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J.S. v. State (6/21/2002) sp-5590
J.S. v. State (6/21/2002) sp-5590
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
J.S., )
) Supreme Court No. S-9722
Appellant, )
) Superior Court No.
v. ) 3KO-89-10 CP
) 3KO-89-11 CP
STATE OF ALASKA, ) 3KO-90-22 CP
)
Appellee. ) O P I N I O N
)
________________________________) [No. 5590 - June 21, 2002]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge and Anna M. Moran,
Standing Master.
Appearances: J.S., pro se, Anchorage, and
Gayle J. Brown, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee. Alan
L. Schmitt, Kodiak, Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Jacks1 parental rights were terminated as to his sons
Avery, Lyle, and Carl after Jack was convicted of five counts of
sexual abuse against them. Jack claims several errors were made
by the superior court. Because we find that the superior court
did not need to require active efforts under the Indian Child
Welfare Act, we uphold the termination of Jacks parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
This case involves the termination of Jacks parental
rights to his three sons: Avery, Lyle, and Carl. Avery was born
in June 1988. Lyle and Carl, twins, were born in June 1989.
Custody of the boys appears to have been transferred to Jack on
September 7, 1989 after the state petitioned to have the boys
removed from their mothers custody when the twins tested positive
for cocaine at birth. During the first several years of the
twins life, custody apparently went back and forth between the
mother and Jack. Between January 1, 1994 and January 25, 1996,
the boys lived with Jack in Kodiak.
The Division of Family and Youth Services (DFYS)
removed the boys from Jacks care on January 25, 1996 due to
reports to the Kodiak police department and DFYS case worker,
Mary Gray, by the boys mother and other relatives, that Jack was
sexually abusing all three boys. Jack was charged with eight
counts of engaging in acts of sexual contact and sexual
penetration including fellatio, digital anal penetration, and
penile anal penetration. A jury convicted Jack of four counts of
first-degree sexual abuse of a minor and one count of second-
degree sexual abuse of a minor, counts which involved all three
boys. Jack was sentenced to nineteen years with four years
suspended. Also, as conditions of parole, Jack was ordered not
to have contact, direct or indirect, with his sons or his own
sisters, or their families, without prior written approval of the
parole officer. Jack was also ordered not to have contact with
any minor children under the age of sixteen without the approval
of the parole officer. The court of appeals upheld Jacks
conviction in its entirety.
After their removal from Jacks custody, the boys were
placed in emergency custody. DFYS attempted to place the boys
with their mother after her promise to remain clean and sober.
The mother moved with the boys into a local womens shelter but
abandoned them sometime during the night of February 4, 1996.
After their mothers abandonment, the boys were placed in foster
care and then placed with their aunt Cara on March 22, 1996. The
boys remained with Cara until she informed DFYS that they had to
be moved due to their inappropriate sexual behavior with each
other and her own children. The boys have since been placed in
separate foster homes. The mothers parental rights were
terminated on August 24, 1999.
B. Proceedings
The state petitioned to have the boys declared children
in need of aid on January 26, 1996. The superior court delayed
the proceedings on several occasions pending resolution of Jacks
criminal charges. The boys were adjudged children in need of aid
under AS 47.10.010(4) by the superior court on January 7, 1997.
Also on that date the superior court granted the states motion
for summary judgment, holding that Jack was collaterally estopped
from denying that he sexually abused his children in light of his
criminal conviction. In January 1999 DFYS petitioned for
termination of Jacks parental rights as to all three boys. Jack
moved to have the boys declared Indian children for the purposes
of the Indian Child Welfare Act (ICWA). Preliminary hearings
were held in front of Superior Court Judge Donald D. Hopwood on
January 26, 1996 and Standing Master Anna M. Moran on February 2,
February 17, May 4, and May 20, 1999. The termination proceeding
was held May 25-27, 1999 before Standing Master Moran.
The Muscogee (Creek) Nation moved to intervene in the
proceedings under ICWA and that motion was granted by Standing
Master Moran. In accordance with Standing Master Morans
findings, the superior court found, beyond a reasonable doubt,
that termination of Jacks parental rights was appropriate under
AS 47.10.080(o) given the length of his incarceration and the
needs of the children. These findings were based on the
testimony of six expert witnesses and a social worker.
