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In the Matter of T.W.R., J.P.M., and P.S.R. (12/23/94), 887 P 2d 941
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-5591
In the Matter of )
T.W.R., J.P.M., and P.S.R., ) Superior Court No.
Minors. ) 4FA-S90-116 CP
O P I N I O N
[No. 4157 - December 23, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Richard D. Savell, Judge.
Appearances: James M. Hackett,
Fairbanks, for Appellant. Scott Davis,
Assistant Attorney General, Fairbanks, and
Charles E. Cole, Attorney General, Juneau,
for Appellee. Thomas E. Fenton, Fairbanks,
Guardian Ad Litem.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices,
and Bryner, Justice pro tem.*
After the State claimed that two of her children were
children in need of aid and took custody of them, T.R. (the
mother) underwent parenting education. When the State concluded
that her progress was inadequate, the superior court allowed the
State to take custody of the third child, and ultimately
terminated T.R.'s parental rights as to all three children. T.R.
now appeals. We affirm.
II. FACTS AND PROCEEDINGS
At the center of this case are three boys: J.P.M.,
born June 2, 1985; T.W.R., born August 25, 1988; and P.S.R., born
April 11, 1991. R.R. is the natural father of T.W.R. and P.S.R.
K.M. is the natural father of J.P.M. R.R. relinquished his
parental rights to T.W.R. and P.S.R. K.M. did not oppose the
State's efforts at any stage of the proceedings, and purportedly
told the State that he would consent to adoption by J.P.M.'s
foster parents. The mother asserts that her sons should be
returned to her custody.
On July 27, 1990, the Alaska Department of Health &
Social Services (the Department) filed a petition for temporary
custody of T.W.R. and J.P.M., alleging that they were children in
need of aid (CINA):
The parents have not been meeting
physical, mental, emotional and social needs
of their children which has resulted in both
children failing to thrive and serious
developmental delays. The conditions of
filth the children live in are to the extent
that even after being in alternative care for
a week upon being examined by Dr. Bergeson,
[T.W.R.] still has cradle cap and a diaper
rash, and [J.P.M.] is off the chart in the
past 2 months (no growth).
The petition was signed by Kim L. Brewis, the social worker who
had been handling the case.
Brewis, T.R., and R.R.1 stipulated to temporary custody
until October 27, 1990, and acknowledged that "active
participation in individual counseling and progress toward
addressing the issues"would be necessary if there were to be any
hope of the boys being released from state custody. They also
acknowledged that the decision whether to return the boys to the
parental home would be up to the Department. Under the
stipulation, the parents would attend parenting classes, and
would be allowed regularly scheduled visits with the boys,
arranged by Brewis.
On November 20, 1990, the Department filed a petition
for adjudication of CINA status and for temporary custody of
T.W.R. and J.P.M. for a period not to exceed two years. The
The parents are unable to meet the
physical, mental, emotional, and social needs
of their children which has resulted in both
children failing to thrive and serious
developmental delays. [R.R.] is presently
incarcerated at [Fairbanks] Correctional
Center and [the mother] is unable at this
time to meet the needs of her children.
Everyone involved2 signed a second stipulation waiving a hearing
and agreeing that an additional one year of state custody would
be in the best interests of the children. R.R. and the mother
reaffirmed their willingness to undergo parenting classes and
counseling. The superior court entered an order adjudging the
children to be in need of aid, and placing them in the
Department's custody for a period not to exceed one year.
On November 20, 1991, the Department petitioned for
another extension, this time for two years. This petition
suggested that R.R. was the primary threat to the children's well-
[R.R. and the mother] have not
successfully dealt with the abuse their
children suffered in counseling. We believe
the children are still at risk of being
harmed and that [the mother] is unable to
protect her children if [R.R.] intended to do
them harm. We believe further services are
necessary to assure the children's [safety].
Services are to include anger and stress
management, continued individual and joint
counseling, foster care for the minors, and
further parenting education.
