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A.J. v. State, Dept. of Health & Social Services (1/17/2003) sp-5656
A.J. v. State, Dept. of Health & Social Services (1/17/2003) sp-5656
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
A.J., )
) Supreme Court No. S-10156
Appellant, )
) Superior Court No.
v. ) 4FA-91-79 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, DIVISION OF ) [No. 5656 - January 17,
2003]
FAMILY & YOUTH SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Robert S. Noreen, Law Office of
Robert S. Noreen, 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.
CARPENETI, Justice.
I. INTRODUCTION
I. The State of Alaskas Division of Family and Youth
Services (DFYS) has been involved with Ann Jackson and her
daughters since 1987 due to Anns chronic substance abuse problem.
DFYS petitioned to terminate Anns parental rights to her two
youngest daughters, Faye and Amelia, in July 2000. Because there
was sufficient evidence that Anns substance abuse justified
termination under Alaska law, we affirm the superior courts
termination of Anns parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Ann Jackson1 has six daughters; the youngest three all
have the same father, Jefferson Simpson. The three oldest
daughters are adults and live on their own. The fourth child,
Janet, was seventeen at the time of the termination proceeding
and was not included in the termination proceeding because she
refused any placement away from her mother. The termination
proceeding involved the two youngest daughters: Faye Jackson and
Amelia Simpson.2
The Division of Family and Youth Services became
involved with the custody of the daughters for the first time in
1987, prior to the birth of Amelia. At that time DFYS took
emergency custody of Sylvia, Janet, and Faye when Ann was passed
out and could not care for the children. After Ann completed a
substance abuse treatment program, the girls were returned to
her, and DFYS allowed its temporary custody to lapse. Ann again
went through outpatient substance abuse treatment after a charge
of driving while intoxicated in 1987.
In July of 1988 Ann took Sylvia to Dr. Marvin E.
Bergeson to have Sylvia examined for possible sexual abuse by
Jefferson. Sylvia had reported to Ann that Jefferson had touched
her while she was sleeping. Dr. Bergeson found no physical
evidence of abuse but found the patient history to be suspicious
and advised Ann that there could be sexual abuse absent physical
evidence. Ann allowed Jefferson to continue living in the house
after this incident with Sylvia.
Ann took Sylvia back to Dr. Bergeson for another
examination of possible sexual abuse by Jefferson in April of
1990 after Sylvia reported that Jefferson came into her room
while she was sleeping and tried to pull her pants down. Ann
forced Jefferson to leave the house but he returned by February
of 1991. In February 1991, fearing that Jefferson had sexually
abused the girls, Ann had Janet, Faye, and Amelia examined. Dr.
J. Timothy Foote found that there was evidence of sexual abuse to
Faye.
DFYS took emergency custody of Janet, Faye, and Amelia
in May of 1991 because the custodian who was supposed to care for
the girls while Ann was in a treatment program refused to do so
when it appeared that Ann was still drinking and refusing to go
to treatment. In September 1991 both Jefferson and Ann
stipulated that the girls were children in need of aid and should
be placed in state custody for one year because of Anns prolonged
depression and substance abuse and the allegations of sexual
abuse against Jefferson.
DFYS again took emergency custody of Janet, Faye, and
Amelia in July 1993 when the Fairbanks Police were informed that
Ann and the three girls were staying at the Fairbanks Hotel, that
Ann was passed out and unable to care for the girls, and that the
girls were running around the hotel unsupervised, hungry, and
dirty. Ann entered the Regional Center for Alcohol and Other
Addictions (RCAOA) for a short-term program in September 1993 and
was discharged less than three weeks later for failure to follow
directions and for falsifying a urine sample. In October 1993
both Jefferson and Ann stipulated that the girls were to remain
in the custody of the state for one year. Ann was readmitted to
RCAOA on October 28 but was discharged for non-compliant behavior
on November 29.
Faye and Amelia were again taken into emergency custody
by DFYS in July 1996. This happened after Ann dropped off Faye,
age ten, and Amelia, age six, at a local grocery store and told
them to walk home. The girls walked around the downtown area,
where they saw their mother in an intoxicated state, and then
walked home. Their aunt was there, but she was unwilling to care
for Faye and Amelia and called the Fairbanks Police, who took the
girls to an emergency foster home. In November 1996 Ann and
Jefferson again stipulated that Faye and Amelia were children in
need of aid and, therefore, should be in state custody for up to
two years.
Ann again entered substance abuse treatment in 1997.
She was treated at RCAOA for seven months beginning in January
before being administratively discharged in July. Ann was
referred to the Womens and Childrens Residential Program (WCRP)
in April 1998 where she remained until she was discharged in
July. Ann participated in the recommended aftercare program for
about a month but did not finish this program. Faye and Amelia
were returned to Anns care in December.