However, the superior court found that it was
uncontroverted that the state failed to offer any type of active
remedial or rehabilitative services to Jack as required by ICWA.
The superior court found that for rehabilitation to occur, Jack
would have to admit that he sexually abused his children and
enroll in a sex offender treatment program. The superior court
held the record open for sixty days in order to allow the state
to develop and offer a treatment plan to Jack; and ruled that if
Jack failed to accept the plan during this time his parental
rights would be terminated.
The state developed a case plan that included the
requirement that Jack admit to charges I through VIII of his
March 28, 1996 indictment, openly take full responsibility for
his behavior, write a letter of apology to each of his three sons
involved in the termination proceedings, direct his attorneys to
terminate all appeals of his criminal case, and enroll and be
accepted into a sex offender treatment program. Jack rejected
the proposed case plan because it required him to admit to the
sexual abuse of his sons and because it required him to cease his
criminal appeals.
The superior court ordered the matter to be heard by
Standing Master Moran for additional findings on the issue of the
states compliance with the August 24, 1999 order. Standing
Master Moran found that the states case plan satisfied ICWAs
remedial measures requirement and recommended termination of
Jacks parental rights in December 1999. In January 2000 the
superior court approved a stipulation between the state and the
Muscogee Creek representatives noting that DFYS contacted all of
the boys relatives, that no family members were willing or
capable of caring for the boys, and that no families meeting the
preference requirements of 1915(a) of ICWA were found after
diligent effort by DFYS. The superior court issued an order in
accordance with the findings of Standing Master Moran in May
2000.
Jack now appeals the decision of the superior court
terminating his parental rights.
III. STANDARD OF REVIEW
We will affirm a trial courts factual findings in cases
of termination of parental rights unless those findings are
clearly erroneous.2 A finding of fact is clearly erroneous when
we are left with a definite and firm conviction based on the
entire record that the trial court has made a mistake.3 It is a
mixed question of law and fact as to whether the state has
complied with the active efforts requirement of ICWA.4 We will
defer to the trial courts factual findings under the clearly
erroneous standard and review de novo any questions of law.5
Whether the factual findings are sufficient to satisfy the [CINA]
rules is a question of law that we will review de novo.6
Constitutional questions are questions of law for which we will
substitute our own judgment.7 We will adopt the rule of law that
is most persuasive in light of precedent, reason, and policy.8
IV. DISCUSSION
A. The Superior Court Did Not Err In Terminating Jacks Parental
Rights Because Active Efforts Were Not Required under ICWA.
Jack argues that the proposed case plan offered by the
state in response to the superior courts August 24, 1999 order
did not comply with ICWAs requirement that active efforts be made
to rehabilitate a family prior to the termination of parental
rights. The state and the guardian ad litem (GAL) argue that the
active efforts requirement was complied with. The state and the
GAL also argue that ICWA should be interpreted as not requiring
active efforts once a family is irrevocably sundered by parental
sexual abuse.
The Indian Child Welfare Act requires the state to
prove active efforts . . . to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family.9 We decide whether active efforts have been made
on a case-by-case basis.10 Generally, the states duty under the
active efforts requirement is not affected by a parents
motivation or prognosis before remedial efforts have commenced.11
We have previously held that [n]either incarceration nor doubtful
prospects for rehabilitation will relieve the State of its duty
under ICWA to make active remedial efforts.12
However, the enactment of the Adoption and Safe
Families Act of 199713 (ASFA) convinces us that it is the policy
of Congress to not require remedial measures in situations where
a court has determined that a parent has subjected his or her
child to sexual abuse. This enactment14 amended 42 U.S.C. 671 so
as not to require reasonable efforts to be made to preserve the
family when a court of competent jurisdiction has determined that
. . . the parent has subjected the child to aggravated
circumstances, which includes sexual abuse.15 Although this case
is not governed by ASFA, that act is useful in providing guidance
to congressional policy on child welfare issues. It suggests
that in situations of adjudicated devastating sexual abuse, such
as this one, a persons fundamental right to parent is not more
important than a childs fundamental right to safety. Therefore,
we hold that active efforts to reunify the abusing parent are not
required in a situation after there has been a judicial
determination that the parent has subjected the child to sexual
abuse.
