Opinion
Supreme Court No. S-11654.
October 19, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Superior Court No. 3PA-01-0124 CP.
Benjamin I. Whipple, Palmer, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, 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
The superior court terminated the parental rights of an incarcerated father, Randy P., because it found that Randy did not make adequate "provisions" or "arrangements" for his child by proposing to place the child with Randy's mother. Because the child had closely bonded with his half-brother, and there was evidence Randy's mother's criminal history would prevent placing the half-brother with her, the superior court did not clearly err in finding that Randy's proposal was not "adequate." We therefore affirm the termination of his parental rights.
Pseudonyms have been used throughout this opinion to protect the identity of the parties.
II. FACTS AND PROCEEDINGS
Randy P. was convicted of second-degree murder under Washington state's felony murder rule in 2000 and sentenced to serve thirty years in prison. Randy's son Zeke and Zeke's half-brother Clint lived in Alaska with their biological mother, Amanda, and Clint's father, Clinton. In December 2001 the Alaska Department of Health and Social Services took emergency custody of both boys due to Amanda and Clinton's domestic violence and substance abuse issues. Over the next year, Randy and his mother, Dolores, made repeated requests that the boys be placed with Dolores. The department contacted its equivalent agency in Washington state, where Dolores resides. The department learned that Dolores had a criminal history, including several forgery convictions and one possession of stolen property charge. All of these offenses or alleged offenses were felonies that apparently related to cocaine use. The department was also concerned about Dolores's comment that she envisioned Randy serving as an "uncle" figure to Zeke and Clint if the boys were placed with her and Randy was released from prison. The department decided not to continue investigating Dolores as a potential placement.
According to a letter from Randy's criminal defense attorney in Washington, Randy's felony murder conviction could be overturned due to a recent decision by the Washington Supreme Court. But even if his conviction is overturned, it is apparently not clear whether Randy could face additional charges and still have to serve additional time. Accordingly, we must assume here that Randy will be incarcerated for the indefinite future.
According to electronic correspondence from Washington state, Dolores was also charged with one count of possession of stolen property, but she testified that the possession charge was not hers.
In April 2003 the department filed an Alaska superior court petition to terminate Randy's parental rights. Following trial, Superior Court Judge Eric Smith terminated Randy's parental rights under AS 47.10.080(o) and, alternatively, under AS 47.10.088. Randy appeals, challenging the superior court's findings that his proposal to place Zeke with Dolores was not adequate and that Randy had therefore not made adequate provisions or arrangements for Zeke during Randy's incarceration.
The department also petitioned to terminate the parental rights of Amanda and Clinton.
The superior court also terminated Amanda's parental rights to Zeke and Clint and the parental rights of Clinton to Clint. Amanda did not appeal the termination of her parental rights to either child. Clinton R., Sr. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., Mem. Op. J. No. 1222 at 2 (Alaska, August 10, 2005). Clinton appealed the termination of his parental rights to Clint. See id. at 1-2. We affirmed the termination of Clinton's parental rights. Id. at 2.
III. DISCUSSION
A. Standard of Review
We review for clear error the factual findings supporting termination of parental rights. A finding is clearly erroneous when a review of the entire record leaves us with a definite and firm conviction that the superior court has made a mistake. "Whether the factual findings are sufficient to satisfy the child in need of aid (CINA) statutes and rules is a question of law that we review de novo," adopting the rule of law that is most persuasive in light of precedent, reason, and policy.
Stanley B. v. State, DFYS, 93 P.3d 403, 405 (Alaska 2004).
Id.
Id.
B. Randy's Appeal Turns on Whether the Superior Court Clearly Erred in Finding that Randy Made Inadequate Provisions or Arrangements for Zeke.
The superior court terminated Randy's parental rights under authority of AS 47.10.080(o) and AS 47.10.088.
Alaska Statute 47.10.080(o) provides that an incarcerated parent's parental rights may be terminated if, in addition to other required findings, the court determines by clear and convincing evidence that "the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child's minority."
AS 47.10.080(o)(3) (emphasis added).
Alaska Statute 47.10.088 permits termination of parental rights if the trial court first finds by clear and convincing evidence that "the child has been subjected to conduct or conditions described in AS 47.10.011." Alaska Statute 47.10.011(2) provides that a court may find a child to be a child in need of aid if it finds that "a parent, guardian, or custodian is incarcerated, the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid . . . and the incarcerated parent has not made adequate arrangements for the child." (Emphasis added.)
