You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Jack C. v. State, Division of Family and Youth Services (5/2/2003) sp-5686
Jack C. v. State, Division of Family and Youth Services (5/2/2003) sp-5686
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
JACK C., )
) Supreme Court No. S-10690
Appellant, )
) Superior Court No. 1KE-99-51
CP
v. )
) O P I N I O N
STATE OF ALASKA, DFYS, )
) [No. 5686 - May 2, 2003]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge.
Appearances: Michael P. Heiser, Ketchikan,
for Appellant. Stacie L. Kraly, Assistant
Attorney General, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Under authority of AS 47.10.088, the superior court
terminated Jack C.'s1 parental rights to his two young daughters.
Jack C. claims on appeal that the court clearly erred in finding
that the state proved by clear and convincing evidence that he
had failed to remedy, within a reasonable period of time, the
conduct that placed his two children at substantial risk, and in
finding that returning the children to him would place them at
substantial risk of physical or mental injury. The superior
court did not clearly err. Essentially undisputed evidence
established that Jack C. had sexually abused both children and
that he failed to complete individualized treatment programs for
sexual abuse, substance abuse, and anger management within a
reasonable time. We therefore affirm the termination of his
parental rights.
II. FACTS AND PROCEEDINGS
Jack C. and Paula R. are the parents of Nina C. and
Julie C. Julie was born in March 1993 and Nina was born in March
1995. During Jack and Paula's "off and on" relationship, the
couple regularly abused alcohol and drugs and Jack engaged in
domestic violence against Paula. Their relationship ended in
1998. Jack, Julie, and Nina moved to Alaska in January 1999.2
In December 1999 Nina, then age four, complained to her
live-in babysitter, Kelly V., that her "butt hurt." When Kelly
asked her why she was in pain, Nina responded that her Dad "puts
his wiener in my mouth, pees in my mouth, and sticks his wiener
in my private parts." Kelly reported Nina's complaints to the
Alaska Department of Health and Social Services, Division of
Family and Youth Services (DFYS). Kelly also reported that Jack
used drugs and that he called the girls names. She also recalled
an incident in which Jack arrived at her home, drunk, with both
girls in the car. On the same day Kelly reported the abuse, Sue
Patrick, a DFYS social worker, interviewed the two children, who
confirmed Kelly's report. Nina also told the social worker that
her father had hit her.
DFYS immediately took emergency custody of Nina and
Julie.3 DFYS petitioned the superior court the next day for an
adjudication that Nina and Julie were children in need of aid and
for an order committing the children to DFYS custody. After
conducting a hearing on the state's petition, Superior Court
Judge Thomas M. Jahnke held that there was probable cause to
believe that the children were in need of aid under AS
47.10.011(1), (6), (7), (9), and (10), and that it would not be
in the children's best interests to be placed back in Jack C.'s
home. The superior court committed the children to the temporary
custody of DFYS and also ordered both parents to participate "in
the development of a case plan and . . . family support services
as set forth in that case plan." The court forbade the parents
to have direct or indirect contact with the children unless they
arranged visitation through DFYS.
Paula's DFYS case plan required that she maintain
regular contact with the children, complete a residential
substance abuse and alcohol program, follow through with all
treatment recommendations, and stay clean and sober for six
months. DFYS planned to conduct a home study for Paula to
determine whether it should place the two girls with her. Jack's
DFYS case plan required that "he be evaluated for individualized
programs for substance abuse/alcohol treatment, anger management,
parenting[,] . . . and sex offender treatment (SOTP), and that he
complete the recommended programs."
In an amended petition for an adjudication that Julie
and Nina were children in need of aid, DFYS also alleged that
Julie had disclosed that her father "choked her once when he was
drunk and she could not breathe."
In February 2000 an indictment charged Jack with two
counts of sexual abuse of a minor in the first degree under
AS 11.41.434(a)(2)(A) for sexual penetration of Nina.
The March 2000 report of guardian ad litem (GAL)
Patricia Muzzana reported that she had observed that both girls
had engaged in "sexual acting out" and were "knowledgeable beyond
their years in sexual matters." The GAL recommended that the
children "remain in the custody of the Department of Health and
Social Services for at least six months or until a relative
placement can be determined and approved."