Because the superior court could find the states active
efforts duty was discharged when Jack was convicted of sexually
abusing his children, the superior court did not err in
terminating his parental rights.16
B. The Superior Court Did Not Err in Qualifying the Expert
Witnesses.
Jack argues that the superior court erred when it
qualified experts that were without special knowledge of social
and cultural aspects of Native life. In L.G. v. State,
Department of Health and Social Services,17 we stated that so long
as a termination proceeding does not implicate cultural bias,
ICWAs proof requirements can be satisfied by a qualified expert
witness without any special familiarity with Native cultural
standards.18 We went on to state that where there is clear
evidence that a child faces a serious risk of physical neglect if
she [or he] remains in [the] parents care, a trial judge may
terminate parental rights without hearing testimony from an
expert in Native cultures.19 Jack has offered no evidence that
the issue of cultural bias was raised at trial.
During the course of the termination proceedings, five
experts testified as to the risk to the boys if Jacks parental
rights were not terminated. The therapists for all three boys
(four therapists in total) testified that the boys could not be
transitioned back into Jacks custody without substantial
emotional harm. In addition, all four therapists testified that
the boys would suffer severe emotional distress if they were
required to leave the respective foster families to which they
had bonded. Therefore, the superior court did not err in
terminating Jacks parental rights without hearing testimony from
an expert on Native life because cultural issues were not
implicated in the proceedings and there was sufficient expert
testimony that the boys could suffer severe emotional harm if
Jacks parental rights were not terminated.
C. The Superior Court Did Not Lack Jurisdiction.
A. Jack argues that the superior court lacked jurisdiction
because violations of law occurred during the proceedings. ICWA
provides for the transfer of termination proceedings to the
tribal court to which the children belong in some circumstances.20
However, Jack does not seem to be arguing here, nor did he argue
in the superior court, that jurisdiction be transferred to the
Muscogee tribal court. Instead, he argues that proceedings
should be terminated and the boys returned to their Indian
Custodians. Jacks Motion to Move Superior Court to: Declination
of Jurisdiction: and Forthwith Return of Child to Indian
Custodian appears to be a motion to dismiss the proceedings in
their entirety. Also pertinent is the fact that the Muscogee
Tribe representatives signed a stipulation, that was approved by
the superior court, that the tribe was contacted regarding the
stability of the current placements and that the tribe is in
agreement with the states handling of the situation, including
the boys placement with non-Native families. There is evidence
that the Muscogee Tribe reserved the right to petition that the
proceedings be transferred to the tribal court but there is no
indication that a petition was ever filed. Also, a petition for
removal under U.S.C. 1911 was never filed. Therefore, the
superior court had jurisdiction over these termination
proceedings.21
D. The Superior Court Did Not Err in Upholding the States
Placement of the Children Outside of ICWA Preferences.
Jack argues that the state failed to follow ICWAs
placement requirements because there were family members of Jack
who were willing to take the boys but who were never contacted by
the state.22 Jack argues that his brother, Aaron, was willing to
take the children, as was Jacks sister, Lilly. Jack also argues
that the state failed to inquire about any extended family that
may be able to take the boys.
DFYS case worker Mary Gray testified that she contacted
the Kodiak Area Native Association in order to find foster
placement for the boys on several occasions but that there was
never a Native family available. Gray also testified that the
boys were placed with their aunt, Cara, but that did not work
out. Gray then contacted the boys other aunt, Lilly, but after
some communications between Lilly and DFYS, Lilly decided that
she should not take care of the boys. Also, Gray testified that
she had a meeting with Jack in the summer of 1998 but that Jack
did not offer the names of any relatives who could care for the
boys and that she had never heard of Jacks brother, Aaron, until
he appeared on the witness list in the proceedings. Furthermore,
the Muscogee Tribe representatives signed a stipulation stating
that the state worked in conjunction with the tribe to find
placement with the boys family pursuant to ICWA, that placement
with relatives or other Native families was not available, and
that good cause existed to deviate from ICWA preferences. The
state complied with ICWAs preference guidelines. Therefore, the
placement of the boys was not in error.
E. The Superior Court Did Not Rule that Jack Was To Have No
Direct or Indirect Contact with His Children.
Jack argues that the superior court erred when it found
that he was not to have any contact with his children. Jack
argues that this finding by the superior court was one of the
reasons that his parental rights were erroneously terminated.