Randy challenges the superior court's findings that he had not made "adequate provisions" under AS 47.10.080(o)(3) or "adequate arrangements" under AS 47.10.011(2).
C. Randy Failed To Make Adequate Provisions or Arrangements for Zeke.
Randy disputes the superior court's finding that Dolores was not an adequate placement and that Randy had therefore failed to make adequate arrangements or provisions for Zeke during Randy's incarceration. The superior court concluded that Dolores was not an adequate placement because it found that (1) "she substantially minimizes her past criminal conduct," (2) she "is not able to be objective in terms of the risks that would be posed by [Randy]," and (3) "it is essential to the best interests of the children that [Zeke and Clint] remain together." We conclude that the third finding, concerning the child's best interests, is sufficient to support the superior court's ultimate conclusion that Dolores was not an adequate placement. Accordingly, we need not discuss the first two findings.
The superior court reasoned that "it is essential to the best interests of the children that they remain together, and [Dolores] had absolutely no real connection to [Clint]. It is important to note in this context that the relative placement preference in [AS 47.14.100(e)] would not apply to [Clint]." In other words, the superior court concluded that Zeke and Clint would be separated if Zeke were placed with Dolores and that this result would not be in Zeke's best interests. The record supports these findings.
State social worker Lori D'Amico's testimony indicates that even if the department had decided to place Zeke with Dolores, it would not have decided to place Clint with her as well. D'Amico testified that Clint "is not [Dolores's] biological [grand]child, and we have no intentions of splitting those children up." As the superior court noted, the relative placement preference in AS 47.14.100(e) would not apply to Dolores's request that Clint be placed in her home. This means that, as to placement of Clint, Dolores would not receive the special consideration afforded to relatives under AS 47.14.100(e).
See AS 47.14.100(e) (providing that if relative requests placement in relative's home, department may not place child in foster home or with agency or institution unless it makes several determinations, including "a determination, supported by clear and convincing evidence, that placement of the child with the relative will result in physical or mental injury").
Dolores had been convicted in the mid-to-late-1980s of several felony forgeries and charged with at least one count of felony possession or attempted possession of stolen property. D'Amico was asked whether the department could have placed Clint with someone who had a felony history, and she answered that "[w]e would choose not to place with someone with a felony history." This testimony, coupled with Dolores's criminal record and the fact that she would receive no preferential consideration for Clint's placement, supports the superior court's finding that Zeke and Clint would have been separated if Zeke were placed with Dolores.
State social worker Nancy Kirchoff testified that the boys were "very much" bonded to each other and that the department never considered separating them because it would have been "emotionally damaging to them." Zeke's mental health therapist testified that Zeke "definitely" appeared strongly bonded to Clint and that it would be "most helpful" to keep them together. As a result, we cannot say that the superior court clearly erred in finding that separation from Clint would have been contrary to Zeke's best interests.
Placement with Dolores was the only "provision" or "arrangement" Randy proposed. And he did not even make this proposal until he had been incarcerated for nearly two years, despite his ongoing concerns about Amanda's ability to safely parent Zeke. Although the superior court did not find it necessary to make findings on the issue, this delay provides further support for the finding that Randy failed to make adequate provisions or arrangements for Zeke.
Randy testified that he had concerns about Amanda's parenting as early as 1998, around the time Randy and Amanda had separated. He was incarcerated in January 2000. It was not until "probably winter of 2001" that Randy even talked with his mother about the possibility that she would take care of Zeke.
Because the superior court did not clearly err in finding that placement with Dolores would have separated Zeke and Clint and that this would have been contrary to Zeke's best interests, we also conclude that the superior court did not clearly err in finding by clear and convincing evidence that Randy had failed to make adequate provisions or arrangements for Zeke.
D. The Department Made Reasonable Efforts To Consider Randy's Placement Proposal.
Relying on Stanley B. v. State, DFYS, Randy argues that the "[d]epartment was obligated to make 'reasonable efforts' to consider [Dolores] for placement" and that it failed to do so. In other words, Randy asserts that if the department has custody of the child, it must properly investigate the parent's placement proposals before the superior court can terminate the parent's parental rights under AS 47.10.080(o) or AS 47.10.088.
Stanley B. v. State, DFYS, 93 P.3d 403 (Alaska 2004).
Randy also contends that AS 47.14.100(e), which contains a relative placement preference, obligated the department to make reasonable efforts to consider Dolores. We address this argument in Part III.F.