Brewis's annual report recommended continuation of the
status quo, and listed the expected date of the children's return
to the parental home as "[u]ncertain and dependent on the parents
[sic] understanding and meeting the needs of their children and
providing a safe and nurturing home for them." The guardian ad
litem (GAL) filed a report that also placed blame on R.R.,
quoting a psychological profile of him that stated that all
parties would have "blood on their hands" if the boys were
In January 1992, T.R., R.R., and K.M. stipulated to
another year of state custody, and the superior court entered an
order consistent with that stipulation. The mother requested
overnight visits. Brewis filed an affidavit on April 6, 1992
We do not believe substantial
progress has been made by [R.R.] in complying
with the terms of the stipulation.
[If R.R. were present,] [w]e do
not believe [the mother] would supervise
closely enough and would be unable to
overrule [R.R.] in the children's behalf to
protect them if necessary.
The superior court ordered the Department to permit an overnight
visitation between T.R. and the children "provided that [R.R.] is
not in the home and has no contact with the children."
On June 24, 1992, R.R. filed a relinquishment of
parental rights to T.W.R. On the same day, the Department filed
a petition for temporary custody of the third son, P.S.R., and
for a CINA determination as to P.S.R. The petition stated that
P.S.R. had been ill for approximately two months, and that T.R.
and R.R. appeared "to be unable to provide the physical and
emotional nurturance and or the medical care required for the
minor to recover." T.R. did not oppose thirty-day temporary
custody for the Department. The superior court granted the
Department temporary custody for thirty days.
Thereafter T.R. moved for regular unsupervised
visitations. The GAL and the Department opposed this motion.
The GAL informed the court, additionally, that P.S.R. was failing
to thrive, and that the GAL believed that T.R. was unable to care
for any of her children. Therefore, the GAL recommended
termination of T.R.'s parental rights. As noted above, until
that point, the goal of T.R. and the State had been the return of
the boys to T.R.
A temporary custody hearing was then held, at which the
parties requested a trial on the issue of termination of T.R.'s
parental rights. The parties also stipulated to an extension of
state custody until the conclusion of the trial. The case was
set for trial for the week of November 16, 1992, and temporary
custody was extended through the superior court's resolution of
the termination question.
R.R. filed a second relinquishment of parental rights,
this time to both T.W.R. and P.S.R., and the superior court
ordered the rights relinquished. On September 21, 1992, the
Department filed a petition seeking an adjudication of P.S.R.'s
CINA status, and requesting temporary custody for a period not to
exceed two years. On the same day, the Department also filed a
petition asking the superior court to terminate the parental
rights of K.M. and T.R., on the basis that K.M. had no interest
in maintaining a parent-child relationship with J.P.M. and that
T.R. was unable to meet her children's needs. The GAL agreed,
finding that all of the children had failed to thrive under
T.R.'s care, and concluding that T.R. "learned nothing from all
of the services provided to her."
After a trial, the superior court entered an order
adjudicating P.S.R. to be a child in need of aid, and terminating
T.R.'s parental rights as to all three boys. It found by clear
and convincing evidence that each of the children was a child in
need of aid. While acknowledging that the mother loved her
children, the superior court concluded that she could not meet
their needs, and that there were no other family members willing
and able to give the three children an appropriate level of care.
T.R. then filed notice of appeal. On appeal, T.R. argues that:
(1) the superior court failed to make sufficient findings to
satisfy CINA Rule 15(g); (2) she complied with the treatment
plans; (3) she was denied substantive due process of law; (4) the
term "failure to thrive"is unconstitutionally vague; and (5) the
superior court erred when it found that her sons were children in
need of aid and that this condition would continue indefinitely
if they were left in T.R.'s care.
A. Standard of Review
We interpret statutory language de novo. Langdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987). When the
superior court has determined that a minor is a child in need of
aid, we will overturn the factual findings in support of that
determination only if they are clearly erroneous. A.H. v. State,
779 P.2d 1229, 1231 (Alaska 1989). Factual findings are clearly
erroneous if, after reviewing the evidence, we are left with the
definite and firm conviction that the trial court has made a
mistake. Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994).