Ann started showing signs of relapse around May of
1999. Ann had several urinalyses between May of 1999 and June of
2000 that showed positive results for various drugs, including
(1) cocaine, (2) opiates, and (3) benzodiazepines and
barbiturates. Other urinalyses came back with low creatinine
levels, indicating that Ann had tried to dilute her urine to hide
evidence of drug use.
Ann entered substance abuse treatment again in
September 2000 and was discharged in November after completing
her treatment plan. Ann had several urinalyses while in
treatment which were positive for various drugs. Three such
tests within one week in November 2000 showed positive results
for, respectively, opiates and benzodiazepines, barbiturates, and
barbiturates and benzodiazepines. These results caused the
treatment center to rate Ann as having a high relapse potential.
B. Proceedings
DFYS petitioned for the termination of Anns and
Jeffersons parental rights to Faye and Amelia in July 2000. A
trial was held before Superior Court Judge Mary E. Greene in
December 2000. In her findings and order terminating parental
rights issued in March 2001, Judge Greene found that there was
clear and convincing evidence that Anns ability to parent had
been substantially impaired by her habitual use of drugs and
alcohol and that this had resulted in harm to Faye and Amelia.
The court also found that it was likely that Ann
consumed alcohol while pregnant with Amelia, resulting in Amelia
having fetal alcohol syndrome, and that Ann failed to protect her
children from sexual abuse by Jefferson, even though she was made
aware of Jeffersons possible conduct as early as 1988 when Sylvia
reported specific incidents to Ann. Further, the court found
that Ann had failed to remedy the conduct that placed Amelia and
Faye at substantial risk of harm.
As required by the Indian Child Welfare Act (ICWA),3
Judge Greene found beyond a reasonable doubt that continued
custody of Faye and Amelia by Ann was likely to result in serious
physical or emotional damage to the girls, because it was likely
that they would be sexually abused and because Ann was likely to
relapse into substance abuse again and be unable to meet Fayes
and Amelias needs. The court also found by a preponderance of
the evidence that active efforts had been made to prevent the
breakup of the Indian family under ICWA4 and that an unusually
extensive set of programs has been offered to this family. These
programs included substance abuse treatment programs, intensive
in-home services, parenting instruction, help with how to teach a
fetal alcohol syndrome child, counseling, and parent support
services.
For all of the above reasons, Judge Greene found that
termination of Anns parental rights was in Fayes and Amelias best
interests. As to Amelia, the court stated that [a]ll efforts
should be made immediately to find [Amelia] an Athabascan
placement, although she has permanent placement . . . if a Native
home cannot be found.5 As to Faye, although noting that
termination is less clearly necessary, the court nonetheless
found that termination was in Fayes best interest given the
alternative of remaining in Anns custody and that termination was
necessary in order to find permanent placement for Faye because
Ann had a history of interfering with the placement of her
children. Judge Greene concluded that terminating Anns parental
rights made it more likely that successful permanent placement
could be found for Faye and Amelia.
Ann appeals the termination of her parental rights.
III. STANDARD OF REVIEW
I. We will affirm a trial courts factual findings regarding
termination of parental rights unless those findings are clearly
erroneous.6 A finding of fact is clearly erroneous when we are
left with a definite and firm conviction that the trial court has
made a mistake.7 Whether the factual findings are sufficient to
satisfy the Child In Need of Aid (CINA) rules is a question of
law that we will review de novo.8 We adopt the rule of law that
is most persuasive in light of precedent, reason, and policy for
questions of law.9
IV. DISCUSSION
A. The Superior Courts Findings that the Children Have Been
Subjected to Conduct or Conditions Described in AS 47.10.011 Is
Adequately Supported by the Record.
A. Ann argues that the superior court is required to make
findings as to the requirements of AS 47.10.011(6)10 under the
circumstances that exist at the time of termination, not merely
through historical chronology. Ann states that a recital of
stale events no longer applicable cannot solely create a catch-
all for termination of parental rights involving an eleven-year-
old daughter and a fourteen-year-old daughter wherein the court
has admitted that any meaningful placement stability is in
question. Ann asserts that Judge Greene failed to point to
specific current problems to justify termination.
The state argued for termination under AS 47.10.011(1),
(7), (8), (9), and (10),11 not under subsection (6). Anns
argument that the superior court must meet the requirements of AS
47.10.011(6) fails because it does not respond to the states
petition to terminate. Judge Greene was not required to find
that the state had met the requirements of AS 47.10.011(6)
because the state did not argue for termination under that
particular subsection.
