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V.S.B. v. State (2/15/2002) sp-5537
V.S.B. v. State (2/15/2002) sp-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. 5537 - February 15, 2002]
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
Vivian1 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.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.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.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."5 This standard is
met if this court is "left with the definite and firm conviction
that a mistake has been made."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.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.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.9 Vivian
claims that the conduct placing the children in danger was
committed by Keith and not by Vivian.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.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.12 The appropriate
standard of proof is the "clear and convincing evidence"
standard.13 Although the trial court did not explicitly say so,
it implicitly found that this standard was satisfied by expressly
stating, after setting out its CINA findings, that "[t]he court
further finds 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." (Emphasis added.) In context, this finding,
though made under ICWA, effectively subsumes the required state
law CINA findings. Whether the trial court's findings comport
with CINA requirements is a question of law and accordingly
reviewed de novo.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.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.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.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 clear and convincing 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. 1912 apply to proceedings for
the termination of parental rights. The key subsections for the
present case are: 1912(d),18 establishing a preponderance of
evidence standard for demonstration that remedial services and
rehabilitative programs have been provided and proven
unsuccessful;19 and 1912(f),20 establishing a beyond a reasonable
doubt standard for termination of parental rights.
1. 1912(f)
Vivian does not appear to challenge the validity of the
trial court's findings under 1912(f) and AS 47.10.088, despite
the relatively high "beyond a reasonable doubt" standard of proof
imposed on the State.21 The trial court did not explicitly
address the requirements of either 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.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.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. 1912(d)
Vivian explicitly challenges the trial court's findings
under 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.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.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.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.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.
In the Supreme Court of the State of Alaska
V.S.B., )
) Supreme Court No. S-09817
Appellant(s), )
v. ) Order
) Petition for Rehearing
State of Alaska, )
)
Appellee(s).) Date of
Order: 2/15/02
)
Trial Court Case # 4FA-97-00284CP
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and
Carpeneti, Justices.
On consideration of the Petition for Rehearing, filed on
12/27/01,
It is Ordered:
1. The Petition for Rehearing is Granted.
2. Opinion No. 5517, issued on 12/21/01, is Withdrawn.
3. Opinion No. 5537, is issued on this date in its place.
The revised opinion incorporates the following changes:
(a)The sentence on lines 2-4 of page 11 is deleted and the
following text is inserted:
. . . The appropriate standard of proof is the "clear
and convincing evidence" standard.13 Although the trial
court did not explicitly say so, it implicitly found
that this standard was satisfied by expressly stating,
after setting out its CINA findings, that "[t]he court
further finds 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." (Emphasis added.) In context, this finding,
though made under ICWA, effectively subsumes the
required state law CINA findings.
Supreme Court Order
S-09817, V.S.B. v. State
Page 2
(b)The text at line 2 of page 13 (formerly line 18 of page
12) is modified as follows:
. . . All of these establish by clear and convincing
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.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
Judge Greene
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
Alex Koponen
Attorney at Law
710 Chena Ridge
Fairbanks AK 99709
D Rebecca Snow
Asst Attorney General
100 Cushman Street #400
Fairbanks AK 99701
Robert S Noreen
Attorney at Law
402 Seventh Avenue
Fairbanks AK 99701
_______________________________
1 Pseudonyms have been used throughout this opinion for
all family members.
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.
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. 1915(a).
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. 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.").
5 H.C. v. State, Dep't of Health & Soc. Servs., 956 P.2d
477, 481 (Alaska 1998).
6 E.A. v. State, Dep't of Health & Soc. Servs., 623 P.2d
1210, 1212 (Alaska 1981).
7 A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d
946, 950 (Alaska 2000).
8 AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
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.
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.
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).
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).
13 AS 47.10.011.
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)).
15 See supra Part II.A.2.
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.
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.
18 25 U.S.C. 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.
19 K.N. v. State, 856 P.2d 468, 476 (Alaska 1993).
20 25 U.S.C. 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.
21 Because the children are Indian children, the State
must satisfy the "reasonable doubt" standard established by ICWA,
25 U.S.C. 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.
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.
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.
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).
25 A.H. v. State, 10 P.3d at 1166.
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).
27 In re T.W.R., 887 P.2d at 946-47.
