trial Court Did Not Err in Finding that Kim Failed To Remedy Her Conduct Within a Reasonable Time.
Kim was convicted of assault under AS 11.41.220(a)(1)(A).
The trial court noted that Kim was intoxicated at the time of the August 2006 incident and had a history of alcohol abuse in finding that her ability to parent had been impaired by "addictive and habitual use of an intoxicant" resulting in substantial risk of harm to her children.
The trial court also found that Kim had a "serious emotional disturbance." This finding was supported by psychological assessments, one by Dr. Rose in July 2007, and a second by Dr. Truitt in March 2008. Dr. Rose diagnosed Kim as suffering from "Major Depressive Disorder, Personality Disorder and Psychosocial Stressors." Dr. Truitt confirmed that Kim suffered from "Major Depressive Disorder, [and] Personality Disorder with schizotypal and avoidant traits." The court noted that Kim had completed treatment for a similar diagnosis and received a positive report in 2002, before her current troubles, and thus concluded her pattern of "regression into abusive, violent relationships and emotionally abusive behavior" was likely to repeat.
Alyssa B. v. State, Dep't of Health Soc. Servs., 165 P.3d 605, 618 (Alaska 2007); Rick P. v. State, OCS, 109 P.3d 950, 956 (Alaska 2005). We do note that Kim's stipulation of February 8, 2007 that the children were in need of aid was based on AS 47.10.011(10) and (11).
The trial court found by clear and convincing evidence that Kim "failed, within a reasonable time, to remedy the conduct or conditions that place[d] the children at substantial risk of physical or mental injury." Kim argues that this finding is erroneous because she complied with her case plan requirements, including completion of substance abuse treatment and sobriety. Kim argues that she was not given "a reasonable amount of time" to remedy her conduct because OCS created an adoption plan for Wesley and Kevin only six months after Kim's first case plan.
This is a valid concern, but Kim also acknowledges that OCS made the adoption plan early because of Kim's initial efforts to relinquish her parental rights and her May 2007 request that Wesley and Kevin's foster parents adopt the boys. We conclude that the timing of the permanency plan for adoption was reasonable given: (1) Kim's early attempts at relinquishment; (2) Kim's changing positions, which are consistent with her emotional disturbances; and (3) the severity of the August 2006 incident and the resulting damage to Wesley and Kevin.
In considering whether Kim remedied her conduct within a reasonable time, we, like the trial court, may consider all facts relevant to the best interests of the children. This means that the "reasonable time" for a parent to remedy harmful conduct may well depend heavily on the children's ages and needs. Wesley and Kevin were two and one, respectively, when removed from Kim's care in 2006. Given their young ages and their special needs, the length of time Kim had to remedy her conduct — more than one and one-half years between the August 2006 incident and the March 2008 termination trial — was reasonable.
AS 47.10.088(b) provides that facts relevant to a determination that the parent has not remedied harmful conduct include the amount of remedial effort shown by the parent, "the harm caused to the child," the likelihood of further harm, and "the history of conduct by or conditions created by the parent."
See id. (in deciding whether to terminate parental rights, "the court may consider any fact relating to the best interests of the child, including . . . the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs"); Martin N. v. State, Dep't of Health Soc. Servs., 79 P.3d 50, 55-56 (Alaska 2003) (discussing legislative finding that children under six years "suffer tremendously" when bonding is interrupted, and that those children must be "placed in permanent homes expeditiously") (internal quotation marks omitted).
We also note that because the best interests of the children are paramount, compliance with a treatment plan does not guarantee non-termination of parental rights. Although the trial court found Kim had been in compliance with OCS's case plan since November 2007, the court also considered Kim's emotional disturbances, her past actions, Wesley and Kevin's special needs, and the lack of bonding between Kim and her children in the determination of the children's best interests.
V.S.B. v. State, Dep't of Health Soc. Servs., 45 P.3d 1198, 1208 (Alaska 2002).
The record reveals that at the time of trial Kim still faced significant obstacles to successful reunification. Wesley and Kevin's speech therapist reported that the boys stopped speaking and acted frightened when Kim began attending the speech therapy sessions. When OCS increased Kim's visits, Kevin began smearing feces again, regressing to a behavior he had previously abandoned. The boys' apparent lack of attachment to Kim was an ongoing concern, as was Kim's ability to parent safely. The social worker, whom the trial court found credible, testified that Kim was unable to show empathy for what her children had experienced, saw herself as a victim, and blamed her problems on Wesley and Kevin's father. The social worker also testified that the children were wary of Kim, did not call her "mom," and lacked a bond with her. Expert witness Dr. Michael Rose testified at the termination trial on the basis of his July 2007 diagnosis and subsequent information on Kim's case, explaining that Kim would likely act aggressively when under stress and abuse or neglect young children left in her care.