In response to Anns argument that the superior court
erred in relying on events that occurred prior to the termination
proceedings, the state asserts that the question is whether the
parents conduct had previously made the child a child in need of
aid, not whether it is making the child in need of aid at the
time of the termination trial. Under AS 47.10.088(a)(1)(A),12 as
a prerequisite to terminating parental rights, the superior court
is required to find by clear and convincing evidence that the
children have been subjected to conduct or conditions described
in AS 47.10.011.13 We have previously stated that the inquiry
regarding CINA status at a termination hearing involves all
evidence of the parents pre-termination hearing conduct,
including evidence of parental conduct predating the CINA
adjudication. 14 We therefore find that it was appropriate for
the superior court to take all of Anns past conduct into account
in making its determination under AS 47.10.088(a)(1)(A).
Ann also argues that there was insufficient evidence to
support the superior courts finding by clear and convincing
evidence that the children remained children in need of aid under
AS 47.10.011. Judge Greene issued a sixteen-page decision in
which she found by clear and convincing evidence that Anns
substance abuse affected her parenting, causing her to neglect
Faye and Amelia and posing a risk that the girls would be
sexually victimized. Judge Greene also found that Anns lack of
supervision of the girls resulted in a substantial risk that the
girls would be sexually abused, that Anns behavior subjected the
girls to neglect, and that Anns substance abuse resulted in
substantial risk of harm to the girls. While the courts lengthy
findings and order does not contain the recitation that Faye and
Amelia are children in need of aid and does not state under which
subsections of AS 47.10.011 the children qualified as children in
need of aid, the findings are nonetheless legally sufficient.
Under AS 47.10.088(a) an explicit finding that children are in
need of aid as a condition of termination of parental rights is
not required. But the court must find that the children have
been subjected to conduct or conditions described in AS
47.10.011. That section, in turn, describes conduct and
conditions that must exist in order to find that a child is a
child in need of aid. In the present case Judge Greene, without
identifying subsections (7),15 (9),16 and (10)17 of AS 47.10.011,
explicitly found by clear and convincing evidence that the
children had been subjected to conduct or conditions that are
described in those subsections. The findings thus comply with AS
47.10.088.
Judge Greenes findings that Faye and Amelia had been
subjected to conduct or conditions tracking those described in AS
47.10.011 are supported by the record in this case. Ann has had
a substance abuse problem that has required the repeated
intervention of DFYS since 1987. On at least two occasions, Ann
has stipulated that Amelia and Faye were children in need of aid
due to Anns alcohol abuse. Ann has been in at least four
different substance abuse programs and has consistently failed to
maintain her sobriety.18 There is also substantial evidence that
Anns substance abuse was escalating from alcohol abuse to abuse
of prescription and street drugs. Ann also consistently failed
drug tests while in substance abuse treatment.
Anns substance abuse placed the girls at substantial
risk of harm and caused Ann to neglect the girls. DFYS has had
to take at least one of the daughters into custody on at least
six different occasions since 1987 because Ann was unable to care
for the girls due to her substance abuse. On multiple occasions
Ann has been found passed out and unable to care for the girls.
Reports have been made over a period of years that the girls were
dirty and hungry due to Anns neglect. Anns substance abuse has
also impaired her judgment so that male visitors who pose a
substantial risk to the girls are allowed in the home.
Both Faye and Amelia are special needs children who
require consistent environments in order to meet educational
goals. Amelia suffers from fetal alcohol syndrome, and Faye may
suffer from fetal alcohol effect. Ann failed to provide the
needed environment for Faye and Amelia because her substance
abuse required the girls to get up, get dressed, and get
themselves to school on their own. The girls were consistently
absent from school, late in arriving, and were often picked up
hours after school had ended. The principal of the girls
elementary school testified that Ann showed up intoxicated at the
school.
The record also supports a finding that Faye and Amelia
were at substantial risk of being sexually abused due to Anns
lack of supervision. The record shows that Ann took Sylvia to
the doctor twice to have her examined for possible sexual abuse
by Jefferson. Ann also took Faye to the doctor, and Dr. Foote
determined that Faye had been sexually abused. Also, Ann
testified that she was aware of the likelihood that Jefferson was
sexually abusing her daughters. Therefore, there was sufficient
evidence that Ann was aware that Faye and Amelia were at a
substantial risk for sexual abuse but that Ann failed to protect
her children from this danger.
We consequently conclude that the findings that Faye
and Amelia were subjected to conduct or conditions described in
AS 47.10.011 are adequately supported by the record and the
superior court did not err in terminating Anns parental rights.
B. The Superior Court Did Not Err in Ordering the Termination
of Anns Parental Rights Instead of Guardianship Pursuant to AS
47.10.110.