Judge Jahnke conducted the adjudication hearing in
March 2000, and per the parties' stipulation ordered that the
children remain in DFYS custody for six more months while DFYS
conducted home studies of the children's relatives. Jack
requested that either his mother, Mary C., or his sister, Pilar
C., have custody of the girls. Paula's eldest daughter, Billi
R., wanted the girls placed with her. The court again ordered
Jack and Paula to participate in the family support services
recommended by DFYS and to work with the division to update their
case plans.
In August 2000 DFYS filed another petition to extend
its custody of the children up to one year. A report DFYS
submitted in support indicated that Jack had not completed his
sex offender treatment program and was "not willing to talk to
any mental health professionals about any subject until his
criminal case [was] resolved." The report also indicated that
Jack was not working on his alcohol and drug problem with "any
particular focus."
DFYS's report also described a July 2000 incident
between Jack and his daughters. Jack had approached them while
they were on a day-care field trip. He hugged the two girls and
told them that he loved them. This unsupervised contact was a
direct violation of the superior court's order that Jack not have
direct or indirect contact with the children unless it was
arranged with DFYS. Because of the incident, Julie became
"hysterical" and Nina "was able to voice her fear that he was
coming back." Superior Court Judge Trevor N. Stephens extended
DFYS's custody of the two girls for one year.4
In November 2000, eleven months after taking emergency
custody of the girls, DFYS filed a report recommending that Julie
and Nina remain in long-term foster care permanently. DFYS
reported that it had determined that the girls' mother, Paula,
was not a proper placement due to drug and alcohol abuse and that
Jack's mother and his sister were not proper placements either.
DFYS had not yet completed a home study for Paula's eldest
daughter, Billi R. DFYS also reported that Jack and Paula had
not complied with the requirements of their respective case
plans. The report concluded that Jack had been "minimally
compliant" with respect to his participation in the parenting
classes and alcohol and drug program. He also had not completed
sex offender treatment because he "refuse[d] to address any
issues related to the allegations of sexual or physical abuse due
to his pending criminal trial." Paula had not had any contact
with her children in over three months and had not sought
admission to a residential drug and alcohol treatment program.
A week later, DFYS filed a second amended child-in-need-
of-aid petition informing the court that Julie had disclosed that
Jack had sexually abused her and that Jack had been charged by
indictment in October 2000 with sexual abuse of a minor in the
first degree for sexual penetration of Julie in 1999.5
In May 2001 Jack pleaded guilty to a reduced charge of
one count of sexual abuse of a minor in the second degree.
Superior Court Judge Michael A. Thompson sentenced Jack to six
years in prison, with two years suspended, for a total of four
years of incarceration. Judge Thompson recommended that Jack "be
classified in a sex offender program" during incarceration at
Meadow Creek Correctional Center. Judge Thompson also placed
Jack on ten years probation following his release, during which
he was to have "no contact, direct or indirect" with his
daughters or any other females under the age of sixteen "without
the prior written permission of the sex offender treatment
provider and the probation officer." As a condition of
probation, Judge Thompson also ordered that Jack participate in
any sex offender treatment programs that the Department of
Corrections or a probation officer might require.
Jack appealed his sentence to the Alaska Court of
Appeals. He argued that the trial court erred in not postponing
the sentencing hearing to allow him to complete a sex offender
evaluation and also that his four-year prison sentence and ten-
year probation period were excessive.
After Jack was sentenced, DFYS filed a second report
for a permanency hearing in June 2001 recommending that the
superior court terminate Jack and Paula's parental rights and
that Julie and Nina be adopted by extended family. DFYS
concluded that Jack had failed to avail himself of parenting
programs or sex offender treatment programs before his
incarceration. Paula had not had contact with the girls since
September 2000 and still had not sought treatment for her drug
and alcohol abuse.
Jack began serving his sentence in June 2001. He
entered a sex offender treatment program at the Meadow Creek
Correctional Center on September 4, 2001. He admitted to a
history of drug addiction, sexual promiscuity, and violent
behavior. He also admitted to sexually abusing both daughters.
The sex offender treatment team at Meadow Creek
estimated that Jack needed at least twenty-nine months to
complete an individual treatment plan. The team also recommended
that he focus on his anger management, parenting, and substance
abuse issues. The team reported that Jack had also been involved
in a number of incidents involving "anger and crossing the
boundaries of others" while participating in the treatment
program.