Having weighed the evidence of the children's best interests against the progress Kim had made with her case plan, the trial court concluded that Kim had not remedied the conduct that threatened harm to Wesley and Kevin and that returning the boys to Kim would severely harm and traumatize them "mentally and emotionally." Given the evidence in the record, the trial court's finding that Kim had not remedied conduct and conditions within a reasonable time is not clearly erroneous. E. The Trial Court Did Not Err in Finding that Returning Wesley and Kevin to Kim's Care Would Likely Result in Serious Emotional Damage to the Children.
ICWA requires the trial court to find beyond a reasonable doubt that continued custody of an Indian child by the parent "is likely to result in serious emotional or physical damage to the child." This finding must be supported by expert testimony, and we review the sufficiency of that support de novo. The trial court is not required to rely exclusively on the expert testimony, but the expert testimony must support the trial court's conclusions.
25 U.S.C. § 1912(f); CINA Rule 18(c)(4). Kim argues that OCS has the burden of proving that Wesley and Kevin would suffer harm if returned to her care, but the statutory language demands only a finding that the children are likely to suffer harm. Id. The trial court made the required finding.
25 U.S.C. § 1912(f); CINA Rule 18(c)(4); E.A., 46 P.3d at 989.
E.A., 46 P.3d at 992.
Expert testimony by Drs. Rose and Truitt established that Kim suffered from Major Depressive Disorder and Personality Disorder. Dr. Rose testified that Kim's test results showed an elevated (moderate to high) likelihood of abuse and neglect toward Wesley and Kevin and that his evaluation suggested "quite strongly that the children would not be safe in her care at this time." He reported that Kim's recurrent suicidal thoughts "should be considered a significant warning sign." Dr. Rose also reported that Kim would "likely become overwhelmed" by the stress of parenting if Wesley and Kevin were returned to her and that the risk of harm to Wesley and Kevin was greater because of their young ages. Dr. Truitt's report was "more optimistic" but made similar diagnoses: Major Depressive Disorder, severe; Alcohol Dependence, in remission; and Personality Disorder with schizotypal and avoidant traits. Dr. Truitt did note, however, that Kim had begun to accept some responsibility for her problems. The trial court acknowledged the differences between the expert opinions, but considered Dr. Truitt's results nonetheless "very similar" to Dr. Rose's and "not hopeful" for Kim's prognosis. It is, of course, "the role of the trial court, and not this court, to judge the credibility of any witnesses and to weigh conflicting evidence."
Kim argues that she is successfully parenting sixteen-year-old Jayne, demonstrating she is prepared to parent Wesley and Kevin. Dr. Rose countered this assertion by explaining that Kim might find parenting a relatively normal teenager much easier than parenting young children with special needs and developmental problems.
Alyssa B., 165 P.3d at 617 (internal quotation marks omitted).
Kim argues that Dr. Rose's testimony was legally insufficient to support the trial court's finding that returning Wesley and Kevin to Kim's care would likely result in serious emotional damage to the boys. She cites two cases, C.J. v. State and J.J. v. State, in which we found expert testimony legally insufficient because the experts had not met with the parents or children and had relied on outdated and contradicted information in OCS files. Dr. Rose, however, met with Kim, conducted multiple psychological tests, and reviewed Kim's treatment records from other assessors. Dr. Rose's testimony is distinguishable from the expert testimony in C.J. and J.J. and sufficiently supports the trial court's conclusion that returning Wesley and Kevin to Kim would likely result in harm to the children.
18 P.3d 1214 (Alaska 2001).
38 P.3d 7 (Alaska 2001).
Kim also argues that Dr. Rose's testimony did not prove beyond a reasonable doubt that returning the boys to Kim would likely result in serious emotional damage to them. However, lay testimony may supplement expert testimony to meet the burden of proof required by ICWA. The trial court noted the credibility of the social worker who testified that the children lacked a bond with Kim, were wary of her, and had begun to regress to feces-smearing after OCS had scheduled more frequent visits with her. The trial court was thus convinced that "[a]ll evidence shows the children are emotionally fragile and their extreme behavioral concerns are not going to change in the near future." We therefore hold that the totality of the expert and other credible testimony was sufficient to support the trial court's finding on this issue.
See E.A., 46 P.3d at 991-92 (holding extensive history of substance abuse and child's fear of returning to parent, taken with expert testimony, show beyond a reasonable doubt that child would likely be harmed if returned to parent); J.A. v. State, 50 P.3d 395, 403 (Alaska 2002).
F. The Trial Court Did Not Err in Finding Termination of Kim's Parental Rights Is in Wesley and Kevin's Best Interests.
For all of the reasons discussed in connection with the other three findings, ample evidence supports the finding that Wesley and Kevin's best interests will be served by terminating Kim's parental rights. The trial court needed only make this finding by a preponderance of the evidence, and we conclude that the determination was not clearly erroneous.
CINA Rule 18(c)(3).
V. CONCLUSION
We AFFIRM the trial court's termination of Kim's parental rights.