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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. V.S.B. v. State, Dept. of Health & Social Services (12/21/2001) sp-5517
This has been WITHDRAWN - see Opinion # 5537
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
V.S.B., )
) Supreme Court No. S-9817
Appellant, )
) Superior Court No.
v. ) 4FA-97-284 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH )
AND SOCIAL SERVICES, ) [No. 5517 - December 21, 2001]
DIVISION OF FAMILY AND )
YOUTH SERVICES, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks, Mary E. Greene, Judge.
Appearances: Alex Koponen, Fairbanks, for
Appellant. D. Rebecca Snow, Assistant Attorney General, Fairbanks,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Vivian [Fn. 1] appeals the termination of parental rights
over her four children. She has been diagnosed with Bipolar
Disorder, which had previously made effective parenting difficult.
The State asserts, and Superior Court Judge Mary E. Greene agreed,
that despite the fact that Vivian is now stabilized on medication
for her mental illness, she is still unfit to serve as an adequate
parent for her four children, all of whom exhibit psychological
and/or developmental difficulties that require special attention.
Because all four children at issue are Indian children, the
standards of proof required by the Indian Child Welfare Act (ICWA)
apply. While Vivian made significant efforts at rehabilitation,
the superior court adequately examined the record and applied the
correct standards of proof in determining that it was in the best
interests of the children to terminate Vivian's parental rights.
Consequently, the decision of the superior court is affirmed.
II. FACTS AND PROCEEDINGS
A. Parties at Issue
Vivian, the appellant, is the mother of the four children
(Scott, Amy, Michael, and Veronica) in dispute. Keith, who had
been involved in the Division of Family and Youth Services (DFYS)
action and in the action in the superior court, is the father of
Scott, Amy, and Michael; the father of Veronica is deceased. Both
Vivian and Keith had their parental rights terminated in superior
court by Judge Mary E. Greene on August 29, 2000. Vivian has
appealed this decision; Keith has not.
1. Vivian
Vivian has suffered from a long history of mental
illness. The condition from which she suffers is Bipolar Disorder,
for which she is currently taking medication to control her
symptoms. Her first acute attack was precipitated by taking LSD in
1988 when she was fifteen and resulted in her being hospitalized,
first in the Fairbanks Memorial Hospital and then in the Alaska
Psychiatric Institute. Subsequent hospitalizations for mental
illness have coincided with the births of each of her four
children. The first such hospitalization occurred at the Alaska
Psychiatric Institute in October 1991, shortly after the birth of
her son Scott. Vivian had ceased taking her medication for her
mental illness in November 1990. Fearing that Vivian might not be
able to care for her baby because of her psychological condition,
the obstetrician both requested a psychiatric consultation and
contacted DFYS. Vivian was sent to the Alaska Psychiatric
Institute and later given lessons in child care.
In 1992 Vivian was hospitalized in the psychiatric ward
of Fairbanks Memorial Hospital while making accusations that Scott
was being sexually molested. Approximately six months after the
birth of Amy in June 1993, Vivian was again sent to the Alaska
Psychiatric Institute and the psychiatric ward of Fairbanks
Memorial Hospital. Upon the insistence of Keith, Vivian
discontinued use of her prescribed psychotropic medications during
her pregnancy, thus precipitating the recurrence of acute episodes
related to her Bipolar Disorder. Vivian had another acute episode
in 1994. As of September 1995, Vivian was again pregnant (with
Michael) and off her medication at the insistence of Keith.
Vivian left Keith in April 1996, took her three children
to a local women's shelter, and filed a domestic violence
restraining order against Keith. After becoming pregnant with
Veronica by a now-deceased third party, Vivian reconciled with
Keith. Vivian soon thereafter filed a second protective order
against him when he ordered her and her sister out of his house.
This second petition was filed in response to a domestic violence
incident in which Keith allegedly grabbed Vivian and threatened to
kill her after she kicked him in the nose during an argument.
Despite leaving Keith, Vivian did not take her mental illness
medications during her pregnancy. Soon after the birth of Veronica
on October 6, 1997, Vivian asked her mother to take care of her
children while she had a tubal ligation.
