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E.M. v. Alaska Division of Family and Youth Services (5/29/98), 959 P 2d 766
Notice: This opinion is subject to 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, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-7719
) Superior Court No.
v. ) 3AN 93-359 CP
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)
DIVISION OF FAMILY AND YOUTH )
Appellee. ) [No. 4994 - May 29, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Elizabeth Page Kennedy,
Anchorage, for Appellant. J. Stefan Otterson, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
E.M.'s parental rights to his young son B.M., an Indian
child, were terminated on May 28, 1996. Superior Court Judge Larry
D. Card found that B.M. was a child in need of aid (CINA) pursuant
to AS 47.10.010(a)(2)(F). [Fn. 1] Judge Card then made the
necessary findings to terminate E.M.'s parental rights pursuant to
AS 47.10.080(c)(3) and applicable provisions of the Indian Child
Welfare Act. E.M. appeals. We conclude that Judge Card's findings
are supported adequately by the evidence and affirm the termination
of parental rights.
II. FACTS AND PROCEEDINGS
B.M. was born on March 18, 1993, to E.M. (father) and
L.P.M. (mother). E.M. and L.P.M. were apparently 17 and 16 years
old at the time of B.M.'s birth. L.P.M. is a Native Alaskan and a
member of the Wales tribe. Accordingly, B.M. is an Indian child
and the requirements of the Indian Child Welfare Act of 1978
(ICWA), 25 U.S.C. sec.sec. 1901-03, 1911-23, 1951 (1994), apply to
B.M. was first brought to the attention of the Division
of Family and Youth Services (DFYS) when he was 13 days old, and
intensive in-home parenting services were provided for E.M. in July
of 1993 (evidently L.P.M. was in California). B.M. was removed
from E.M.'s custody on August 31, 1993, because E.M. left B.M. with
an aunt and never returned to pick him up. B.M. was placed in the
legal custody of DFYS, but E.M. was allowed to resume physical
custody. After B.M. was placed back in E.M.'s physical custody,
DFYS instituted a case plan that included home visits, the AFFECT
program, a public health nurse, and parenting classes, drug
screening, and urinalysis for both parents.
B.M. was again removed from E.M.'s custody on March 30,
1994, and has not been returned to either of his parents' custody
since that time. Corinne Bryant, the DFYS social worker assigned
to B.M.'s case at the time of his removal, asserted that the
culmination of a number of different factors, including the child
being left alone, reports of danger to the child from people in
E.M.'s home, and E.M.'s failure to follow the DFYS treatment plan,
led to the removal. In June 1994, Superior Court Judge Peter A.
Michalski found that B.M. was a child in need of aid pursuant to AS
47.10.010(a)(2)(A) and (F). [Fn. 2]
A new DFYS case plan, similar to the old one but with a
requirement of consistent visitation of B.M., was prepared on July
26, 1994. On September 13, 1994, Judge Michalski issued a
disposition order placing B.M. in the State's physical custody and
directing E.M. to comply with the DFYS case plan. The judge noted
that DFYS had indicated that it would move to terminate parental
rights if there was not substantial compliance with the DFYS case
plan within 30 days. He also specifically ordered E.M. to
a. Follow through on the out-patient treat-
ment that was recommended by the Salvation
Army Clitheroe Center [and] continue to do bi-weekly urine
analysis. b. Obtain a psychological evaluation if separately
ordered by the court, and follow all recommendations [(evaluation
was ordered November 23, 1994)]. c. Enroll in and complete
parenting classes. d. Enroll in and complete the Male Awareness
Program. e. Visit the child regularly.
These directives appear to be based on recommendations of DFYS and
the guardian ad litem, E. Genivee Bettine.
DFYS subsequently concluded that E.M. had refused to
comply with his case plan. In January 1995, the agency filed a
petition for termination of E.M.'s parental rights, alleging that
the circumstances justifying the original CINA determination still
E.M.'s termination hearing originally was scheduled for
April 1995 but was continued at the last minute because E.M.
scheduled a psychological evaluation for himself, and DFYS wanted
to wait for the results. The hearing was reset for October 11,
before Judge Card. Judge Card heard evidence on October 11, 12,
and 17; he then recessed proceedings for several months and
concluded the hearing on March 12 and 13 of 1996.
