Opinion
Supreme Court No. S-11934.
March 15, 2006.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge. Superior Court No. 1JU-03-00024 CP.
Kathleen Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Jan A. Rutherdale, Assistant Attorney General, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This is a child in need of aid (CINA) case involving the termination of Lucretia G.'s parental rights over her fourteen-year-old son, David, under Alaska's CINA statutes and the Indian Child Welfare Act. In March 2004 the Alaska Office of Children's Services (OCS) sought termination, arguing that this was in David's best interests in light of Lucretia's long history of violence, criminal convictions, and unaddressed substance abuse. David, who has spent the majority of his life in foster care, has expressed a desire to have Lucretia's parental rights terminated and to be adopted by his foster parents. In May 2005, after hearing evidence on Lucretia's ability to function as a parent, and specifically considering her conduct in the three months since her most recent bout of incarceration, the superior court terminated her parental rights. Lucretia argues on appeal that the superior court erred by choosing termination over a guardianship. Because the superior court's factual findings regarding Lucretia's parenting capacity are amply supported by the record, and its decision to terminate Lucretia's parental rights was clearly in David's best interests, we affirm the judgment of the superior court.
Pseudonyms are used to protect the identities of the parties.
II. FACTS AND PROCEEDINGS
David, the only one of Lucretia's six children whose custody is at issue in this appeal, was born on July 13, 1991 in Portland, Oregon. Lucretia admitted to Oregon Children's Services Division officials that she had used cocaine and alcohol for the previous four years, throughout the pregnancy, and on the day she went into labor. She initially expressed an intention to put David up for adoption, but then changed her mind. Oregon Children's Services took custody of David upon being informed by hospital officials that he would be at grave risk of abuse or neglect if placed in Lucretia's care.
The termination proceedings originally included another child, C.G., but OCS's permanent plan for C.G. was later changed to guardianship. C.G. is older than David, and has spent more time with her mother. Her custody is not at issue in this appeal.
Lucretia moved from Portland to Juneau in December 1994. In 1995, after she had been sober for a year, David was returned to her. She placed David in the care of her brother and his wife, A.G. and T.G., in December 1995, and gave them power of attorney over David. A.G. and T.G. also moved to Juneau around this time. David remained in their care until June 2001, when Lucretia reasserted her parental rights. He was almost ten years old when he began living with Lucretia again and, according to OCS, he "thought he had been adopted by [A.G. and T.G.], who apparently limited access between [David] and his mother, and [David] at first felt torn between the two homes."
OCS received at least two reports of Lucretia's abuse of David during the 2001-2002 school year. In November 2001 David "reported that his mother was constantly yelling at him and threatening to harm him, that his mother had punched him in the stomach and paddled him with a metal spatula, and that she had given permission for [one of David's siblings] to hit [David] if he did something wrong." The following March, David told a social worker "that his mom yelled at him and pulled his ear when he did not do his chores correctly." Lucretia admitted to having pulled his ear once when he accepted a ride from a stranger.
From June until November 2002 David and his siblings were cared for by Lucretia's boyfriend while Lucretia served a sentence for felony driving while intoxicated. In January 2003 Lucretia was remanded to custody after consuming alcohol and associating with a felon in violation of the conditions of her probation. During this period of incarceration, David and his siblings were supervised by a maternal aunt.
As OCS notes, this was her third DWI conviction in four years. Since David was returned to her care in 1995, Lucretia has had numerous contacts with the police, including a 1996 report of "reckless endangerment while driving with 5 kids in the car [with] alcohol involved"; a 1997 report that she had been found unconscious in a car at a nightclub with "alcohol involved"; a 1997 report that she had assaulted her boyfriend with "alcohol involved"; and a 1999 report that she had hit a car in a grocery store parking lot with "alcohol involved."
In April 2003 David's aunt informed OCS that "she could not continue caring for the children without the State assuming legal custody . . . and assisting in their care." OCS filed a CINA petition with regard to David and two of his siblings, seeking temporary custody. In May 2003 the court found that David and his siblings were children in need of aid, and awarded temporary custody of David to OCS. David was placed in the care of A.J. and L.J., two maternal cousins. He has remained in their care since 2003.