In January 1998 Vivian was arrested for assaulting her
niece, who at the time was babysitting the children. [Fn. 2] At
the time, all four children were living with Vivian, but only the
three older children were present during the assault, Veronica
having spent the night with her maternal grandmother. Upon her
release from jail, Vivian went again to the Alaska Psychiatric
Institute and then in April 1998 entered the Paul Williams House,
an assisted living facility in Fairbanks for patients with mental
illness. The Paul Williams House does not allow its patients to
have children live with them. Vivian left the Paul Williams House
in September 1999 and a month later moved in with Craig, whom she
married the following month.
2. The children
Scott, the oldest child, was almost nine at the time of
the superior court trial. He suffers from both Attention
Deficit/Hyperactivity Disorder and Post-Traumatic Stress Disorder.
Scott displays aggressiveness toward other children and poor
communications skills. In addition, he has serious psychological
issues surrounding sex: He has been both a victim and a
perpetrator of sexual abuse. Vivian reports that Scott told her
that he had been sexually assaulted by his father. Scott has been
sexually active on frequent occasions, including sexual intercourse
with a ten-year-old girl when he was four years old and sexual
intercourse with a fifteen-year-old female cousin when he was six.
Scott is considered a threat to other children and has already
sexually assaulted both another boy and his younger sister Amy.
Scott was frequently beaten as a child. In therapy sessions, Scott
described incidents of fighting between Vivian and Keith, including
Keith raping Vivian and sending her to a friend to be raped.
Scott is currently in foster care. He was initially
placed with his maternal grandparents, but later removed after the
grandparents violated rules about contact between Scott and Vivian.
All four children, including Scott, were placed for one night in an
Indian preference foster home but were removed because the
prospective foster parents did not feel they could handle children
with such severe disciplinary problems. Social workers feared
Scott would be a difficult foster placement because of his
behavioral problems. However, Scott was quickly placed with his
current foster family, to whom he appears to have developed some
attachment and who have expressed a desire to adopt him. The
family is non-Native. Social workers who worked with Scott
testified that he needs to be placed in a caring and supportive
environment, with only limited visitation with his parents, if he
is to develop into an emotionally well-functioning adult. Scott
has expressed some desire to visit with his mother and siblings.
Amy, seven years old at the time of trial, also exhibits
behavioral problems as a result of being a victim of sexual abuse.
She has a history of masturbating excessively in front of family
members. She has been sexually molested by Scott. A child
psychiatrist has also testified that Amy is physically aggressive
with other children and has difficulty establishing appropriate
physical boundaries. Amy is emotionally immature and has
developmental difficulties with regard to her social interactions.
Furthermore, she has Fetal Alcohol Effect and probably suffers from
Attention Deficit Disorder.
Social workers have testified that Amy will need
significant parental attention, in addition to continued therapy,
if she is to overcome her developmental difficulties. Amy is
currently in foster care with a non-Native family that has
expressed a desire to adopt her. [Fn. 3] This is her third foster
family, the first foster family having had Amy for only one night
and the second declining to adopt Amy after having her for eleven
months. Amy appears to have formed an emotional attachment to her
current foster family. In therapy sessions following visits by
Vivian, Amy has also expressed a desire to stay with Vivian.
Michael, who was four years old at the time of the trial,
exhibits hyperactivity and self-destructive behavior. He has shown
developmental delays in his speech and behavior. Michael also
throws violent temper tantrums and is aggressive toward other
children. His therapist believes Michael suffers from Post-
Traumatic Stress Disorder and Reactive Attachment Disorder, but has
ruled out Attention Deficit/Hyperactivity Disorder. Michael has
trouble sleeping at night, including uncontrolled bouts of
screaming, and is on medication for his sleeping difficulties.
Michael needs near-constant attention to ensure he is not a danger
either to others or to himself. Michael is currently placed with
a Native American foster family to whom he has gained some limited
form of attachment; he shows overall improvements in his behavior.
He has lived in multiple foster placements. Michael's current
foster family has expressed a desire to adopt him.
Veronica was only two and a half years old at the time of
trial. She suffers from a pronounced case of Fetal Alcohol
Syndrome, including both physical and mental manifestations. She
exhibits various developmental delays and will need continued
therapy for the foreseeable future. Veronica was initially placed
with relatives, but permanent adoption was not possible because the
specialized resources she needed were not available in the area.
Veronica is currently with an Alaska Native foster family who has
expressed an interest in adopting her. Veronica was initially a
rather aggressive child and displayed self-destructive behavior but
following her foster placement is able to get along better with
other children. Her development has almost caught up to that of a
normal two year old.