B. CINA Rule 15(g)
T.R. argues that the superior court's findings were
inadequate under CINA Rule 15(g) as interpreted by In re J.L.F.,
828 P.2d 166 (Alaska 1992). Rule 15(g) states:
Additional Findings. In any case in
which the court has authorized the Department
to remove the child from the child's home, or
continued a previous order for removal, the
court shall make findings pursuant to 42
U.S.C. 671(a)(15) as to whether, under the
circumstances of the case, reasonable efforts
were made to prevent or eliminate the need
for removal of the child from the home and to
make it possible for the child to return to
In J.L.F., we held that Rule 15(g) requires an explicit finding
of reasonableness. J.L.F., 828 P.2d at 172. There, the superior
court made no mention of the reasonableness of the treatment
plan, noting simply that the mother had complied with the plan
but was still unable to care for her children. See In re J.L.F.,
No. 3AN 88-589/590 CP (Alaska Super. 1990). We therefore
remanded the case to the superior court for such a finding.
J.L.F., 828 P.2d at 172.
Here the superior court was aware of its
responsibilities and adequately complied with Rule 15(g). Its
January 1992 order, as amended, stated that the Department was
"making reasonable efforts to make it possible for the children
to be returned to their parental home." In its findings relating
to, and order for, temporary custody of P.S.R., the superior
court stated that "[r]easonable efforts have been made to avoid
the need for removal of the child from the home." Additionally,
the superior court made a more general oral finding in reference
to all three boys:
I believe these findings address
the facts, the burden, the availability of
what's been, the services, the unavailability
of the family. If I've not stated it
expressly, reasonable efforts, extensive
efforts were made by a wealth of people.
(Emphasis added). We therefore conclude that the superior
court's findings satisfy CINA Rule 15(g).
C. Compliance with Treatment Plans
T.R. argues that she complied with her treatment plans.
That, however, does not make the outcome below erroneous. In its
findings the superior court acknowledged that T.R. had been
complying with the treatment plan, but concluded that her efforts
had failed to translate into adequate parenting skills.
D. The Finding That the Children Were in Need of Aid
In order to terminate parental rights under AS
47.10.080, a court must find by clear and convincing evidence (1)
that there is a child in need of aid under AS 47.10.010(a)(2) as
a result of parental conduct, and (2) that the parental conduct
causing the child to be in need of aid is likely to continue.
K.T.E. v. State, 689 P.2d 472 (Alaska 1984). The superior court
found that all three boys were children in need of aid pursuant
to AS 47.10.010(a)(2)(A), (B) and (C) based on clear and
convincing evidence.3 A finding under any of these sections
alone is enough for CINA status.4
1. No Parent Willing to Provide Care
T.R. states that "[o]bviously, the mother was (is)
'caring' and 'willing to provide care' for her sons." This court
has given AS 47.10.010(a)(2)(A) a broader interpretation than
simple unwillingness to care: "[A] finding of inability to care
would be grounds for jurisdiction under subsection (2)(A)
. . . ." J.L.F., 828 P.2d at 170.
The superior court found by clear and convincing
evidence that T.R. was unable to care for her minor children.
They all had serious physical, social, and cognitive problems.
For example: at times they were filthy and smelled of urine and
excrement; while in the care of T.R., J.P.M.'s physical
development was poor; T.W.R. was sick and listless when he left
his mother's care; and J.P.M. showed indications of attention
deficit disorder, the signs of which suggested that it was
"situational"rather than genetic. These conditions changed
dramatically after the children entered foster care.
There was also evidence that the children's social
development lagged behind that of their peers. T.W.R. was very
quiet. J.P.M. and T.W.R. were violent with each other; early in
their foster care, the foster parents observed J.P.M. say "me
kill you"and try to choke T.W.R. The boys had serious academic
problems while they lived with their mother. Once again, the
boys made significant progress with foster care.