Lucretia was released from custody in April 2003, on the condition that she obtain mental health and substance abuse treatment, seek counseling for herself and her family, and attend parenting and anger management classes. She began outpatient substance abuse treatment, but her attendance was sporadic and Lucretia's counselor later testified that the counselor "had an extremely difficult time getting her to focus." Noting that Lucretia's substance abuse issues could not be addressed separately from her mental health issues, her counselor discharged her from the program and recommended that she seek a mental health evaluation.
In July 2003 Lucretia was evaluated by Cindy Drake, an OCS mental health clinician. Drake reported that Lucretia appeared to be malingering and answering questions dishonestly during the evaluation, and that she exhibited antisocial personality traits. Drake explained the diagnosis of antisocial personality traits as "a pattern of . . . going against social norms, criminal activity despite negative consequences, excessive irritability, or assaults on others. It's a pattern of lacking . . . empathy for others, [an] inability to learn from mistakes." She also noted that Lucretia showed symptoms of dysthymia and had a substance abuse problem. Drake recommended a long-term inpatient treatment program that would address both mental health and substance abuse. Lucretia obtained an evaluation from the Juneau Alliance for Mental Health, Inc. (JAMHI) approximately a week after her appointment with Drake and was diagnosed with dysthymia, post-traumatic stress disorder, and alcohol dependence. She was found to qualify for psychiatric and therapeutic services.
But in August 2003 Lucretia was arrested for drinking and associating with a known felon in violation of her probation terms. After her probation revocation hearing, she was initially placed in the Glacier Community Residential Center and permitted to maintain employment at a local hotel. In December 2003, however, she was fired for "insufficient work." Upon learning of this, she "started screaming and cussing out [her employer]" and threw a clipboard at her employer's head. She was subsequently remanded to the Lemon Creek Correctional Center, where she was incarcerated until March 2004.
When Lucretia was released, she again sought treatment at JAMHI. According to JAMHI, she was actively participating in her treatment during the spring of 2004. OCS, which had indicated in March 2004 that it intended to seek termination of Lucretia's parental rights over David, delayed filing the petition to terminate because, as of May 2004, Lucretia appeared to be making progress in her treatment.
But Lucretia was arrested for assault the following month. Although a jury acquitted her of the assault charge, her probation was revoked because she had been drinking and associating with a known felon. OCS filed a petition for termination of Lucretia's parental rights over David and C.G. in July 2004.
As noted above, OCS eventually sought a guardianship for C.G.
At trial, Lucretia stated that she did not "know where most of these accusations came from" and could not "sit there and [dis]prove each and every one of them," but she also acknowledged having "ma[d]e mistakes." She testified that she planned to seek substance abuse treatment after release:
I do still plan on going to [the] Bill Brady [treatment program], or the one in Ketchikan, which I should hear from any day. And I'm looking forward to the one in Sitka, because it also involves cultural, spiritual, and it's more something I can relate to. And I've heard a lot of good outcome of the Bill Brady center, Bill Brady Healing Center. And then the aftercare is, of course, first phone call I'm going to make, one and only, is Amalia McCarthy. Soon as I get out of jail, she's the one I always call, he[r] and JAMHI. I always call JAMHI. Go through the years, I've been calling them, yeah, I just got out of jail.
Although the tribal representative suggested guardianship rather than termination of parental rights, David's guardian ad litem supported termination. The guardian noted that David, who was thirteen at the time of the trial, had told OCS social workers "that he wants adoption, and to remain with his foster parents, the [J.] family."
The superior court found "beyond a reasonable doubt" that returning David and C.G. to their mother would "place them at risk of harm," and noted that "they both want to live some place else." But rather than terminating Lucretia's parental rights, the court placed the children in the temporary custody of the state, with David still in the care of A.J. and L.J., and withheld further findings on the petition to terminate until May 2005. The court gave a forceful warning that the ultimate outcome depended on Lucretia's conduct after she was released:
[W]hen you get out of jail, if you'll do those things that you talked about, like really getting into an inpatient treatment program, and staying sober, and dealing with your medication, and your mental health issues, then you may be able to show that it's not appropriate to terminate parental rights. But if you come back in, and the same — same kind of things that we've been seeing through the years, there's only going to be one person responsible, and all the excuses in the world won't count.