B. Procedural History
DFYS took emergency custody of Scott, Amy, and Michael
on December 19, 1997, with a petition for temporary custody filed
two days later and granted on January 13, 1998 (retroactive to
December 21, 1997). A petition for adjudication of a child in need
of aid was filed for these three children on February 24, 1998.
DFYS took emergency custody of Veronica on May 11, 1998 from her
maternal grandmother, with whom all four children had been placed
by DFYS, and filed a petition for adjudication the following day.
Vivian signed a stipulation for adjudication and
disposition covering all four children on June 1, 1998. This
stipulation laid out a three-phase plan whereby she could work
toward regaining custody of her children. The first phase of the
stipulation required that Vivian remain in the Paul Williams House,
meet regularly with her case manager and therapist, and remain on
her recommended medications. The second phase stated that after
Vivian "has been sufficiently stabilized in her mental health
treatment program" and received a substance abuse evaluation and
appropriate treatment, DFYS would begin to arrange visitation with
the children in consultation with each child's counselor. If
Vivian maintained stable mental health and completed the
recommended substance abuse treatment, DFYS would, in phase three,
refer her to parenting education programs with the goal of teaching
Vivian the necessary parenting skills to be a capable mother. As
the children began spending more time with Vivian, the parenting
education would be arranged in-home and tailored to the specific
needs of each child. Keith signed this stipulation on June 2,
1998, with similar requirements on his part if he were to be
reunited with his children.
Based upon the facts agreed to in the stipulation, the
court entered its findings and order of adjudication and
disposition based on stipulation on June 15, 1998, committing all
four children to the custody of DFYS for a period "not to exceed
one year" from June 2, 1998. DFYS filed a petition for termination
of parental rights on May 17, 1999. State custody over the
children was extended through the end of the trial, as the trial
could not be completed before the June 1 date.
A series of delays pushed back the date of the trial.
Trial had initially been scheduled for November 1999. In a
contested permanency hearing on December 3, 1999 the trial court
found the continued foster placements of the children to be in
their best interests. A conflict of interest with her first
attorney forced the court to appoint a new attorney for Vivian,
postponing the trial until February 2000. Just before trial was to
begin, the Native Village of Buckland granted membership in their
tribe to Vivian and all of her children and intervened in the case,
forcing the trial to be postponed for another month. [Fn. 4] The
trial finally took place over sixteen days between March 22 and
June 22, 2000. On July 28, 2000, Judge Greene presented her
decision orally, followed by written findings and order on August
29, 2000. Vivian appealed on September 19, 2000.
III. STANDARD OF REVIEW
The Alaska Supreme Court will not reverse a trial court's
factual findings in a parental rights termination case unless those
findings are "clearly erroneous." [Fn. 5] This standard is met if
this court is "left with the definite and firm conviction that a
mistake has been made." [Fn. 6] The issue of whether or not the
trial court's findings satisfy the requirements of the child in
need of aid (CINA) statutes is a question of law that is reviewed
de novo. [Fn. 7]
IV. DISCUSSION
A. The Arguments in Vivian's Brief Were Not So Cursory as to
be Waived.
The State asserts that Vivian's brief treats the points
of appeal in a cursory fashion and that those points should
therefore be waived. More specifically, the State points to the
fact that Vivian does not cite a single case in the brief and cites
to only two federal statutes, failing there to mention the relevant
related Alaska statutes. The State further alleges that Vivian's
brief, the discussion section of which covers only four pages,
contains only minimal exposition of its arguments. Finally, the
State claims that Vivian's brief "lack[s] serious discussion of the
evidentiary basis for her contentions."
While the State may be correct in its assertion that
Vivian's brief is rather poorly constructed, the quality of the
brief does not merit a determination that its points on appeal
should be waived. Although Vivian's brief does not cite any cases
in support of its arguments, it does provide an evidentiary basis
for its argument. We thus conclude that the treatment of the
issues is not so cursory that we should decline to consider the
points on appeal.
B. The Superior Court Correctly Found that the Four Children
Are Children in Need of Aid.
Before termination proceedings can be conducted, the
superior court must determine that the children are children in
need of aid under Alaska law. [Fn. 8] Vivian challenges the
determination that the four children are children in need of aid.
However, in the stipulation agreement signed by Vivian, she
admitted that the children are children in need of aid. [Fn. 9]
Vivian claims that the conduct placing the children in danger was
committed by Keith and not by Vivian. [Fn. 10] However, the
findings by the trial court do not support this conclusion.