At the hearing, DFYS produced evidence showing that E.M.
had made little effort to comply with his case plan, had maintained
minimal contact with B.M., and had not progressed in his ability to
provide B.M. a safe and stable home. On May 28, 1996, Judge Card
issued an order finding that B.M. was a child in need of aid under
AS 47.10.010(a)(2)(F) by virtue of parental neglect and terminated
both L.P.M.'s and E.M.'s parental rights pursuant to AS
47.10.080(c)(3). [Fn. 3]
A. Standard of Review
This court applies the clearly erroneous standard when
reviewing a trial court's factual findings concerning the
termination of parental rights. See In re S.A., 912 P.2d 1235,
1237 (Alaska 1996). A trial court's findings will be declared
clearly erroneous if this court, after a review of the entire
record, is left with a definite and firm conviction that a mistake
has been made. See id. However, a determination of whether the
trial court's findings comport with the requirements of the CINA
statutes and rules involves a question of law and accordingly will
be reviewed de novo. See R.J.M. v. State, 946 P.2d 855, 861
(Alaska 1997); R.R. v. State, 919 P.2d 754, 755 n.1 (Alaska 1996);
Langdon v. Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987).
B. Statutory Framework
The statutes and rules governing termination of parental
rights require a number of determinations. Under AS
47.10.080(c)(3), termination is authorized
upon a showing in the adjudication by clear
and convincing evidence that there is a child in need of aid [CINA]
under AS 47.10.010(a) as a result of parental conduct and upon a
showing in the disposition by clear and convincing evidence that
the parental conduct is likely to continue to exist if there is no
termination of parental rights.
See also CINA Rule 15(c).
Pursuant to this statute, the court first determines if
there is clear and convincing evidence for a CINA adjudication
based on one of the six grounds stated in AS 47.10.010(a)(2)(A)-
(F). See Nada A. v. State, 660 P.2d 436, 439-40 (Alaska 1983).
Then the court determines, still using the clear and convincing
evidence standard, whether the child is in need of aid because of
parental conduct and whether the parental conduct is likely to
continue if parental rights are not terminated. See id. at 440;
A.M. v. State, 891 P.2d 815, 819 (Alaska 1995), overruled in part
by In re S.A., 912 P.2d at 1241.
In cases involving removal of a child from the home, CINA
Rule 15(g) further requires the court to find that "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 the home." See also 42 U.S.C. sec. 671(a)(15) (1994)
(requiring State plan for foster care and adoption assistance to
include reasonable efforts to keep the child in his home in order
for the State to receive AFDC payments). A more stringent
requirement applies under ICWA in cases involving Indian children.
See 25 U.S.C. sec. 1912(d) (incorporated in CINA Rule 17(c)(2)).
Under ICWA, before removing an Indian child from parental custody,
the court must find by a preponderance of the evidence 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."
Id.; see also CINA Rule 17(c)(2).
In addition, ICWA requires that, before terminating
parental rights in a case involving an Indian child, the court must
find "beyond a reasonable doubt, including the testimony of
qualified expert witnesses, that custody of the child by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child." 25 U.S.C. sec. 1912(f)
(incorporated in CINA Rule 18(c)(2)).
Last, in all children's proceedings involving disposition
orders entered under AS 47.10.080(c), including proceedings for
the termination of parental rights, AS 47.10.082(1) explicitly
requires the court to consider the best interests of the child.
See Nada A., 660 P.2d at 439-40.
C. The Superior Court Applied the Proper Legal Standards and
Its Findings Are Supported by the Evidence.
In his oral findings and written order terminating E.M.'s
parental rights to B.M., Judge Card stated that B.M. "was shown to
be a child in need of aid pursuant to AS 47.10.010(a)(2)(F) by
clear and convincing evidence on this date as a result of . . .
parental conduct." Judge Card also determined that "[t]here is
clear and convincing evidence that the parental conduct which
caused [B.M.] to be a child in need of aid is likely to continue if
the parental rights of [E.M.] are not terminated."
The judge went on to say:
I find that there is evidence beyond a reason-
able doubt, based on the expert testimonies
submitted, that the custody of [B.M.] by either parent is likely .
. . to result in serious emotional or physical damage. I would
note that the physical damage issue is more or less direct than the
issue of emotional [damage].
Judge Card further found "by a preponderance of the evidence [that]
there have been active efforts to provide remedial services to both
these parents, and they have proved unsuccessful as of today's
date." In connection with this finding, the judge emphasized that
DFYS had made "huge[,] almost embarrassing efforts"to provide
assistance to E.M. and L.P.M.