Lucretia was released in February 2005 and, according to testimony offered by her social worker at the May 2005 hearing, she and her brother subsequently began to harass A.J. and L.J. about David's custody arrangements. When Lucretia and her brother were confronted about this behavior in March, Lucretia's brother became hostile toward the social worker. This incident was the only contact between Lucretia and the social worker between February and May 2005. Furthermore, although Lucretia testified that she had met with a mental health counselor three times, she did not contact JAMHI or enter substance abuse treatment.
David's guardian ad litem filed a report recommending that Lucretia's parental rights over David be terminated. The report pointed out that David and A.J. and L.J. had written letters to OCS after the November hearing "expressing disappointment with the [c]ourt's decision," and emphasized David's desire to be adopted by A.J. and L.J. David had been in the care of A.J. and L.J. for longer than he had lived with Lucretia and he "appear[ed] to be bonded with the [J.] family." The report did not elaborate on contact between David and Lucretia, except to note that "[Lucretia] and some members of her family have taunted both [the J.'s] and [David] over the last two years over his placement with them."
The superior court found that Lucretia had a "long history of drug and alcohol abuse, domestic violence, and other assaultive conduct"; that she had not made significant progress since her release; that she continued to associate "with people who are not leading a substance-free lifestyle"; and that she had failed to keep in contact with either OCS or David. The court's order noted that there was "clear and convincing evidence" both that David was a child in need of aid and that "[Lucretia] . . . ha[d] not remedied the conduct or conditions in the home that put [him] at substantial risk of harm." It found that "[a]ctive efforts ha[d] been made [by the state] to provide remedial services," including "substance abuse treatment, mental health services and parenting/domestic violence counseling," but that these efforts had been unsuccessful. Based on these findings, and the testimony of Lucretia's social worker and a psychologist — both qualified experts under the Indian Child Welfare Act — the court determined that there was "evidence beyond a reasonable doubt . . . that return of [David] to [Lucretia's] custody is likely to result in both serious emotional and physical damage to the child." The court therefore held that "[i]t is contrary to the welfare of the child to return home" and terminated Lucretia's parental rights over David.
See D.A.W. v. State, 699 P.2d 340, 342 (Alaska 1985) (citing 44 Fed. Reg. 67584 (1979), which defines a qualified expert under the Indian Child Welfare Act as an expert "qualified to speak specifically to the issue of whether continued custody by the parents or the Indian custodians is likely to result in serious physical or emotional damage to the child"). Lucretia does not appear to dispute the superior court's conclusion that the experts who testified were qualified under the Indian Child Welfare Act.
III. DISCUSSION
A. Standard of Review
We will sustain a superior court's findings of fact in a CINA case unless they are clearly erroneous. Such findings are clearly erroneous if a review of the entire record leaves us "with a definite and firm conviction that a mistake has been made." Whether the superior court's conclusions comply with the Indian Child Welfare Act and the statutory CINA requirements is a question of law that we review de novo. B. Termination of Lucretia's Parental Rights 1. Factual findings necessary to terminate parental rights
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).
Id. (quoting R.J.M. v. State, Dep't of Health Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000); D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 207 (Alaska 2000).
Under AS 47.10.011, a court may find a child to be in need of aid if "conduct by or conditions created by the parent . . . have subjected the child or another child in the same household to neglect"; "the parent['s] . . . ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child"; or "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." A court may terminate a parent's parental rights if: (1) it finds by clear and convincing evidence that a child is in need of aid; (2) it finds by clear and convincing evidence that the parent "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 . . . would place the child at substantial risk of physical or mental injury;" and (3) it finds by a preponderance of the evidence that the state has made reasonable efforts to provide rehabilitative services. In making this determination, the statute requires the court to "consider the best interests of the child." The federal Indian Child Welfare Act further requires that the court find "by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."
AS 47.10.011(9).
AS 47.10.011(10).
AS 47.10.011(11).
AS 47.10.088(a)(1)(A).
AS 47.10.088(a)(1)(B)(ii).
AS 47.10.088(a)(2). Under Alaska CINA Rule 18(c)(2)(B), a court terminating parental rights over an Indian child must find "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." (Emphasis added.)