Randy contends that the following passage in Stanley B. imposed a duty to consider upon the department in the context of AS 47.10.080(o)(3):
Stanley provided DFYS with the names of several relatives and friends with whom he wanted the children placed. The superior court found that DFYS had made "more than reasonable efforts" to consider Stanley's stated preferences. Having reviewed the record, we agree. Because none of Stanley's placement options was facially "adequate," the conditions for termination under AS 47.10.080(o) were met.
Stanley B., 93 P.3d at 406.
The key superior court finding in Stanley B. was that the proposed placement options were not adequate. Although we mentioned the superior court's finding that DFYS had made "reasonable efforts" to consider Stanley's preferences and stated that we agreed with it, we did not hold or state that such a finding is a prerequisite to terminating parental rights under AS 47.10.080(o). Stanley B. therefore did not decide whether the department must make reasonable efforts to consider a parent's placement proposals before the superior court can terminate parental rights.
Stanley argued that the superior court erred in finding that the department made reasonable efforts to consider his placement proposals. We concluded that the department had made reasonable efforts in any event. It was therefore not necessary to decide whether the department had to make reasonable efforts to consider the placement proposals before seeking termination, or whether the superior court erroneously reviewed the department's conduct rather than independently assessing the adequacy of Stanley's placement preferences.
We also note that Stanley's B.'s use of the phrase "facially 'adequate'" did not modify the statutory standard contained in AS 47.10.080(o) or AS 47.10.088 (and AS 47.10.011(2)). The phrase simply described the evidence in Stanley B. Stanley's placement proposals were not only inadequate, they were facially inadequate.
Nor do we need to decide that question here. Assuming that the department has such a duty, we conclude that it made reasonable efforts to consider Dolores as a placement choice. Once the department learned of Dolores's criminal record and determined that Zeke and Clint would be separated if Zeke was placed with Dolores, it was not unreasonable for the department to refrain from further consideration of Dolores as a potential placement.
See Part III.C.
E. Randy's Due Process Argument Lacks Merit.
Randy argues that his due process rights were violated because the department failed to notify him that it had decided not to continue considering Dolores as a potential placement for Zeke. He asserts that "[t]his denied any meaningful opportunity to seek court review of the placement decision before the termination trial." But Randy and Dolores were not prevented from appealing the department's prolonged failure to grant his placement request. That denial was appealable.
See AS 47.14.100(e)(1) (providing that rejection of relative placement request "may be appealed to the superior court to hear the matter de novo").
Randy also claims that the alleged failure to notify meant that "he was never in a position to provide an alternative [placement proposal]." We assume that if the department determines that a parent's placement proposal is not adequate, it must communicate that determination to the parent to give the parent an opportunity to make another proposal. But any failure to notify here was harmless absent a showing of prejudice. Randy does not argue on appeal that he would have made an alternative proposal had he been notified of Dolores's rejection. Nor does he point to any location in the record where he asserted that he would have proposed a different placement. We therefore conclude that Dolores was the only placement proposal Randy considered and that any failure by the department to notify him of her rejection was harmless.
See, e.g., ConocoPhillips Alaska, Inc. v. State, Dep't of Natural Res., 109 P.3d 914, 924 (Alaska 2005) (holding that procedural error was harmless because plaintiffs "made no specific offer of proof to establish potential prejudice below and have failed to identify any substantial prejudice in their current briefing").
F. Alaska Statute 47.14.100(e)'s Relative Placement Preference Does Not Directly Apply to the Termination Decision.
Randy apparently argues that the department should have placed the boys with Dolores in accordance with the relative placement preference contained in AS 47.14.100(e). But the department's placement decision of the children is not directly before us. The ultimate issue here is whether the superior court erred in finding at the termination stage that Randy's proposal to place Zeke with Dolores was not an "adequate" provision or arrangement. Earlier placement decisions do not control the superior court's decision at the termination stage. Alaska Statute 47.14.100(e) does not apply here.
See supra note 10.
See Martin N. v. State, Dep't of Health Soc. Servs., DFYS, 79 P.3d 50, 57 (Alaska 2003) ("The existence of relatives with whom [the child] might have been placed, a factor affecting DFYS foster placements under Title 47.14 of the Alaska Statutes, is unrelated to whether [the parent's] parental rights should have been terminated, a decision governed by AS 47.10.").
IV. CONCLUSION
For these reasons, we AFFIRM the order terminating Randy's parental rights.