DFYS filed a petition in November 2001 to terminate
parental rights of both parents. DFYS argued that because Jack
had sexually and physically abused his daughters and had failed
to fulfill the requirements of his case plan, the superior court
should terminate his parental rights. DFYS also pointed out that
because Jack's four-year prison sentence and ten-year probation
period forbade him from having any contact with his daughters or
any female under the age of sixteen without prior written
permission from a sex offender treatment program officer or
parole officer, he would not be able "to parent these children at
any time during their minority."
In January 2002 Jack was transferred to the Lemon Creek
Correctional Center. He was released on bail in February 2002
pending his sentence appeal. The treatment team at Meadow Creek
disagreed with his release.
The treatment team removed Jack from the sex offender
treatment plan at Meadow Creek in March 2002 for "non-compliance
with his Individual Treatment Plan." The treatment team observed
that "[h]e was not honest with group, staff, or Treatment Team .
. . lacked commitment . . . [and was] more focused on many issues
outside of the Program."
In its discharge summary, the treatment team identified
several risk factors that contributed to Jack's sexually abusive
behavior and recommended corresponding corrective treatment to
reduce the likelihood of future sexual abuse by Jack. These risk
factors included: Jack's "one-sided mindset," which caused him to
seek "that which would satisfy himself" and meant that he was
"lacking psychological insight . . . and empathy for others";
his substance abuse, sexual promiscuity, theft, and drug-dealing;
his conflicts with the children's mother, Paula; and his
unsupervised access to his minor daughters.
Jack's total criminality score on the Hare PCL-R scale
classified him as psychopathic. The treatment team also found
that he posed a "high" recidivism risk for sexual assault under
the Hanson/Harris rating. He was also diagnosed under DSM IV as
having polysubstance dependence and antisocial personality
disorder. The team classified Jack as a "Level III" offender, an
individual with "a higher risk to reoffend as an untreated sex
offender." As a Level III offender, he was ineligible "for
victim contact and/or family reunification where a former or
potential victim is in residence."
The court of appeals ultimately denied Jack's appeal
and affirmed the superior court's sentence and probation period.
The court concluded that "[g]iven the seriousness of [Jack's]
conduct and [his] apparent unwillingness or inability to directly
acknowledge that he sexually abused his daughters, Judge Thompson
was justified in . . . [choosing] a 10-year term of probation so
that [Jack] would be under Department of Corrections supervision
until his children were significantly older."
A hearing on DFYS's petition to terminate Jack and
Paula's parental rights commenced in May 2002. Paula did not
attend. Jack requested that the court continue the hearing so
that he could obtain a sex offender treatment evaluation. The
court agreed to bifurcate the hearing, permitting the state to
present its evidence on the scheduled trial date and allowing
Jack to present his evidence in June 2002. Lori Hudson, a DFYS
social worker, testified in May and on rebuttal in June that
although Jack completed general programs designed for the general
public, he had not completed the recommended individual treatment
programs which the case plan required. Jack testified in June
that he had completed the programs specified in his case plan.
He testified that he had completed parenting and anger management
programs and received an alcohol/substance abuse evaluation. He
also admitted that he had sexually abused both children.
Judge Stephens held that the division had proved by
clear and convincing evidence that Julie and Nina were children
in need of aid under AS 47.10.011(1), (6), (7), and (10)6 and
that it would not be in the children's best interests to return
them to Jack's custody because he "is an untreated sex offender
at a high risk to reoffend." The superior court further held
that the children should not be in Jack's custody because he had
"failed to remedy the conduct . . . that placed [his daughters]
in substantial risk of harm" by not completing the individualized
anger management, parenting, and alcohol/substance abuse programs
required by his case plan. The court noted that Jack did not
complete a sexual offender treatment program, and that the SOTP
requirement was the most important of the programs Jack's case
plan required. The court also held that DFYS had proved by a
preponderance of the evidence that it had made reasonable efforts
to allow the children to return to Jack or Paula. The court
therefore terminated Jack and Paula's parental rights and
responsibilities under AS 47.10.088. Judge Stephens then
committed both children to Department of Health and Social
Services custody for adoptive purposes under AS 47.10.080(d).
Jack appeals the termination of his parental rights.