2. Medical Attention
The superior court also concluded that T.R. had
knowingly failed to provide the medical treatment the children
needed. Although T.R. lists actions she took, medical and
otherwise, to care for her sons, the relevant concern under AS
47.10.010(a)(2)(B) is whether the children were in need of
treatment that T.R. knowingly failed to provide. No party is
claiming that T.R. always failed to care for her sons, only that
there were enough instances of such failures to raise questions
concerning her fitness as a parent.
Subsection (B) speaks to physical and emotional
neglect. There is abundant evidence in the record of both.
T.W.R had cradle cap and a rash over his whole body. J.P.M. was
anemic. He had emotional problems as well, being diagnosed as
suffering from emotional dwarfism, a non-organic form of failure
to thrive. Doctors worried that all of T.R.'s children might be
failing to thrive.5 Yet they all made rapid gains after being
taken from T.R.'s care and placed in foster homes. In addition
to the physical neglect discussed above, Dr. Bergeson found a
rectal fissure and suspected sexual abuse of P.S.R., though he
could not be certain.
T.R. also states that Dr. Andreassen, the primary care
physician for the boys, "never had any concern that the mother
was neglecting or abusing her sons." However, it was not
erroneous for the superior court to attach more weight to the
testimony of the witnesses who described the signs of neglect --
and later improvement -- that they observed. "[A]ssessing
witness credibility is a trial-court function" and a superior
court which credits one version over another is acting within its
discretion. Hanlon v. Hanlon, 871 P.2d 229, 232 (Alaska 1994);
Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988).
E. The Likelihood That the Mother's Neglect Would
The superior court's finding that the mother's neglect
was likely to continue was not clearly erroneous. The court
addressed this second prong, required by AS 47.10.080(c)(3), by
finding by clear and convincing evidence that T.R.'s parental
conduct, which caused the three boys to be children in need of
aid, was likely to continue if her parental rights were not
terminated.6 Although it is undisputed that T.R. complied
with her case plans, as noted above, such compliance does not
ensure that she could provide the children with appropriate
levels of care. Despite the fact that T.R. showed some
improvement after several years of assistance, the court did not
exceed its authority by holding that she did not progress enough.
See, e.g., R.C. v. State, 760 P.2d 501 (Alaska 1988). T.R.'s
progress had been minimal. Social workers who attempted to
assist T.R. testified that she had a very limited ability to
integrate new concepts into her relationships with her children.
Although T.R. showed some improvement after several years of
assistance, her progress overall was "minimal." She was
described as a very anxious woman, and this anxiety interfered
with all aspects of her life. Her divorce eliminated one source
of anxiety, but not the more basic problems with her parenting
In a July 1992 affidavit, Brewis stated that T.R. had
difficultly focusing her attention on the boys during visits.
The affidavit documented numerous examples of neglect, and
provided strong evidence that even after social workers had given
her years of assistance and her husband had left, T.R. remained
unable to care for her children.
The GAL stated that T.R. had "learned nothing"from all
the counseling the Department gave her. Perhaps the strongest
evidence that it was unlikely she would ever be able to take
proper care of the children was that two years after the
Department intervened, she was neglecting P.S.R., the youngest
F. Substantive Due Process
Finally, we address T.R.'s argument that the State
denied her substantive due process of law by discontinuing
services in early July 1992, despite some indications that the
situation was improving. Her argument is not entirely clear, and
she cites to no authority demonstrating that any of the State's
actions constituted a violation of substantive due process.
This court has held that "[t]he private interest of a
parent whose parental rights may be terminated is of the highest
order." J.L.F., 828 P.2d at 170; see also In re K.L.J., 813 P.2d
276, 279 (Alaska 1991). However, parental rights may be
terminated where such steps are necessary to protect the welfare,
health and even lives of the children. This is a situation where
the State's interest in the welfare of the children involved,
outweighs the interest of the parents. The superior court found
by clear and convincing evidence that despite her progress, T.R.