The trial court found five bases for determining that the
four children fell under the Alaska CINA statutes. [Fn. 11]
Indeed, Judge Greene stated that "[t]hese children are among the
most damaged children" she had seen in twenty-five years "practicing
in the area of children's law." If the findings and evidence are
legally sufficient to satisfy any one of these five alternative
requirements, the termination will be affirmed. [Fn. 12] The
appropriate standard of proof is the "preponderance of evidence"
standard, [Fn. 13] which the court implicitly satisfied though it
did not say so explicitly. Whether the trial court's findings
comport with CINA requirements is a question of law and accordingly
reviewed de novo. [Fn. 14] We find that the record clearly
supports the conclusion that Vivian, through her actions and
inaction, caused the children to suffer harm in three ways (mental
injury, sexual abuse, and substantial risk of physical harm).
Accordingly, we do not reach the issue of whether the other two
statutory findings were clearly erroneous.
First and foremost, the children are children in need of
aid under AS 47.10.011(8)(A) because they have suffered "mental
injury" as a result of "conduct by or conditions created by the
parent." The severe mental injuries are detailed in the earlier
discussion of the various psychological problems each of the four
children faces. [Fn. 15] These injuries have been confirmed by
multiple therapists and social workers. Each child has different
psychological problems, though tendencies toward aggressive
behavior are common in all four. It appears clear that the mental
injuries suffered by each of the children have been caused or at
least exacerbated by living with Vivian. In short, there is ample
evidence of mental injury to justify bringing each child into state
custody.
Secondly, the sexual abuse experienced by Scott and Amy
makes them children in need of aid under AS 47.10.011(7). The
trial court made special note of the fact that Vivian expressed
concern that her children were being sexually abused and yet did
not take any steps to protect them, nor did the children view her
as someone who would protect them. No efforts were made to protect
Amy from Scott. The trial court notes that parental neglect of the
children contributed to the creation of this situation. Vivian
alleges that Scott told her that he was sexually abused by Keith.
Yet, she did little to prevent a recurrence in the future. [Fn. 16]
Due to the sexual abuse they have suffered and the absence of steps
by Vivian to prevent this abuse, Scott and Amy are children in need
of aid.
Finally, Scott, Amy, and Michael suffered "substantial
physical harm" or were placed at risk of "substantial physical harm"
while in the home and as such can be considered children in need of
aid under AS 47.10.011(6). Vivian admits to "spanking" the children
and Scott related to a therapist an incident in which Vivian
"punched" him for no reason. [Fn. 17] Scott also related having to
protect his mother from his father. Scott, Amy, and Michael were
all exposed to fighting between Keith and Vivian. Keith testified
that he feared Vivian would hurt the children, though he never did
see her actually hit the children. All of these establish by a
preponderance of evidence that the children had experienced or were
at risk of experiencing "serious physical harm" from Vivian prior
to being taken into custody by the State.
C. The Superior Court Correctly Found that the Parental
Rights of Vivian Should Be Terminated.
Because Vivian and each of her children were members of
the Native Village of Buckland, the standards of proof established
by ICWA at 25 U.S.C. sec. 1912 apply to proceedings for the
termination of parental rights. The key subsections for the
present case are: sec. 1912(d), [Fn. 18] establishing a
preponderance
of evidence standard for demonstration that remedial services and
rehabilitative programs have been provided and proven unsuccessful;
[Fn. 19] and sec. 1912(f), [Fn. 20] establishing a beyond a
reasonable
doubt standard for termination of parental rights.
1. sec. 1912(f)
Vivian does not appear to challenge the validity of the
trial court's findings under sec. 1912(f) and AS 47.10.088, despite
the relatively high "beyond a reasonable doubt" standard of proof
imposed on the State. [Fn. 21] The trial court did not explicitly
address the requirements of either sec. 1912(f) or AS 47.10.088,
but
did find that "there is evidence beyond a reasonable doubt that
each of these children would be likely to suffer serious physical
and especially emotional damage if placed in the custody of either
parent." The trial court then proceeded to rely upon expert
testimony to support its decision terminating parental rights.
Thus, the trial court satisfied ICWA with regard to the termination
of parental rights. A review of the record leads us to conclude
that this finding is not clearly erroneous.