There is no evidence that the superior court ever ordered Jack to
have no contact with his children or based any orders in the
termination proceedings on whether or not contact occurred. In
fact, Jacks criminal conviction states that he was to have [n]o
contact, direct or indirect, with the victims . . . without prior
written approval of the Probation/Parole Officer. Therefore, the
superior court did not order him to have no contact with his
children; this was one of the many conditions of Jacks parole.
F. The Superior Court Did Not Err in Denying Jacks Discovery
Motions.
A. Jack argues that the superior court erred when it denied
discovery of notes to an interview that Jack believes occurred
between Mary Gray and the boys. Jack claims that he was denied
discovery of these notes because Gray and the district attorney
denied that this interview ever happened and the superior court
agreed with the district attorney and Gray. The superior court
granted Jacks discovery motion in part on February 11, 2000,
allowing him access to any information that DFYS may have had
about communications between DFYS and Lilly. The superior court
issued another order on March 8, 2000 denying Jacks discovery
request because this discovery request was covered by the courts
previous order. In addition, DFYS proved that Jack received
discovery of DFYSs entire file in this case. Therefore, the
superior court did not deny Jack discovery; there was no error in
connection with the superior courts discovery orders.
I. The Superior Court Did Not Err in Finding Beyond a
Reasonable Doubt that Placement with Jack Was Likely To
Result in Serious Physical or Emotional Damage to the
Children.
Jack argues that the evidence presented to the superior
court by the state was insufficient to meet the beyond a
reasonable doubt standard required by ICWA.23 Specifically, Jack
argues that the expert witnesses did not have sufficient
knowledge of the specific facts of this case. We have stated:
We do not hold that a meeting between the
expert and the parties to the termination
proceeding is required in every case. But the
expert opinion should be based on the
particular facts and issues of the case . . .
in order to support a finding, beyond a
reasonable doubt, that serious physical or
emotional harm will result.[24]
Jack was criminally convicted of sexually abusing the boys. The
superior court was therefore justified in finding in the
termination proceeding that this fact had been proven beyond a
reasonable doubt. We turn now to the specific expert testimony
that the state offered, and whether the expert opinions were
sufficiently based on the particular facts of this case.
The first expert to testify was Pamela A. Robinson, who
has a Bachelor of Science degree in sociology with a minor in
psychology and a masters degree in counseling psychology. She
testified that prior to getting her masters degree she worked for
twenty years in early childhood education and child development,
and that she has been qualified as an expert in several other
cases. At the time of her testimony, she had been counseling
Carl for approximately one and one-half years. Upon the initial
consultation, she diagnosed Carl with post-traumatic stress
disorder, possible major depression, and adjustment disorder.
She stated that she believed that Carl could not be transitioned
back to Jack without causing Carl emotional harm.
The second expert to testify was Sandra Husted, who has
a bachelors degree in sociology and a masters degree in
counseling. She stated that she was a Clinician II at Providence
Mental Health Center in Kodiak from January 1998 until January
1999. At the time of the hearing, she had been licensed as a
professional counselor in Texas for nine years. She had been
qualified as an expert in psychotherapy and crisis emergency in
previous court cases. She testified that she treated Avery from
February of 1998 until November of 1998 during which time she saw
him approximately every three weeks. She testified that Avery
could not be transitioned away from his foster family and back to
Jack because of the abuse perpetrated by Jack.
Dr. Robert B. Duthie testified next. He holds a Ph.D.
in counseling and clinical psychology and has been board
certified in forensic psychology since 1987. He stated that he
had been qualified as an expert in at least 100 previous cases.
He first met Lyle in June of 1998 and had been following the case
ever since. He testified that Lyle had post-traumatic stress
disorder arising from the sexual abuse by Jack. He also
testified that Lyle could not successfully be placed back into
custody with Jack without emotional harm and risk of continued
sexual abuse because Jack has not received treatment nor
apologized for the previous abuse.
The fourth expert to testify was Dr. Joseph M. Keville,
who has a Bachelor of Science degree in social services and a
Ph.D. in education; he has been a licensed psychologist in
Massachusetts since 1973. He practices in the area of clinical
child psychology. He testified that he had treated approximately
1,000 children in the last ten years. He met with Avery on two
occasions and testified that he thought that Avery would have a
severe depressive reaction if he was forced to leave his foster
family.