had demonstrated an inability to care for her children which
could not be cured in the foreseeable future or soon enough to
allow her to care for her children without exposing them to a
risk of abuse and neglect. In such a situation it is not
arbitrary to terminate parental rights.7
In addition, T.R. argues that the Department's decision
to take emergency custody of P.S.R. on June 24, 1992 deprived her
of substantive due process. She waived this argument by agreeing
to temporary custody.8
The record furnishes sufficient evidence of neglect
such that we are not left with a definite and firm conviction
that the superior court erred in any of its findings of fact or
in its ultimate conclusion that T.R.'s parental rights should be
terminated. We therefore AFFIRM the termination decision of the
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 In the stipulation, the parents waived their right to
2 This included the mother, her attorney, R.R., his
attorney, K.M., the guardian ad litem, Brewis, and the
Department's attorney. K.M. waived his right to counsel.
3 Alaska Statute 47.10.010(a)(2)(A)-(C) provides that a
minor may be a child in need of aid as a result of:
(A) the child being habitually
absent from home or refusing to accept
available care, or having no parent,
guardian, custodian, or relative caring or
willing to provide care, including physical
(i) both parents,
(ii) the surviving parent, or
(iii) one parent if the other
parent's rights and responsibilities have
been terminated under AS 25.23.180(c) or AS
47.10.080 or voluntarily relinquished;
(B) the child being in need of
medical treatment to cure, alleviate, or
prevent substantial physical harm, or in need
of treatment for mental harm as evidenced by
failure to thrive, severe anxiety,
depression, withdrawal, or untoward
aggressive behavior or hostility toward
others, and the child's parent, guardian, or
custodian has knowingly failed to provide the
(C) the child having suffered
substantial physical harm or if there is an
imminent and substantial risk that the child
will suffer such harm as a result of the
actions done by or conditions created by the
child's parent, guardian, or custodian or the
failure of the parent, guardian, or custodian
adequately to supervise the child . . . .
4 Because we hold infra that the superior court was
correct in finding CINA status under subsections AS
47.10.010(a)(2)(A) and (B), it is unnecessary to consider whether
the superior court erred in finding that CINA status was
conferred under subsection (C).
5 T.R. argues that the term "failure to thrive" is
unconstitutionally vague. The superior court, however, based its
ruling on a wide variety of physical and emotional harm that it
found to have occurred and to be likely to continue if custody of
the boys remained with T.R. Thus, even if this portion of the
statute were found to be void for vagueness, CINA status would
still be appropriate under AS 47.10.010(a)(2)(B). Since a
favorable ruling on this point would not affect the outcome of
the case, we need not address this contention.
6 One of the purposes of Title 47 of the Alaska
Statutes is to secure care and guidance for each child,
preferably in the child's own home. This policy is stated in AS
Purpose and policy relating to children. The
purpose of this title as it relates to
children is to secure for each child the care
and guidance, preferably in the child's own
home, that will serve the moral, emotional,
mental, and physical welfare of the child and
the best interests of the community; to
preserve and strengthen the child's family
ties unless efforts to preserve and
strengthen the ties are likely to result in
physical or emotional damage to the child,
removing the child from the custody of the
parents only as a last resort when the
child's welfare or safety or the protection
of the public cannot be adequately
safeguarded without removal; and when the
child is removed from the family, to secure
for the child adequate custody and care and
adequate planning for permanent placement of
T.R. briefly argues that the superior court failed to take AS
47.05.060 into account. However, we believe that the superior
court's determination that T.R. was, and would likely continue to
be, unable to care for her children is consistent with AS
7 The factual basis of the decision to terminate support
services and parental rights is discussed supra in Parts III.E.
8 Additionally, there does appear to be a factual basis
for the decision. Alaska Statute 47.10.142(a)(2) authorizes the
Department to take emergency custody of a minor upon discovering
that "the minor has been grossly neglected by the minor's parents
or guardian . . . and the department determines that immediate
removal from the minor's surroundings is necessary to protect the
minor's life or provide immediate necessary medical attention."
There was evidence the mother neglected P.S.R.'s
emotional, nutritional, and medical needs. His condition
improved markedly once he entered foster care.