E.M. challenges the sufficiency of the evidence to
support these findings. However, our review of the evidence
convinces us that the findings are amply supported and are not
The testimony of Corinne Bryant, the social worker who
had B.M.'s case at the time of his permanent removal, Bettine,
B.M.'s guardian ad litem, and Renee Pagel, E.M.'s friend and the
grandmother of another one of E.M.'s children, supports Judge
Card's finding that B.M. continued to be a child in need of aid
under AS 47.10.010(a)(2)(F) by virtue of parental neglect. [Fn. 4]
Corrine Bryant explained the events and conduct leading
up to B.M.'s permanent removal in a pre-disposition report issued
on August 25, 1994, and in her testimony at trial. Bryant asserted
that the house was a mess and unsafe for a child when she visited
it; there were dangerous people in and out of the house and some of
them had threatened and attacked E.M. while B.M. was present; E.M.
wanted to buy a gun and leave the state for protection; E.M. would
not follow through with substance abuse treatment or day care
suggestions and was belligerent about those topics; in March 1994,
just before the removal, E.M. was missing appointments with the
public health nurse and B.M. appeared to be losing weight; and E.M.
would not listen to suggestions concerning the care of B.M. [Fn. 5]
Bettine's Guardian ad Litem report confirmed Corinne
Bryant's observations. In addition, Bettine testified that on one
of her visits to E.M.'s residence, she found that B.M., then an
infant, had been left at home alone.
Renee Pagel testified that when B.M. was in E.M.'s
custody prior to his removal to State custody by DFYS, he was left
alone on a number of occasions; on other occasions, he was left in
the care of anyone who happened to be present in E.M.'s apartment.
Pagel also described one occasion of domestic violence between E.M.
and L.P.M. that involved E.M.'s use of a knife.
Moreover, the court heard abundant evidence indicating
that, since his son's removal, E.M. had made little or no progress
in attempting to meet the requirements of his court-ordered case
plan. Dr. James Harper performed a psychological evaluation of
E.M. in April 1995, shortly before E.M.'s originally scheduled
termination hearing. Dr. Harper's testimony and initial report
supports the State's assertion that E.M.'s unstable conduct is
likely to continue and that B.M. will likely be harmed if he is
returned to E.M.
Dr. Harper reported that he did "not believe that [E.M.]
can parent his son effectively at the present time." Additionally
he observed "I do not believe that [E.M.] sees a need or is willing
to acknowledge his shortcomings, so I am not optimistic [that]
treatment would be helpful at this time." At trial, after being
informed of E.M.'s most recent living situation, Dr. Harper
testified that "I think [E.M.] is much more impulsive, continues to
choose peers who are less than desirable, [and] is not benefitting
from experience the way other young adults do."
This assessment was also supported by Brunhilde Eska, a
DFYS social worker who had worked on E.M.'s case and testified as
an expert witness. Eska agreed with Dr. Harper's negative
assessment of E.M.'s potential, stating that she had found "no
progress whatsoever, not even more stability." Eska testified
that, since his psychological evaluation, E.M. had not followed Dr.
Harper's recommendations; Eska also established that Dr. Harper's
recommendations were essentially the same as the original DFYS case
plan, which had been in place for a year and two months prior to
Dr. Harper's evaluation.
Further, according to Eska, DFYS records indicated that
E.M. had visited B.M. only six times between August 1995 and March
1996. And although E.M. eventually met the case plan's requirement
of completing a parent training class, he had never met the plan's
requirement of completing a Male Awareness Program and had
consistently failed to submit to regular urinalysis testing. [Fn.
Eska expressed the general opinion that E.M. was "still
not . . . putting [B.M.'s] welfare and interest ahead of [his]
own,"and that E.M. would not be able to provide a safe home for
B.M. Indeed, Eska's testimony raised concerns as to whether E.M.
was even capable of providing a stable home for himself: she
testified that throughout most of the time she had the case, E.M.
had failed to disclose where he lived and had given her no address
where he could be contacted. Eska thought that if B.M. were
returned to E.M., the child would probably end up back in DFYS
Echoing these concerns, Renee Pagel testified that, since
B.M.'s removal to DFYS custody, E.M. had been living in an
apartment with many other people: "there was guys, [sic] girls,
there were some runaway [sic]"; the apartment was overcrowded and
unclean, and there were alcohol bottles about the place. E.M. was
eventually evicted. The eviction complaint alleged that he had
numerous people staying with him, including three small children,
in very unsanitary conditions. [Fn. 7] According to Pagel, in July
1995, E.M. was involved in an altercation in which he was "a little
loaded and he swung at [someone]." Gregory Baker, a detective for
the Municipality of Anchorage, also testified that E.M. was
involved in a shooting incident in July 1995. E.M. lost his job
after these incidents.