The fifth expert to testify was Dr. Ronald D. Howes,
who has a bachelors degree and masters degree in psychology and a
Ph.D. in clinical psychology. He stated that he had completed
over 2,000 hours of clinical internship in forensic psychology
with the California Department of Corrections and is board
certified in trauma psychology with specialties in sex therapy
and treatment of sex addictions. He had testified as an expert
in court on numerous occasions. He stated that the recidivism
rate for a sex offender increased in cases with same gender
sexual abuse, lack of a strong family member supervising the
family, and where the abuse was not admitted to by the offender.
He stated that, given the situation in this case, the rate of
recidivism would be over fifty percent.
There was substantial testimony by experts with
personal knowledge of the facts of this case and an expert with
substantial expertise in sex offender treatment. The superior
courts finding beyond a reasonable doubt that placement with
Jack would result in serious emotional damage to the boys was
therefore not clearly erroneous.
V. CONCLUSION
We AFFIRM the termination of Jacks parental rights.
_______________________________
1 Pseudonyms have been used throughout this opinion for
all family members.
2 A.A. v. State, Div. of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).
3 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
4 A.A., 982 P.2d at 259.
5 Id.
6 T.F. v. State, Dept of Health & Soc. Servs., 26 P.3d
1089, 1092 (Alaska 2001).
7 Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
8 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
9 25 U.S.C. 1912(d).
10 N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 603 (Alaska 2001).
11 A.A. v. State, Div. of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999).
12 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995),
overruled on other grounds, Matter of S.A., 912 P.2d 1235, 1239
(Alaska 1996); see also A.B.M. v. M.H. & A.H., 651 P.2d 1170,
1173 (Alaska 1982) (holding that there was no compelling reason
for implying a judicially created exception to ICWA).
13 Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as
amended in scattered sections of 42 U.S.C.). This provision of
the federal act has been adopted in Alaska as AS 47.10.086(c)(1).
14 Id. at 101.
15 42 U.S.C. 671(a)(15)(D)(i) (2001). We note that the
Alaska Legislature has adopted this exception to the reasonable
efforts requirement in regard to children in need of aid in AS
47.10.086(c).
16 Jack also argues on appeal that, by requiring him to
admit to charges I through VIII of his criminal indictment in
order to prevent the termination of his parental rights, the
state violated his constitutional right against self-
incrimination and that the superior court erred in giving the
state time to comply with ICWA. Because we hold that the state
was not required to make active efforts, it is unnecessary to
reach these two issues.
17 14 P.3d 946 (Alaska 2000).
18 Id. at 953.
19 Id.
20 25 U.S.C. 1911(b) (2000) provides in relevant part:
(b) Transfer of proceedings; declination by
tribal court
In any State court proceeding for the
foster care placement of, or termination of
parental rights to, an Indian child not
domiciled or residing within the reservation
of the Indian childs tribe, the court, in the
absence of good cause to the contrary, shall
transfer such proceeding to the jurisdiction
of the tribe, absent objection by either
parent, upon the petition of either parent or
the Indian custodian or the Indian childs
tribe: Provided, That such transfer shall be
subject to declination by the tribal court of
such tribe.
21 AS 47.10.010(a).
22 25 U.S.C. 1915(b) (2000) provides:
(b) Foster care or preadoptive placements;
criteria; preferences
Any child accepted for foster care or
preadoptive placement shall be placed in the
least restrictive setting which most
approximates a family and in which his
special needs, if any, may be met. The child
shall also be placed within reasonable
proximity to his or her home, taking into
account any special needs of the child. In
any foster care or preadoptive placement, a
preference shall be given, in the absence of
good cause to the contrary, to a placement
with
(i) a member of the Indian childs
extended family;
(ii) a foster home licensed, approved,
or specified by the Indian childs tribe;
(iii) an Indian foster home licensed or
approved by an authorized non-Indian
licensing authority; or
(iv) an institution for children
approved by an Indian tribe or operated by an
Indian organization which has a program
suitable to meet the Indian childs needs.
23 25 U.S.C. 1912(f) (2000) provides:
(f) Parental rights termination orders;
evidence; determination of damage to child
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.
24 C.J. v. State, Dept of Health & Soc. Servs., 18 P.3d
1214, 1218 (Alaska 2001).
