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Martin N. v. State, Dept. of Health and Social Services (9/12/2003) sp-5736
Martin N. v. State, Dept. of Health and Social Services (9/12/2003) sp-5736
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
MARTIN N., )
) Supreme Court No. S-10754
Appellant, )
) Superior Court No.
v. ) 3PA-00-87 CP
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION OF )
FAMILY & YOUTH SERVICES, ) O P I N I O N
)
Appellee. ) [No. 5736 -
September 12, 2003]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Scott A. Sterling, Sterling &
DeArmond, P.C., Wasilla, for Appellant.
Gregg D. Renkes, Attorney General, Juneau,
and Toby N. Steinberger, Assistant Attorney
General, Anchorage, for Appellee. Erica
Kracker, Kracker Law Office, Palmer, Guardian
ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
A father appeals the decision of the superior court
terminating his parental rights under AS 47.10.088 and denying
his request to stay termination proceedings until the Alaska
Division of Family and Youth Services investigates possible
placement of his infant daughter with his parents or sister under
AS 47.14.100(e). Because the court properly terminated the
fathers rights under AS 47.10.088, and because the placement
issues were irrelevant to the termination proceeding, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Hannah G.1 and Martin N. met in June 1999, immediately
began living together in Talkeetna, and eventually discussed
marriage. Their relationship was marked by violence and
controlling behaviors in which Martin, among other acts, used a
gun to shoot Hannahs dishes; prevented her from leaving an
argument by grabbing her at the neck, holding her up against the
wall while kneeing her in the stomach, and finally pointing a gun
at her, at which time she was three months pregnant; shouting at
her in a bar and commanding her to get in his truck; and
threatening to kill her cat and dog. Hannah testified that on
many of these occasions Martin had been using alcohol. On
December 12, 1999, while Hannah was four months pregnant, Martin
threatened to kill her and then shot her once in her right
buttock. Martin was arrested and jailed in Palmer in connection
with the shooting on December 13. Hannah visited Martin in jail
frequently; she later claimed that she had done so because he
threatened harm to her.
On October 22, 2001 a jury convicted Martin of first-
degree assault and third-degree weapons misconduct, and he was
sentenced to fifteen- and three-year consecutive terms,
respectively, which was the presumptive sentence based on his
prior felonies. He will be eligible for parole in 2013. Martins
conviction is currently on appeal and he has maintained his
innocence throughout these proceedings, but he recognizes that he
is estopped from contesting the facts underlying his conviction.2
On May 4, 2000 Hannah gave birth to Martins daughter
Amanda N. Amanda is the third of Hannahs four children. The
custody of one older half-brother is shared between Hannah and
that childs biological father; another older half-brother lives
with Hannahs mother; and Amandas younger half-brother lives with
Hannah and her new husband. For several months after Amandas
birth, Hannah brought Amanda to visit Martin in jail nearly every
day. Since Amandas birth Hannah had been receiving help from the
Division of Family and Youth Services (DFYS) but was unable to
maintain consistent housing. In October 2000 DFYS took custody
of Amanda because Hannah and the baby were living in a car,
Hannah was not taking medication for bipolar disorder and was
acting irrationally, Amanda was inadequately clothed and fed, and
Amanda had a high fever. In November 2000 both parents
stipulated that Amanda was a child in need of aid on the grounds
of abandonment and neglect. Amanda was placed with a foster
family with whom she has lived ever since.
Upon hearing that Amanda had been taken into custody in
October 2000, Martin immediately contacted his sister and
stepmother in Spokane, Washington; the parties dispute whether
his sister contacted DFYS asking that Amanda be placed with her
at that time. Initially all parties agreed that it was best for
DFYS to work toward reunification of Amanda and Hannah, and that
this would be best achieved by leaving Amanda in her foster
placement where she would have frequent access to her mother,
visitation with her father, and access to her half-siblings, none
of which would have been possible had she been placed with her
fathers relatives in Washington or her maternal grandmother in
the Trapper Creek/Talkeetna area.
Martin had five visits with Amanda while he was in jail
at the Mat-Su Pretrial Facility. While the first visit was
successful, on the second visit in December 2000 Amanda became
agitated, began to cry a loud angry cry, and refused to stop for
several days, resulting in vomiting, diarrhea, and sleep
disturbances. When this also occurred on subsequent visits,
Amanda was referred to a doctor, who determined that the visits
should cease. There was no evidence that Martin had done
anything to provoke this reaction, and in fact Amandas foster
parents find that they cannot leave her in day care because she
similarly scream[s] bloody murder when they try.