Given the foregoing evidence, Judge Card's factual
findings are not clearly erroneous.
D. The Superior Court Did Not Err as a Matter of Law
on the Basis Used to Terminate E.M.'s Parental Rights.
E.M. nevertheless challenges the superior court's legal
conclusion that termination of parental rights was justified in
this case. E.M. alleges that the court's finding of neglect was
based merely on Judge Card's belief that E.M. was not getting his
life together fast enough and that B.M. simply could not afford to
wait any longer. E.M. criticizes Judge Card for basing his
termination decision on B.M.'s best interests, asserting that the
child's interests are not included among the statutory criteria
governing termination of parental rights. This assertion is
incorrect. Alaska Statute 47.10.082(1) explicitly requires the
court to consider the best interests of the child in all
dispositions under AS 47.10.080(c), including the termination of
parental rights. See AS 47.10.082(1); Nada A., 660 P.2d at 439-40.
E.M. further asserts that termination of his parental
rights is unjustified because he has never actually injured B.M.
E.M. implicitly asserts that without actual injury, there can be no
neglect. This assertion is incorrect as well. We see no reason
that a finding of neglect cannot be based on conduct creating an
imminent risk of serious injury. Here, the trial court properly
focused on the risk of future harm to B.M., rather than on the
infliction of past injury.
In deciding to terminate E.M.'s parental rights, Judge
Card essentially found that, despite assiduous remedial efforts by
DFYS over a two-year period, E.M.'s continuing failure to stabilize
his own life would almost certainly render him incapable of
providing B.M. a safe and stable home in the foreseeable future.
Judge Card's decision is both factually supported and legally
sound. [Fn. 8] Accordingly, we AFFIRM the order terminating E.M.'s
At the time of trial in this case, child in need of aid status
was defined in subsections (a)(2)(A)-(F) of AS 47.10.010.
Subsequently, the legislature repealed subsection (a)(1) of the
statute; the provisions of subsections (a)(2)(A)-(F) were retained
verbatim but were renumbered as AS 47.10.010(a)(1)-(6). AS
47.10.010(a)(6) is thus the current counterpart of former AS
47.10.010(a)(2)(F). For simplicity's sake, we will use the former
statutory numbering, which governed here.
At the time of this adjudication, AS 47.10.010(a)(2)(A)
provided that the court could find a minor to be a child in need of
aid as the result of the child "having no parent, guardian,
custodian, or relative caring or willing to provide care, including
physical abandonment by . . . both parents." Subsection (F)
provided that "the child having suffered substantial physical abuse
or neglect as a result of the conditions created by the child's
parent"would justify a CINA finding.
L.P.M. did not contest the termination of her parental rights.
Recently, in R.J.M. v. State, 946 P.2d 855, 862-68 (Alaska
1997), we held that CINA jurisdiction pursuant to AS
47.10.010(a)(2)(F) cannot be based solely on emotional neglect. We
construed "neglect,"as used in subsection (F), to mean physical
neglect. See id. at 867. Judge Card's finding of neglect under
subsection (F) does not differentiate between physical and
emotional neglect. However, E.M. does not claim that his CINA
adjudication was improperly based on emotional neglect. And Judge
Card's findings as a whole make it clear that his primary focus was
on the potential physical risk to B.M. Two especially noteworthy
points in this regard are Judge Card's finding beyond a reasonable
doubt, in compliance with 25 U.S.C. sec. 1912(f), that B.M. would
imminent harm if returned to E.M. and Judge Card's observation
"that the physical damage issue is more or less direct than the
issue of emotional [harm]."
Bryant also noted in her "Report for Child in Need of Aid"
that in mid-November of 1993, E.M. served 10 days in jail for
putting an unloaded gun to a person's head.
Eska summed up the efforts DFYS put into remedial services and
rehabilitative programs as follows:
We -- DFYS offered every and any services they
could think of. They referred them to counseling, to the MAP
program, to UA's, they made money available, we requested bus
passes, which were never picked up, we arranged for visits,
anything we could think of to make it possible for [B.M.] to be
returned to the custody of his parents.
In his briefs on appeal, E.M. acknowledges that he had no
money and was homeless at periods of time after B.M. was removed.
E.M. has separately argued that the superior court erred in
allowing the State to amend its witness list after E.M. moved for
a directed verdict near the conclusion of the State's case-in-
chief. Trial courts have broad discretion in ruling on such
issues. See Wright v. Vicaryous, 598 P.2d 490, 495 (Alaska 1979).
Our review of the record discloses neither an abuse of discretion
nor resulting prejudice to E.M.