His main argument is that it was clear error to find that he had
failed to remedy within a reasonable period of time the conduct
that placed the children at risk.
III. DISCUSSION
A. Standard of Review
We apply the clearly erroneous standard when
reviewing the superior court's factual findings.7
"[C]lear error arises only when our review of the
entire record leaves us with a definite and firm
conviction that the superior court made a mistake."8
We review de novo whether a superior court's factual
findings satisfy the applicable CINA rules and
statutes.9
B. The Trial Court Did Not Err in Holding that DFYS
Proved by Clear and Convincing Evidence that Jack
Failed Within a Reasonable Period of Time To Remedy the
Conditions that Placed His Children at Substantial Risk
of Harm.
Under AS 47.10.088(a)(1)(B), a court may terminate
parental rights to a child if the court finds by clear and
convincing evidence per AS 47.10.011 that the child is a child in
need of aid and 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.[10]
Jack does not challenge the finding that his children
are in need of aid under AS 47.10.011(1), (6), (7), or (10).
Rather, he challenges the trial court's finding that DFYS proved
by clear and convincing evidence under AS 47.10.088 that he had
failed to remedy, within a reasonable time, the conduct or
conditions that placed his daughters at substantial risk of harm.
Jack argues that because he has made "substantial efforts" to
remedy his behavior and deserves additional time to complete his
case plan, it was improper to terminate his parental rights.
Jack's arguments are unpersuasive. There is no
legitimate dispute about the facts discussed in Part II above.
The record demonstrates that Jack has not completed the sex
offender treatment program (SOTP) prescribed by his DFYS case
plan. While incarcerated, he participated in a SOTP for only
four months before he was released on bail to appeal his criminal
sentence and then was discharged from the program. The SOTP
treatment team determined that Jack needed at least twenty-nine
months to complete his individual treatment program. Having
participated in only four of the recommended twenty-nine months
of treatment, Jack remains essentially untreated. Jack testified
at his termination trial that Dr. Tony Mander, his own expert,
had recommended that Jack participate in a SOTP. Because Jack
must still participate in about two more years of treatment, he
cannot complete the remainder of the required SOTP within a
reasonable time.
Jack has had sufficient time to complete or
substantially complete a sex offender treatment program. DFYS
developed Jack's case plan in early 2000, soon after DFYS took
emergency custody of his children in December 1999. Before
incarceration, Jack did not seek sexual offender treatment
offered by DFYS. Nor did he avail himself of any of the services
DFYS offered him before he went to jail, because he was unwilling
to discuss the details of the sexual abuse of his daughters while
his criminal case was pending. Assuming there is a tension
between one's constitutional right not to incriminate oneself and
one's rights as a parent, time was nevertheless passing in the
lives of Jack's young children. At the conclusion of the
termination trial in June 2002, Jack's children had already been
in DFYS custody for nearly two and a half years. Jack has not
consistently demonstrated any initiative to remedy the behavior
that placed his daughters at a substantial risk of harm. Because
of the children's young age, it is especially important that they
be placed in permanent homes expeditiously.11 As DFYS
persuasively argues, the children "should not be denied
permanency while they wait for their father to work on his case
plan."
There is no doubt that Jack's propensities place his
children at risk of substantial harm. As an untreated sex
offender who was assessed as having a "high" risk of recidivism,
Jack poses a significant and particularized threat of further
sexual abuse. Further, the consequences of the threat he poses
are grave; his children have already been severely traumatized by
his conduct. Even after the children were removed from Jack's
custody, they were significantly traumatized by a brief encounter
with him in a public setting. Subsequent abuse would be even
more traumatizing.
The record also establishes that Jack did not complete
the individualized anger management, parenting, or substance
abuse treatment programs his case plan required. Although Jack
completed general anger management and parenting programs, and
received a substance abuse evaluation, he did not follow through
with any of the programs' individual recommendations for
treatment. The superior court did not clearly err in finding
that DFYS proved by clear and convincing evidence that Jack had
failed to remedy the conduct that placed the children in
substantial risk of harm. Nor did it clearly err in finding that
returning them to his custody would place them at substantial
risk of physical or mental injury.