In finding beyond a reasonable doubt that each child
"would be likely to suffer serious physical and especially
emotional damage if placed in the custody of either parent," Judge
Greene cited both the lack of an emotional connection between the
children and their mother and the harm that would be done to the
children by moving them out of their current foster families. This
finding is based not solely on Vivian's history of mental illness
but also on the "flat affect" with which she treats her children.
[Fn. 22] Consequently, the superior court found that it was in the
best interests of the children to terminate Vivian's parental
rights.
The abuse, both sexual and physical, suffered by Scott is
so traumatic that he would suffer emotional damage by being
returned to Vivian. Scott refuses to talk about Vivian or Keith in
therapy. Past emotional damage makes it highly unlikely that Scott
will form a healthy emotional attachment to Vivian. A child
psychiatrist concluded that Scott would regress to his previous
behavior if returned to either one of his parents. Furthermore,
Scott needs to be in a family where the parents understand how to
respond to his oversexualized behavior; it is doubtful that Vivian
could do this, whereas his current foster family has shown some
progress in this regard.
A social worker testified that Amy would be "devastated"
by being moved out of her stable and supportive foster home to live
with either of her parents, neither of whom understand Amy's
emotional needs or can provide a loving environment. Amy no longer
trusts Vivian to take care of her. Amy could lose the behavioral
strides she has made if placed back in an environment where she
does not trust her parents. Amy also has complicated emotional
problems and needs that would be difficult for Vivian to address.
Michael also needs special parenting skills to help
control his aggressive tendencies. This is best achieved by a
stable home environment. His self-destructive behavior requires
that he be monitored almost continuously. Michael has been unable
to form an emotional attachment to his mother. Michael would be
destabilized by any move, but especially by being placed with one
of his parents.
Veronica, because of her Fetal Alcohol Syndrome, requires
special treatment that Vivian would not be able to provide.
Veronica has no emotional attachment to her mother. She needs to
be placed in a supportive environment if she is to have continued
healthy emotional development.
Vivian alleges that the trial judge erred in finding that
expert parenting skills were required to handle the children. [Fn.
23] This is not an entirely fair characterization of the trial
court opinion, which states that while Vivian is indeed correct
that testimony exists suggesting the need for a "far better than
average parent," this does not necessarily imply a particular
expertise. As the State admits, none of the foster parents possess
particular training or skills in addressing the special needs of
these children. The trial court found, rather, that the
combination of the developmental difficulties experienced by the
children with the negative feelings they have for their parents
would overwhelm the ability of either parent to meet the needs of
the children and cause the children to feel insecure and unsafe.
We find this conclusion is not clearly erroneous and that return of
any of the children to Vivian would result in a serious risk of
emotional damage to that child.
2. sec. 1912(d)
Vivian explicitly challenges the trial court's findings
under sec. 1912(d). Vivian asserts that use of her medications had
reduced the risk of future episodes of her Bipolar Disorder
sufficiently to allow her to be an effective mother. Vivian sent
a handwritten letter to Judge Greene saying that she has been
attempting to get her life in order, both through participation in
state-ordered treatment programs and by her marriage to Craig, and
pleading with Judge Greene to allow her to retain custody of her
children. However, while Vivian has complied with the
rehabilitative efforts required of her, these efforts have failed
to be successful in turning Vivian into a suitable parent. Thus,
it is in the best interests of the children that Vivian's parental
rights be terminated.
The trial court found by a preponderance of evidence that
"[r]easonable and active efforts have been made to provide
appropriate remedial services" to Vivian and that these efforts had
been unsuccessful. Vivian actively participated in the three-phase
treatment program laid out for her by DFYS. She has attended
regular psychiatric appointments since her release from the Alaska
Psychiatric Institute in the spring of 1998. By continuing to take
her medication, which she has done, one doctor testified that
Vivian can reduce the risk of an episode of Bipolar Disorder down
to one mild episode in a ten-year span. She successfully completed
substance abuse assessments in December 1998 and December 1999.
She completed an alcohol education class in February 2000 and has
only occasionally used alcohol, though even limited use may have
negative interaction effects with her psychotropic medication.
Vivian participated in one-on-one parenting training for seven
months and has had regular visitation with her children. It is
clear, therefore, that active efforts at remedial services have
been provided to Vivian, a point which she concedes. Vivian has
done all that has been asked of her and there is nothing in the
record to suggest that Vivian is being insincere in her attempts at
rehabilitation. Furthermore, she has married someone who appears
to provide a more stable home setting than existed with Keith,
though this is a point of some dispute.
