Opinion
Supreme Court No. S-11522.
March 16, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court Nos. 3AN-99-402/403/404A CP.
Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Laura C. Bottger, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Anita L. Alves, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, Guardian Ad Litem.
Before: Bryner, Chief Justice, Eastaugh, Fabe, and Carpeneti, Justices. [Matthews, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
The father of three children appeals the termination of his parental rights. He challenges the superior court's finding that termination of his parental rights was in the children's best interests and argues that the children's need for contact with their African-American heritage was not adequately considered and that a guardianship should have been created instead. Because the record supports the findings of the superior court, we affirm the termination of parental rights.
II. FACTS AND PROCEEDINGS
A. Factual History
Matthew B. is the father of three children: Michelle, born in 1990, Maxwell, born in 1992, and Morgan, born in 1997. Matthew was convicted in 2003 of murder in the second degree for killing his wife, the mother of his three children. Shortly after their mother's disappearance in June 1999, Matthew placed the children with their maternal grandparents. After the mother's body was found in early July 1999, the Department of Health and Social Services, Office of Children's Services (OCS) assumed legal custody of the children and arranged for them to remain with their maternal grandparents. Matthew was arrested for the murder of his wife in April 2002, and he has remained in custody ever since.
Pseudonyms have been used throughout this opinion to protect the identities of the parties.
OCS was formerly known as the Division of Family and Youth Services.
There is substantial evidence that the mother was a repeated victim of domestic violence by Matthew prior to her murder. Matthew has also been arrested for driving while intoxicated on four occasions and has a history of substance and alcohol-related crimes. Matthew stipulated that his children were in need of aid on March 6, 2000 based upon "a history of domestic violence and alcohol abuse that places the children at substantial risk of harm." Matthew argued at the adjudication hearing that OCS did not make reasonable efforts to provide remedial programs and rehabilitative services designed to return the children to the home. He claimed he could not fully participate in the case plan's requirements for anger management and domestic violence because therapy required self-disclosure, which would compromise his right against self-incrimination. The superior court found that OCS had made reasonable efforts but ordered OCS to explore alternative therapies that would not require self-disclosure. The OCS social worker was unable to find an alternative anger management program that would not require acknowledgment of past behaviors. Matthew did begin an anger management program on his own accord, although he did not complete the course of counseling.
B. Procedural History
A petition to terminate parental rights was filed by OCS on July 27, 2001. A contested placement hearing was held in May 2002, just following Matthew's arrest for the murder of his wife in April 2002. During and prior to the hearing, Matthew encouraged OCS to consider placing the children with paternal relatives. The trial court, however, found that placement of the children with a maternal aunt and uncle, who lived out of state but were prepared to adopt the children, would be in the children's best interests. The trial court found that the children had experienced more contact with these relatives than with their paternal relatives and that the paternal relatives had made no effort to indicate that they wanted the children placed with them, despite multiple efforts by OCS to call them. The trial court did note that Matthew's relatives should be allowed to have contact with the children following their move out of state.
A trial on termination of Matthew's parental rights was held before Judge William F. Morse on February 3-5, 2004. At trial, Matthew argued that a guardianship for the children would be in their best interests. Matthew maintained that his nephew, Benjamin B., would be well-suited to care for the children and Benjamin testified that he would be able to provide a home for the children in a year or a year-and-a-half in the future. The superior court noted that Benjamin could be an "invaluable asset" for these children because he is biracial and his own father was incarcerated. The superior court further stated that OCS should "think very seriously about getting [Benjamin] involved with these children" and that Benjamin "ought to continue to play at least an uncle if not a quasi-father role model for these children."
On February 19, 2004, the superior court terminated Matthew's parental rights to his three children. Judge Morse found clear and convincing evidence that the children were in need of aid under AS 47.10.011(8) because "they were subjected or exposed to conduct, both nonfatal domestic violence and the homicide itself." The superior court noted that "[t]he children were, are, and continue to be at substantial risk of mental injury as a result of the earlier domestic violence and the homicide." Judge Morse found by clear and convincing evidence that the requirements of AS 47.10.080(o), which governs termination of parental rights of an incarcerated parent, were satisfied based on a number of the statute's factors, including the children's young ages and the likely length of Matthew's sentence. The superior court therefore concluded that it was in the children's best interests to terminate Matthew's parental rights. Matthew appeals this decision.
AS 47.10.011(8) permits a trial court to find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to "conduct by or conditions created by the parent" that have resulted in either mental injury to the child or have placed the child at substantial risk of mental injury as a result of exposure to criminal behavior as enumerated under the statute. This criminal behavior includes crimes committed against another household member, including murder and assault.
III. DISCUSSION
Termination of parental rights of an incarcerated parent requires the superior court to make four findings, according to the child in need of aid (CINA) rules and statutes. A trial court must: (1) find by clear and convincing evidence that the child is in need of aid as articulated in AS 47.10.011; (2) find that the parent is incarcerated and the requirements of AS 47.10.080(o) are met; (3) find by a preponderance of evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts to prevent the breakup of the family; and (4) find by a preponderance of evidence that termination of parental rights is in the best interests of the children.
AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
Under AS 47.10.080(o) a trial court may find that incarceration of a parent is sufficient grounds for terminating parental rights based on clear and convincing evidence that (1) the period of incarceration is "significant considering the child's age and the child's need for an adult's care and supervision"; (2) another parent is unavailable to care for the child; and (3) the incarcerated parent has failed to make adequate provisions for the care of the child during incarceration.