AS 47.10.088(c); see also A.B., 7 P.3d at 954 (stating that "in a termination trial, the best interests of the child, not those of the parents, are paramount").
25 U.S.C. § 1912(f) (2001).
The superior court's findings on these issues are supported by ample evidence. Lucretia's long history of arrests and of bouts of incarceration does not appear to have come to an end and the majority of these incidents involve alcohol, violence, or both. In light of this history, which includes the violent abuse of David, David is clearly a child in need of aid. Lucretia not only failed to remedy these issues "within a reasonable time," but failed to remedy them at all, even after the court made it clear that the continuation of her parental rights depended on it. The court's determination that the state made "active efforts" to provide remedial services is strongly supported by the repeated imposition of parole conditions requiring Lucretia to seek treatment for her substance abuse problems; the state's attempts to enroll her in treatment programs; and, finally, the court's own warning that retaining parental rights depended on "really getting into an inpatient treatment program, and staying sober, and dealing with your medication, and your mental health issues." In view of this evidence, and the testimony of social workers qualified under the Indian Child Welfare Act, the superior court was correct to conclude that Lucretia's custody of David was likely "beyond a reasonable doubt" to "result in serious emotional or physical damage to the child." 2. Whether the court erred in rejecting a guardianship
See AS 47.10.011(10) (providing that a child placed at substantial risk of harm because of a parent's habitual substance abuse is a child in need of aid); AS 47.10.011(11) (providing that a child placed at substantial risk of harm because of a parent's mental disorder is a child in need of aid).
AS 47.10.088(a)(1)(B)(ii).
As the court notes, Lucretia did participate sporadically in some of these programs, but they were "not successful in that, after participating in these services, [Lucretia] continued to consume alcohol and associate with people who drink and are violent."
25 U.S.C. § 1912(f) (2001).
Lucretia claims on appeal that OCS should not have terminated her parental rights over David because a guardianship, rather than a termination, would have been in David's best interests. Pointing out that guardianship can be imposed as a substitute for termination when doing so is in the child's best interests, Lucretia argues that depriving David of contact with her and of the right to inherit from her is not in David's best interests. But Lucretia's continuing violence and substance abuse make it unlikely that further contact would benefit David. The dangers inherent in continuing contact have been recognized not only by David's guardian ad litem, who recommended termination, but also by David himself, who regards further contact with his mother as cause for alarm. According to the guardian ad litem, David would like to "put his past behind him and look forward to the future without worrying about another pending court hearing or his mother's progress towards possible reunification with him."
See C.W. v. State, Dep't of Health Soc. Servs., 23 P.3d 52, 57 (Alaska 2001) ("Although AS 47.10.110 permits a court to appoint a guardian for a child when it appears to the court that such an appointment would be in the child's best interest, AS 47.10.088 does not require that guardianship be considered in termination proceedings, except to the extent that the statute requires the court to order an arrangement that is in the child's best interest.").
In addition, having lived away from his siblings for the majority of his life, David does not appear to have a strong bond with his siblings or a strong desire for contact with any siblings still in Lucretia's custody. Such contact would likely not be in David's best interests, as Lucretia appears to have encouraged at least one of his siblings to physically abuse him.
David's inability to inherit from Lucretia is an unpersuasive justification for guardianship for two reasons. First, if Lucretia wishes to provide for David's support after her death, and has the resources to do so, she can transfer wealth to him through a will or trust regardless of whether she has parental rights. Second, even if David loses economic benefits that he would have obtained from Lucretia, this loss is likely to be outweighed by the benefits — both emotional and economic — that he receives as the adopted child of A.J. and L.J. In addition to the J.s' ability to support David, adoption would provide an assurance of future stability that would not be available in a guardianship arrangement. The superior court's decision to terminate Lucretia's parental rights, as opposed to imposing a guardianship, was therefore in David's best interests.
See AS 13.12.501-.517 (providing for transfers of wealth on death through wills and trusts). But, as the state points out, Lucretia does not appear to have the financial resources to support David in the present, much less the future.
As David's guardian points out, Lucretia has harassed A.J. and L.J. and appears not to understand the difference between a guardianship and foster care. It is unlikely that a guardianship imposed in these circumstances would provide the stability and closure that David needs.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the superior court.