Despite these efforts, Vivian's parenting skills have
only marginally improved and are not sufficient to make her an
adequate parent. The therapist who provided her with parental
skills training testified that Vivian acted in a "child-like" manner
around the children and rarely showed any emotional connection to
them. She especially had problems dealing with Michael. A child
services worker, acting at the behest of DFYS, assessed Vivian as
not being capable of parenting any or all of her children and
recommended permanent placement of the children in homes other than
with their mother. This assessment was confirmed by a DFYS case
worker, who testified that despite her increased focus and recent
marriage Vivian was still incapable of parenting even one of her
children. A child psychiatrist testified that Vivian may face
difficulties responding to the negative feelings her children may
have toward her if returned. The psychiatrist treating Vivian for
her Bipolar Disorder testified that she should avoid "unduly
stressful" situations to avoid future incidents of decompensation
and admitted that the return of her children could be a source of
stress. The trial court further found that the marriage to Craig
was not sufficient to overcome the parenting difficulties
demonstrated by Vivian.
DFYS informed Vivian that completion of the recommended
treatment programs did not guarantee the return of her children.
This position is supported by Alaska law. In situations where the
parent has not participated in the rehabilitation programs offered,
termination of parental rights is clearly justified. [Fn. 24] In
the present case, though, Vivian has participated in the required
programs and continues to take her medication. Still, the State
can show that a parent has failed to remedy harmful conditions even
when the parent has not been given an opportunity to actually
parent his or her children. [Fn. 25] Compliance with treatment
plans does not guarantee that parental rights will not be
terminated because it cannot guarantee that adequate parenting
skills will be acquired from the treatment regimen. [Fn. 26] It is
entirely possible that there will be some improvement in overcoming
mental illness without there being sufficient improvement to
demonstrate adequate parenting skills. [Fn. 27] This is the case
with Vivian, who may have reasonably controlled her Bipolar
Disorder but has failed to acquire adequate parenting skills
despite state efforts to provide her with such.
V. CONCLUSION
Vivian provided a poorly crafted brief, but not one so
poor as to justify dismissing her appeal for cursory treatment.
Each of the four children was clearly a child in need of aid.
Judge Greene's finding that Vivian was incapable of being a
suitable parent for any of her children is not clearly erroneous.
Consequently, the decision of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
Pseudonyms have been used throughout this opinion for all
family members.
Footnote 2:
Vivian alleges in her brief that the niece had sexually abused
the children and that Vivian was just defending them. Vivian
previously testified, however, that she does not remember why she
got into a fight with her niece.
Footnote 3:
Vivian did not challenge the placement of Scott and Amy with
non-Native families. The trial court found that good cause existed
in both instances for deviating from ICWA placement preferences.
See 25 U.S.C. sec. 1915(a).
Footnote 4:
The Native Village of Buckland did not request a transfer of
jurisdiction over the foster placement or termination proceedings.
See 25 U.S.C. sec. 1911(c) ("In any State court proceeding for the
foster care placement of, or termination of parental rights to, an
Indian child, the Indian custodian of the child and the Indian
child's tribe shall have a right to intervene at any point in the
proceeding.").
Footnote 5:
H.C. v. State, Dep't of Health & Soc. Servs., 956 P.2d 477,
481 (Alaska 1998).
Footnote 6:
E.A. v. State, Dep't of Health & Soc. Servs., 623 P.2d 1210,
1212 (Alaska 1981).
Footnote 7:
A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950
(Alaska 2000).
Footnote 8:
AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
Footnote 9:
The conditions admitted to were those under then-AS
47.10.010(a)(6) (since amended in 1998), which covered physical
abuse and neglect. It is unclear if Vivian is asserting that the
children were never abused or neglected. Rather, she may be
asserting only that the children presently would not be at risk of
harm if placed with her.
Footnote 10:
Vivian further asserts that DFYS should have placed the
children in her care once it learned that she had remarried into a
stable home environment. This is relevant to the issue of Vivian's
rehabilitative efforts but not to the determination of the child in
need of aid status of the children.
Footnote 11:
These bases were AS 47.10.011(6) (substantial risk of physical
harm); AS 47.10.011(7) (sexual abuse); AS 47.10.011(8)(A) (mental
injury to the child); AS 47.10.011(9) (neglect); and AS
47.10.011(11) (mental illness of the parent contributing to a risk
of harm to the child).
