Opinion
Supreme Court No. S-14179.
November 30, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge, Superior Court Nos. 3AN-07-00161 CN and 3AN-08-00371 CN (Consolidated).
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Laura C. Bottger, Assistant Attorney General, Anchorage, and John J. Burns, Attorney General, Juneau, for Appellee. Paul F. McDermott, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Victor and Charlotte are the parents of Violet and Nora. Both children are "Indian children" within the terms of the Indian Child Welfare Act (ICWA). Neither child has ever lived with her biological parents. The Office of Children's Services (OCS) assumed custody of Violet two days after she was born in May 2007 because she tested positive for cocaine. OCS assumed custody of Nora when she was born in October 2008 because of Victor's and Charlotte's continuing issues with substance abuse and domestic violence. Both children have lived with the same foster mother since birth. Violet has weak eyesight and requires prescription glasses. Nora requires therapy for fine and gross motor skills and speech therapy.
We use pseudonyms to protect the privacy of the parties.
25 U.S.C. § 1903(4) (2006).
2. In 2009, OCS filed a petition to terminate both Charlotte's and Victor's parental rights to Violet. Charlotte relinquished her parental rights before trial. Victor proceeded to trial and the superior court denied the petition to terminate his rights without prejudice. Violet's and Nora's cases were consolidated after this first termination trial.
3. In May 2010, OCS filed a second petition to terminate Victor's parental rights to Violet and a petition to terminate both Charlotte's and Victor's parental rights to Nora. OCS alleged that the children were children in need of aid because Victor had engaged in conduct under AS 47.10.011(1) (abandonment), (6) (risk of physical harm), (8) (risk of mental injury), and (10) (use of intoxicants), and Charlotte had engaged in conduct under AS 47.10.011(1) (abandonment), (6) (risk of physical harm), (8) (risk of mental injury), (9) (neglect), and (10) (use of intoxicants).
AS 47.10.011 provides, in relevant part, that:
[T]he court may 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 any of the following:
(1) a parent or guardian has abandoned the child . . . and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter . . .
(6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent . . . or by the failure of the parent . . . to supervise the child adequately . . .
(8) 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 . . .
(9) conduct or conditions created by the parent . . . have subjected the child or another child in the same household to neglect;
(10) 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. . . .
4. At the termination trial, which took place in September and November 2010, police officers testified to several reported incidents of domestic violence between Victor and Charlotte that occurred between 2006 and 2010. The first incident occurred in October 2006. Charlotte reported that Victor had assaulted her. She was intoxicated and pregnant with Violet at the time.
5. In April 2007, Charlotte reported that Victor had assaulted her again. She told the officer that Victor was very jealous and they began arguing when he tried to check her cell phone to see whom she had been calling. Victor grabbed her, pushed her, hit her several times, took her cell phone, choked her, and prevented her from leaving by shutting her in the bedroom. She was seven or eight months pregnant with Violet at the time. Victor was arrested and ultimately pled no contest to fourth degree assault. He was ordered to participate in — and later completed — a domestic violence intervention program as part of his sentence.
6. In September 2008, Victor reported that Charlotte had threatened him with a knife. Charlotte admitted to threatening him with a knife and reported that he had slapped her. An officer observed that Charlotte appeared to be intoxicated during this incident. Victor said their argument occurred because Charlotte came home intoxicated, which was a continual problem. Charlotte was pregnant with Nora at the time.
7. In December 2008, Charlotte reported that Victor had accused her of being unfaithful and slapped her. Victor reported that Charlotte had threatened him with a knife, which she admitted doing. She also admitted that she had been consuming alcohol. Later that same month, Victor reported that Charlotte struck him with a wine bottle when he refused to take her to the store to buy more alcohol. Charlotte reported that Victor slapped and punched her. She also admitted to having several drinks. The officer did not see any visible injuries on Victor but saw a small cut above Charlotte's eye. She said it was from a previous fight with Victor, but that she had not reported the incident because he had threatened to kill her if she did.
8. In January 2009, two officers were called to Victor's and Charlotte's residence. The officers testified that the apartment had been trashed, items were knocked over in every room, and there were darts and broken glass on the floor. Victor had two small puncture wounds on his right arm, several scratches on his right shoulder and left arm, and his skin was torn and bleeding on the right side of his abdomen. Victor reported that he and Charlotte had both been drinking and began arguing about Charlotte's internet use. According to Victor, Charlotte then threw the computer modem and cables on the floor, destroyed the apartment, stabbed him with a dart multiple times, hit him with a broken broom handle, and cut him with a broken plastic cup. Charlotte reported that they got into an argument because Victor was jealous that she had so many male friends on the internet.