Jack also argues that AS 47.10.080(o) applies to this
case. That statute permits a court to determine that a parent's
incarceration is a legitimate ground for terminating parental
rights under some circumstances.12 Jack argues that there is no
clear and convincing evidence under AS 47.10.080(o)(3) that he
failed to make adequate provisions for his children's care while
he was incarcerated. It is irrelevant here that Jack allegedly
made adequate provision for the children's care during his
incarceration. Alaska Statute 47.10.080(o) only applies when the
trial court terminates parental rights under AS 47.10.080(c)(3).
Jack's rights were terminated under AS 47.10.088, not AS
47.10.080(c).
Jack briefly asserts in the conclusion of his opening
brief that the trial court "also erred in finding that DFYS made
reasonable efforts to permit [Nina] and [Julie] to return to the
custody of their father." But this assertion is unsupported, and
the next few sentences in his brief argue a different issue:
that Jack made "substantial efforts" to remedy his conduct and
made "substantial progress" in his treatment. As seen above, the
trial court rejected those contentions, and the record clearly
establishes that Jack did not complete the individualized
treatment that he needs. This argument is consequently without
merit.
IV. CONCLUSION
We AFFIRM the termination of Jack C.'s parental rights.
_______________________________
1 This opinion uses pseudonyms for all family members.
2 Jack and Paula were both incarcerated in 1998. During the
parents' incarceration, the children lived with Jack's mother.
The State of Washington filed a petition against both parents for
child support on behalf of Julie. The court entered judgment
against Jack and Paula for child support for Julie and awarded
Jack custody of Julie. No mention was made of custody or child
support for Nina. Paula was still incarcerated when Jack brought
the girls to Alaska.
3 DFYS had investigated two previous reports of abuse and
neglect for Jack C.'s family, but those reports were not
confirmed.
4 This case was reassigned to Judge Stephens after Judge
Jahnke retired.
5 When Julie was interviewed by investigators, she stated that
her father put his hand inside her panties and touched her
genitals. Julie stated that she took her father's hand away and
told him, "Stop, Dad. I mean it." Julie refused her father's
request to touch his genitals. Julie added that her father told
her, "Don't tell . . . , or I'll get in trouble."
6 AS 47.10.011 provides in part:
[T]he 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:
(1) a parent or guardian abandoned the child
as described in AS 47.10.013, and the other
parent is absent or has committed conduct or
created conditions that cause the child to be
a child in need of aid under this chapter;
. . . .
(6) the child has suffered substantial
physical harm . . . as a result of conduct by
or conditions created by the child's parent
[or] guardian . . . ;
(7) the child has suffered sexual abuse, . .
. as a result of conduct by or conditions
created by the child's parent [or] guardian .
. . ;
. . . .
(10) the parent, guardian, or
custodian's 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 . . . .
7 See M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d
1141, 1143 (Alaska 2001).
8 Id.
9 Id.
10 AS 47.10.088(a)(1)(B); see also AS 47.10.088(b). AS
47.10.088(b) provides in part:
In making a determination under [AS
47.10.088(a)(1)(B)], the court may consider
any fact relating to the best interests of
the child, including
(1) the likelihood of returning the child
to the parent within a reasonable time based
on the child's age or needs;
(2) the amount of effort by the parent to
remedy the conduct or the conditions in the
home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct
will continue; and
(5) the history of conduct by or conditions
created by the parent.
11 See AS 47.05.065(5). AS 47.05.065 provides in part:
The legislature finds that
. . . .
(5) numerous studies establish that
(A) children undergo a critical attachment
process before the time they reach six years
of age;
. . . .
(C) it is important to provide for an
expedited placement procedure to ensure that
all children, especially those under the age
of six years, who have been removed from
their homes are placed in permanent homes
expeditiously.
12 AS 47.10.080(o) provides that:
For purposes of terminating a parent's
parental rights under the standards in (c)(3)
of this section, the court may determine that
incarceration of the parent is sufficient
grounds for determining that a child is a
child in need of aid under AS 47.10.011 as a
result of parental conduct and that the
parental rights of the incarcerated parent
should be terminated if the court finds,
based on clear and convincing evidence, that
(1) the period of incarceration that the
parent is scheduled to serve during the
child's minority is significant considering
the child's age and the child's need for an
adult's care and supervision;
(2) there is not another parent willing and
able to care for the child; and
(3) the incarcerated parent has failed to
make adequate provisions for care of the
child during the period of incarceration that
will be during the child's minority.