Footnote 12:
See A.H. v. State, Dep't of Health & Soc. Servs., 10 P.3d
1156, 1161 (Alaska 2000); A.B. v. State, Dep't of Health & Soc.
Servs., 7 P.3d 946, 951 (Alaska 2000).
Footnote 13:
AS 47.10.011.
Footnote 14:
E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d 766,
768 (Alaska 1998) (citing R.J.M. v. State, 946 P.2d 855, 861
(Alaska 1997)).
Footnote 15:
See supra Part II.A.2.
Footnote 16:
Vivian did at one point take the children to a women's shelter
and has filed for protective orders against Keith but she
subsequently allowed the children to live with him.
Footnote 17:
Scott did not clearly distinguish here between his mother and
stepmother, stating only that his "mom" punched him. The superior
court appears to have interpreted this as a reference to Vivian,
which was also the impression of the social worker.
Footnote 18:
25 U.S.C. sec. 1912(d) states:
Any party seeking to effect a foster care
placement of, or termination of parental rights to, an Indian child
under State law shall satisfy the court 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.
Footnote 19:
K.N. v. State, 856 P.2d 468, 476 (Alaska 1993).
Footnote 20:
25 U.S.C. sec. 1912(f) states:
No termination of parental rights may be
ordered in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody
of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
Footnote 21:
Because the children are Indian children, the State must
satisfy the "reasonable doubt" standard established by ICWA, 25
U.S.C. sec. 1912(f). The procedures for termination of parental
rights are set forth in AS 47.10.088(a)(1)(B) and require, in
pertinent part, that
the parent (i) has not remedied the conduct
or conditions in the home that place the child at substantial risk
of harm; or (ii) has failed, within a reasonable time, to remedy
the conduct or conditions in the home that place the child in
substantial risk so that returning the child to the parent would
place the child at substantial risk of physical or mental injury.
Footnote 22:
Mental illness, absent related conduct, cannot be a basis for
termination of parental rights. In re J.W., 921 P.2d 604, 607
(Alaska 1996) (citing K.N. v. State, 856 P.2d 468, 475 (Alaska
1993) and Nada A. v. State, 660 P.2d 436, 440 (Alaska 1983)).
However, when continued mental illness is linked with past
detrimental behavior, it can serve as a basis for termination of
parental rights. J.W., 921 P.2d at 608 (citing K.N., 856 P.2d at
475). Vivian's illness has resulted in repeated hospitalizations
that have restricted her ability to care for her children. Vivian
left Veronica with Vivian's parents, even though she later
acknowledged that they were too old to care for a small baby. This
placed Veronica at risk of physical harm or mental injury.
Furthermore, the acute episodes of Vivian's Bipolar Disorder, due
to ceasing to take her medications while pregnant, resulted in
periods of decompensation that led to some of the domestic violence
incidents with Keith, thus placing the children in further danger.
Because Vivian is now taking medication for her mental illness,
there is a possibility that she will not in the future have any
more psychotic episodes. However, it was not improper for the
trial court to recognize this as a risk. Vivian's mental illness,
when coupled with her past actions, is such that she cannot regain
custody of her children without likely causing them continued
mental injury. Furthermore, removal from the stability of their
foster families would cause additional mental injury to the
children.
Footnote 23:
Vivian also contends that because "any" placement of the
children would result in emotional trauma there is no reason why
they should not be reunited with their mother. In light of the
ample evidence already discussed of the progress that each child
has made with his or her foster parent, this assertion is clearly
incorrect.
Footnote 24:
T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089,
1093 (Alaska 2001) (affirming a termination of parental rights "in
light of [the mother's] forgone opportunities to remedy her conduct
in the preceding seven months"); A.B. v. State, Dep't of Health &
Soc. Servs., 7 P.3d 946, 951-52 (Alaska 2000) (affirming a
termination of parental rights because mother "failed to
participate" in several components of her reunification plan). A
similar termination of parental rights is justified for a failure
to take medication to control one's aberrant behaviors. See A.H.
v. State, Dep't of Health & Soc. Servs., 10 P.3d 1156, 1163 (Alaska
2000) (holding that failure to take medication to control mental
illness placed children at a substantial risk of continued harm).
Footnote 25:
A.H. v. State, 10 P.3d at 1166.
Footnote 26:
In re T.W.R., 887 P.2d 941, 945 (Alaska 1994), overruled on
other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).
Footnote 27:
In re T.W.R., 887 P.2d at 946-47.