9. The last reported incident occurred in May 2010. Charlotte called the police to report what she described as a fight that had not turned physical. Two officers arrived and interviewed Victor and Charlotte separately. Charlotte reported that Victor became upset because she was "on the internet conversing with some guys," and that when she began packing and tried to leave, he "raised his hand as if to hit her." When the officer asked why she thought Victor would hit her, Charlotte said he had abused her in the past. The officer saw nothing to indicate substance abuse was involved. Victor reported that he thought Charlotte was going to hit him, but that he would not have "gotten physical" with her.
10. OCS social workers testified at the termination trial that Charlotte had worked to become sober and comply with her case plan. Following an arrest in July 2009 for violating the terms of her probation for a previous conviction, Charlotte participated in an in-patient substance abuse treatment program from September 2009 to March 2010. After completing the program, she continued to participate in individual counseling, take classes on domestic violence, and attend substance abuse meetings. At the time of trial, she had been sober since July 2009 and in compliance with her case plan since September 2009.
Charlotte was convicted of illegally importing alcohol in 2007 and periodically spent time in jail from 2007 to 2009 for probation violations.
11. Charlotte testified that she thought domestic violence was normal while growing up but now understands that it is not. She also testified that she does not plan on continuing a relationship with Victor because she realizes that their relationship was unhealthy due to their history of domestic violence. Her priorities are now sobriety, her children, and her job. Her probation officer testified that Charlotte has "matured" and "realizes the magnitude of how [breaking the law] is affecting her and . . . her children."
12. In contrast, OCS social workers testified that Victor has only addressed portions of his case plan. He completed the domestic violence intervention program ordered as part of his sentence for the fourth degree assault conviction. He also completed parenting classes offered through the Cook Inlet Tribal Council (CITC). But Victor initially refused to comply with his case plan requirement for random urine analysis testing. He eventually provided two samples in May 2009, which both tested positive for marijuana; he later provided "a couple" of clean samples in early 2010. He also claimed that he was a good parent to his two older children living in California but failed to provide their mother's contact information to OCS for 17 months, despite knowing that OCS wanted to confirm his claim.
13. Victor also completed a psychological assessment with Dr. David Sperbeck in April 2009. Dr. Sperbeck's report stated that Victor repeatedly denied a history of alcohol abuse and physical violence, despite having previously admitted to these issues in the CITC program, and was unable to recall or summarize any coping skills that he had learned in his anger management or parenting classes. Dr. Sperbeck described Victor as "evasive, inconsistent, defensive, [and] physically violent," and reported that he showed a "consistent lack of candor and high degree of deceptiveness."
14. An OCS social worker testified that Victor often failed to show up for scheduled meetings or respond to efforts to contact him and was "very difficult" to work with. She also testified that he "consistently reports that [the domestic violence is] due to [Charlotte's] drinking and solely her drinking, and that he is at no fault and has not done anything wrong."
15. Based on this evidence, the superior court found that: (1) Violet and Nora were children in need of aid because both parents had placed the children at a substantial risk of mental injury and physical harm as a result of domestic violence; (2) Victor had not remedied the domestic violence issues that placed his children at a substantial risk of harm; (3) OCS had made active efforts to provide remedial services to reunify the family; (4) Victor's continued custody would likely result in serious emotional or physical damage to both children; and (5) termination of both parents' rights was in the children's best interest.
16. Because Charlotte had previously relinquished her parental rights to Violet, the superior court made findings regarding her parental rights to Nora only. The court found that Charlotte's ability to parent had been substantially impaired by her addiction to alcohol and cocaine, which led her to engage in domestic violence, but that Charlotte had remedied the substance abuse issues that placed Nora at risk and her continued custody of Nora would not result in serious emotional or physical damage to the child.
17. Accordingly, the superior court concluded that OCS had met its burden with regard to Victor and terminated his parental rights to both children. The court concluded that OCS had failed to meet its burden with regard to Charlotte and denied the petition to terminate her parental rights to Nora.
The superior court found that OCS had not proven Victor had a substance abuse problem under AS 47.10.011(6), that the children had been abandoned under AS 47.10.011(1), or that they had been subjected to neglect under AS 47.10.011(9).
18. After Victor initiated this appeal and the parties completed their briefing, Charlotte regained custody of both children. On October 13, 2011, the superior court granted OCS's motion to release both children from OCS's supervision and place them in Charlotte's custody.
We granted Victor's unopposed motion to supplement the record on appeal with the superior court's October 13 order.