CINA Rule 18(c)(2)(A).
CINA Rule 18(c)(2)(C).
In this case, Matthew challenges only whether termination of parental rights was in the children's best interests. He asserts that the superior court inappropriately focused on his past conduct instead of the children's best interests and did not adequately consider that termination would eliminate the children's contact with their paternal relatives.
A. Standards of Review
In a child in need of aid proceeding, we will affirm the superior court's factual findings unless they are clearly erroneous. Factual findings are clearly erroneous if this court is left "with a definite and firm conviction that a mistake has been made." Whether the superior court's findings comport with the requirements of the CINA statutes is a question of law that this court reviews de novo.
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000) (citation omitted).
Id.
B. The Trial Court Did Not Err in Determining that Termination of the Father's Parental Rights Is in the Children's Best Interests.
Matthew maintains that the best interests of the children are not served by termination of his parental rights. In making its best interests findings, the trial court found "by not merely a preponderance of the evidence but by clear and convincing evidence, it is in the best interests of the children that their father's parental rights be terminated." The superior court further reasoned that "the children need to hear from the community and from the state that their father's conduct regarding their mother is so abhorrent that he loses his parental rights."
Matthew asserts that it was error for the superior court to emphasize his past criminal conduct over the children's best interests. The State counters this argument by emphasizing the superior court's extensive findings about the damage the children suffered as a result of the father's actions, including the history of domestic violence and the murder of their mother. Matthew's appellate briefing surprisingly fails to mention that he was convicted of the murder of his wife, glossing over what was manifestly an extremely traumatic event for his children. The superior court relied on the notes of therapists, Dr. Susan LaGrande and Ms. Sandy Bhargava, both of whom concluded that the children continue to be "damaged and suffering." As the superior court further explained: "[t]he [therapists'] notes are replete with these children being in a self-protective cocoon of self . . . almost automatons. That shell needs to be broken . . . and then hopefully they can heal." The superior court found that "the children are repressed by the father's presence," and that "the children were damaged by their father." Judge Morse stated "I don't think that [the children] can get over this if their father remains in their life."
In addition to the trial court's findings regarding the impact of Matthew's conduct on the children, Judge Morse also found that Matthew "has failed to make adequate provisions for the care of the children during the period of incarceration." The children have not lived with the father since June 1999. The children have had an opportunity to bond with their maternal aunt and uncle, with whom they have been living since the end of the school year in 2002. As the guardian ad litem's brief explains, termination will allow the children to be adopted by their maternal aunt and uncle, and "[a]doption will allow them to establish roots in their community, continue in their school activities, and have a permanent home and family." "The children will have a sense of safety and security that will allow them to heal from the damage inflicted on them by the murder of their mother at the hands of their father." The only paternal relative that Matthew is able to offer to care for the children is Benjamin, but as the superior court found, he was "unavailable for at least twelve months and probably more given the youth of his own young child."
See AS 47.10.080(o).
C. The Trial Court Did Not Err in Declining To Order a Guardianship.
Matthew argues that the trial court is authorized to establish a guardianship under AS 47.10.011 "if it appears to the court that the welfare of a minor will be promoted by appointment of a guardian." He maintains that a guardianship with the maternal aunt and uncle would have provided the children with the same love and stability, while also allowing them access to their paternal relatives.
But as this court has stated in the past, "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." Moreover, there is evidence that the superior court considered and rejected the option of a guardianship at trial. Matthew contended that a guardianship would be less restrictive and would allow his nephew, Benjamin, to act eventually as a caretaker. The superior court noted in its oral findings that Benjamin does offer "some possibility as a guardian slash adoptive parent, but even [Benjamin] is unavailable for at least 12 months. . . ." Although the superior court found that Benjamin should be involved in the children's lives, it was unwilling to order anything more specific without knowing more about Benjamin and his relationship with the pre-adoptive family. After explaining his finding that the best interests of the children lay in termination, Judge Morse stated: "that is not to say that the concerns regarding extended family and ethnicity are not concerns that need to be dealt with, but they are not relevant to the termination decision." The decision to terminate parental rights is governed by AS 47.10 and should be made separately from placement decisions. As this court stated in Martin N. v. State, "[t]he existence of relatives with whom [the child] might have been placed . . . is unrelated to whether [the father's] parental rights should have been terminated. . . ."
C.W. v. State, Dep't of Health Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 57 (Alaska 2003).
Id.
Moreover, Matthew does not provide any evidence to indicate that his paternal relatives, including Benjamin, will have less access to the children after termination. Following the trial court's oral findings in favor of termination, the maternal aunt stated that she has been in contact with Benjamin via email and that "we are encouraging the kids . . . to continue that contact with [Benjamin]." She also maintained that she has "never discouraged anybody from . . . keeping in touch." It is within the discretion of the trial court to conclude that the children needed both the permanence and security of adoptive parents, as well as the space and distance from their father to be able to heal from the trauma of their mother's murder. The superior court did not err in concluding that the best interests of the children would be better served by a permanent placement now, rather than by attempting to place the children with a paternal relative at a later, unknown date.
Cf. J.H. v. State, Dep't of Health Soc. Servs., 30 P.3d 79, 87 (Alaska 2001) (affirming termination of parental rights where the child "needed permanence and stability and could not afford to wait any longer").
IV. CONCLUSION
Because the record supports the superior court's findings as to the children's best interests, we AFFIRM the termination of Matthew's parental rights.