Ann argues that the superior court erred because it did
not consider appointing a guardian for the children instead of
terminating her parental rights. The superior court was not
required to consider the less drastic alternative of guardianship
in a termination proceeding. We have previously stated that
[a]lthough AS 47.10.110 permits a court to
appoint a guardian for a child when it
appears to the court that such an appointment
would be in the childs best interest, AS
47.10.088 does not require that guardianship
be considered in termination proceedings,
except to the extent that the statute
requires the court to order an arrangement
that is in the childs best interest.[19]
In this case, Judge Greene concluded that termination was
necessary because of Anns history of interfering with the
childrens placements. This conclusion was amply supported by the
testimony of Joanne Simmerman, a social worker with DFYS, who
testified that Ann interfered with Fayes foster placement and
that Anns relatives refused placements due to fears that Ann
would be disruptive. The superior court did not err in choosing
termination, because the significant chance that Ann would
interfere with any guardianship justified the termination of Anns
parental rights in the best interests of her children.
V. CONCLUSION
I. Because there was substantial evidence that Faye and Amelia
were subjected to conduct or conditions described in AS 47.10.011
and the superior courts order terminating Anns parental rights
was supported by the law, we affirm the superior courts order.
_______________________________
1 Pseudonyms have been used in this opinion for all
family members.
2 Jefferson was served with notice but he failed to
appear at the termination proceedings. His parental rights were
terminated in March 2001 and he is not appealing the termination.
3 25 U.S.C. 1912(f) (2001).
4 25 U.S.C. 1912(d).
5 See 25 U.S.C. 1915(b).
6 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).
7 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
8 T.F. v. State, Dept of Health & Soc. Servs., 26 P.3d
1089, 1092 (Alaska 2001).
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 AS 47.10.011(6) provides:
Subject to AS 47.10.019, the court may find a
child to be a child in need of aid if it
finds by a preponderance of the evidence that
the child has been subjected to any of the
following:
. . . .
(6) the child has suffered substantial
physical harm, or there is a substantial risk
that the child will suffer substantial
physical harm, as a result of conduct by or
conditions created by the childs parent,
guardian, or custodian or by the failure of
the parent, guardian, or custodian to
supervise the child adequately[.]
11 These subsections of AS 47.10.011 deal with abandonment
(subsection 1), sexual abuse (subsection 7), mental injury
(subsection 8), neglect (subsection 9), and substance abuse
leading to substantial risk of harm to the child (subsection 10).
12 AS 47.10.088(a)(1)(A) provides:
(a) Except as provided in AS 47.10.080(o),
the rights and responsibilities of the parent
regarding the child may be terminated for
purposes of freeing a child for adoption or
other permanent placement if the court finds
(1) by clear and convincing evidence
that
(A) the child has been subjected to
conduct or conditions described in AS
47.10.011[.]
13 AS 47.10.088(a)(1)(A); see also J.H. v. State, Dept of
Health & Soc. Servs., 30 P.3d 79, 85 (Alaska 2001).
14 A.H. v. State, Dept of Health & Soc. Servs., 10 P.3d
1156, 1161 (Alaska 2000) (quoting D.M. v. State, Div. of Family &
Youth Servs., 995 P.2d 205, 209 (Alaska 2000)).
15 AS 47.10.011(7) provides that a child may be
adjudicated a child in need of aid when:
the child has suffered sexual abuse, or there
is a substantial risk that the child will
suffer sexual abuse, as a result of conduct
by or conditions created by the childs
parent, guardian, or custodian or by the
failure of the parent, guardian, or custodian
to adequately supervise the child; if a
parent, guardian, or custodian has actual
notice that a person has been convicted of a
sex offense against a minor within the past
15 years, is registered or required to
register as a sex offender under AS 12.63, or
is under investigation for a sex offense
against a minor, and the parent, guardian, or
custodian subsequently allows a child to be
left with that person, this conduct
constitutes prima facie evidence that the
child is at substantial risk of being
sexually abused[.]
16 AS 47.10.011(9) provides that a child may be
adjudicated a child in need of aid when:
conduct by or conditions created by the
parent, guardian, or custodian have subjected
the child or another child in the same
household to neglect[.]
17 AS 47.10.011(10) provides that a child may be
adjudicated a child in need of aid when:
the parent, guardian, or custodians ability
to parent has been substantially impaired by
the addictive or habitual use of an
intoxicant, and the addictive or habitual use
of the intoxicant has resulted in a
substantial risk of harm to the child; if a
court has previously found that a child is a
child in need of aid under this paragraph,
the resumption of use of an intoxicant by a
parent, guardian, or custodian within one
year after rehabilitation is prima facie
evidence that the ability to parent is
substantially impaired and the addictive or
habitual use of the intoxicant has resulted
in a substantial risk of harm to the child as
described in this paragraph[.]
18 As the superior court so plaintively noted in its
Findings and Order:
Ms. [Jackson] was still drugging during her
latest substance abuse treatment even though
she has had more treatment than anyone the
court has ever seen in such cases, has had
lots of support, had the incentive of knowing
the termination trial would be starting soon
and the knowledge that urinalysis tests were
being done.
19 C.W. v. State, Dept of Health & Soc. Servs., 23 P.3d
52, 57 (Alaska 2001).