19. Victor appeals the termination of his parental rights, arguing the superior court erroneously found that (1) he had failed to remedy the conduct or conditions that posed a substantial risk of harm to his children and (2) the termination of his parental rights was in Nora's best interests. We review such findings for clear error. A finding is clearly erroneous if, when viewing the evidence in the light most favorable to the prevailing party, a review of the record leaves us with a definite and firm conviction that a mistake has been made.
Barbara P. v. State, Dep't of Health Soc. Servs., 234 P.3d 1245, 1253 (Alaska 2010) (failure to remedy conduct finding); Dashiell R. v. State, Dep't of Health Soc. Servs., 222 P.3d 841, 850 (Alaska 2009) (best interests finding).
Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 717 (Alaska 2003).
20. For the first challenged finding, the superior found that Victor "use[d] violence as a means of power and control stemming from jealousy" and that he had failed to remedy this conduct. The superior court based this finding on Victor's demonstrated reluctance to participate in his case plan and his failure to recognize or remedy his role in his abusive relationship with Charlotte. Specifically, the court found:
From his testimony, it is obvious that [Victor] still wants a continuing relationship with [Charlotte] and the children as a family. He has little insight into the problems that situation would pose. [Victor] does not recognize his role in the mutually abusive relationship; he believes he is the "victim" and that all would be well if [Charlotte] "fixes her stuff." The jealousy and the power and control dynamics still existed in May 2010. [Victor] has attended classes, but it does not appear that he has learned or assimilated the lessons. [Victor] has not remedied the conduct in the home that would continue to pose a substantial risk of harm to the children.
The court also questioned Victor's ability to parent, based on his lack of contact with his other children and his denial that Violet and Nora have special needs. The court concluded that "[Victor's] focus in the entire case has not been about the children, but about himself and how he has done nothing wrong, that this is an OCS conspiracy and he was railroaded. He does not see his part in his family's issues and his prominent role in its dysfunction."
21. Victor first argues that there is no evidence the May 2010 event involved domestic violence or that he was the aggressor in that incident. The court found that "[t]he jealousy and the power and control dynamics still existed in May 2010." The officer who responded to the incident and interviewed Charlotte testified that, according to Charlotte, Victor became upset because Charlotte was "on the internet conversing with some guys," he "raised his hand as if to hit her," and she thought he was going to hit her because he had abused her in the past. This testimony supports the court's finding that jealousy, control, and power — in other words, domestic violence — remained an issue for Victor in May 2010.
22. Victor next challenges the superior court's finding that he lacked insight into his role in the domestic violence dynamic, arguing that the court improperly relied on his desire for a continuing relationship with Charlotte and the children as evidence of his lack of insight. But the superior court did not base its finding on Victor's desire for a continuing relationship; rather, this finding was based on his lack of insight into the problems a continuing relationship would pose. The court found that Victor believes he is the victim and has failed to recognize his role in his mutually abusive relationship with Charlotte. Victor does not challenge these findings. Additionally, an OCS social worker testified that Victor "consistently reports that [the domestic violence is] due to [Charlotte's] drinking and solely her drinking, and that he is at no fault and has not done anything wrong." This testimony, combined with the superior court's uncontested findings, supports the court's finding that Victor lacked insight into his role in the domestic violence dynamic.
23. Victor next argues that the superior court improperly relied on a "generalized concern" regarding his ability to parent in determining that he had not remedied the conduct placing his children at a substantial risk of harm. Even assuming arguendo that this was an improper consideration, the superior court's finding that Victor failed to remedy his conduct is adequately supported by its other uncontested findings that he was reluctant to participate in his case plan and had failed to recognize or remedy his role in his abusive relationship with Charlotte.
Specifically, Victor argues that the superior court substituted the best interests inquiry under AS 47.10.088(c) for AS 47.10.088(b). He relies on Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177 (Alaska 2008), to argue that the superior court's generalized concern about his parenting ability was an improper consideration under the more restrictive best interests inquiry set forth in AS 47.10.088(b)(2).
24. Finally, Victor argues that if his relationship with Charlotte is over, then so is the conduct or conditions that resulted in a risk of harm to the children. Although the superior court found that Charlotte had ended her relationship with Victor, that does not change or affect its finding that Victor had failed to recognize his role in the domestic violence that placed his children at a substantial risk of harm or remedy his issues with jealousy, power, and control. Those issues did not cease to be issues simply because his relationship with Charlotte was over.
25. Thus, the record supports the superior court's finding that Victor failed to remedy the conduct and conditions that posed a substantial risk of harm to his children. That finding is not clearly erroneous.
26. Victor also challenges the superior court's finding that termination of his parental rights was in the children's best interests. The court based this finding on the fact that the children had lived with the same foster parent for their entire lives, in a home that was a "stable environment" where "their special needs [were] being addressed." The court found, in contrast, that neither Victor nor Charlotte had "shown that level of stability in meeting the needs of the children." Victor argues that terminating his parental rights to Nora while Charlotte's parental rights remain intact is not in Nora's best interests.
In his opening brief, Victor appealed the superior court's finding that termination of his parental rights was in Nora's best interests. In his reply brief, he extends his argument to include the superior court's finding that termination was in Violet's best interests. Generally, a party may not raise an issue for the first time in a reply brief. See Alaska Appellate Rule 212(c)(3); Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992). Even if we did review the superior court's finding that termination of Victor's parental rights was also in Violet's best interests based on the arguments that Victor raises with respect to Nora, those arguments would fail for the reasons discussed below.
27. Victor argues that the superior court's findings implicitly acknowledge that he and Charlotte will continue to have a relationship, and that if he continues to have contact with Nora (because Charlotte will continue to have a relationship with Nora) then it would be in Nora's best interests for OCS to continue providing services to both parents. This argument mischaracterizes the superior court's findings. The court expressly found that Charlotte had ended the relationship and any continuing relationship between them was merely one of convenience:
[Charlotte] recognizes the substantial difficulties in her relationship with [Victor] and has ended the relationship. There is an issue of whether [Charlotte] is still with [Victor], as she told Judicial Services to serve her at [Victor's] house on August 27, 2010. This court accepts her explanation of the events. . . . Rather than wanting a continuing relationship with [Victor], [Charlotte] sometimes uses her relationship with [Victor] as a convenience, such as having him provide her with transportation.
(Emphasis added). Charlotte testified that she does not plan on continuing a relationship with Victor because she now realizes domestic violence is not normal and their relationship was unhealthy. Her testimony supports the superior court's finding that the relationship has ended.
28. Victor next relies on A.B. v. State, Department of Health and Social Services to argue that terminating his parental rights, but not Charlotte's, is not in Nora's best interests because it denies Nora the right to receive child support and inheritance from him without freeing her for adoption and allowing her to regain such rights through adoptive parents. In A.B., the State petitioned to terminate the mother's parental rights while simultaneously promoting reunification of the father with the child, and the superior court granted the petition terminating the mother's rights. We held that we were "not persuaded that the superior court's best interests determination is supported under the unusual facts of this case," reasoning that "[w]ith her biological father as her custodian, losing these important [rights of inheritance from] her other natural parent would not appear to be in [the child's] best interests." We remanded to the superior court for additional findings regarding whether termination was in the child's best interests.
7 P.3d 946 (Alaska 2000).
Id. at 949.
Id. at 954-55.
Id. at 955.
In contrast, we affirmed the superior court's ruling in A.H. v. State, Department of Health and Social Services, where the State sought to terminate the parental rights of both parents but the superior court terminated only one parent's rights. We concluded the superior court's best interest finding under those
10 P.3d 1156, 1166 (Alaska 2000); see also S.H. v. State, Dep't of Health Soc. Servs., Div. Of Family Youth Servs., 42 P.3d 1119, 1125 (Alaska 2002).
circumstances was clearly supported by the record. Here, as in A.H., OCS petitioned to terminate both Victor's and Charlotte's parental rights to Nora, and the court found that termination of both parents' rights would be in Nora's best interest. However, the court ultimately denied the petition to terminate Charlotte's rights because OCS had failed to meet its burden on another required element — that her continued custody of Nora would likely result in serious emotional or physical damage to the child. This case is akin to A.H., not A.B.
A.H., 10 P.3d at 1166.
29. Finally, Victor argues that the termination order does not free Nora for adoption or other permanent placement, as required under AS 47.10.088(a). This statute provides that "the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement. . . ." We have stated that "[p]lacement with a non-terminated parent could be an `other permanent placement' under AS 47.10.088(a). . . ." Here, Charlotte has regained custody of both children. The superior court's termination order freed Nora for "other permanent placement" with a non-terminated parent.
AS 47.10.088(a) (emphasis added).
A.B., 7 P.3d at 954 n. 24.
30. Because the evidence supports the superior court's findings that Victor failed to remedy the conduct that posed a substantial risk of physical or mental harm to his children under AS 47.10.011(6) and (8), and that termination of his parental rights was in Nora's best interests, we AFFIRM the superior court's decision terminating his parental rights to both children.