DFYSs initial case plans for Martin, developed in
November 2000 and April 2001, relied on his insistence that his
incarceration was temporary, and consisted of parenting classes,
psychological evaluation, drug monitoring, and supervised visits.
He initially took several parenting classes while in jail, but
later was put in maximum security because of his in-jail
behavior, and as a result was unable to participate in further
classes because of restrictions on his movement. At trial,
Martins probation officer testified that Martin had been put into
maximum security status as a result of a high frequency and
volume of disciplinary problems. The social worker assigned to
Amandas case also testified that Martin threatened him with
bodily harm. Because Martin was in maximum security, he was
unable to comply with the final case plan drawn up in September
2001, which called for, among other things, his attendance at
further substance abuse and anger management classes.
DFYS eventually became concerned about the length of
time that Amanda had been in foster care. Because of that and
because she was becoming closely bonded with her foster parents,
DFYS petitioned to terminate Hannahs and Martins parental rights
in October 2001. Martin was found guilty of assault and weapons
misconduct and was sentenced on October 22. A permanent
placement hearing was held on November 9, 2001 before Superior
Court Judge Eric Smith, who held that the childs foster placement
should not be disturbed and converted it into a potentially
permanent living arrangement.
B. Proceedings
Hearings on the petition to terminate were held over
five days in March and April of 2002. At trial, the state did
not pursue termination of Hannahs parental rights, because her
condition had improved significantly after she began taking
proper medication and established a stable household. Hannahs
position at trial was that if Martins rights were terminated,
then she would relinquish hers, because she felt that it was in
the best interests of her child to be placed permanently with her
foster parents. The superior court terminated Martins parental
rights under AS 47.10.080(o) and AS 47.10.088, holding that
Amanda remained a child in need of aid under AS 47.40.011
subsections (2), (6), and (8). Martin appeals.
III. STANDARD OF REVIEW
We will reverse the factual findings of the superior
court in a termination of parental rights case only when those
findings are clearly erroneous, a standard which is met only if
we are left with a definite and firm conviction that a mistake
has been made after review of the entire record.3 When reviewing
factual findings, we view the evidence in the light most
favorable to the party prevailing below;4 we ordinarily will not
overturn a trial courts finding based on conflicting evidence.5
The issue of whether the trial courts findings are consistent
with the child in need of aid statutes is a question of law that
we review de novo,6 adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.7 We bear
in mind at all times that terminating parental rights is a
drastic measure. 8
IV. DISCUSSION
Martin argues that the superior court erred in
terminating his parental rights. He also argues that the
superior court erred by refusing to stay the termination
proceedings and refusing to order DFYS to investigate his parents
and sister as possible permanent placements for Amanda under AS
47.14.100(e). Because Judge Smiths factual findings were not
clearly erroneous, and because his legal rulings and application
of the law to the facts were proper, we affirm.
A. Martins Parental Rights Were Properly Terminated Under AS
47.10.088.
A. When the state petitions to terminate the rights of a parent
under AS 47.10.088, the superior court must make several findings
before termination may occur. First, it must find by clear and
convincing evidence that the child has been subjected to conduct
or conditions making the child a child in need of aid under AS
47.10.011.9 Second, it must find by clear and convincing
evidence that the parent has not remedied the conditions or
conduct placing the child at risk, or has failed to make
sufficient progress in a reasonable period of time such that the
child remains at substantial risk of physical or mental injury.10
Third, it must find by a preponderance of the evidence that DFYS
made reasonable efforts to help the parent remedy the problematic
behavior or conditions.11 Finally, it must find by a
preponderance of the evidence that termination of parental rights
is in the best interests of the child.12 Martin challenges the
superior courts findings on each of these issues.13
1. Alaska Statute 47.10.088(a)(1)(A): Amanda was a child in
need of aid on the bases of substantial risk of future physical
harm and future mental harm.
1. The superior court found that Amanda had been subjected to
conditions causing her to be a child in need of aid under AS
47.10.011. Martin contests the superior courts findings.14
a. AS 47.10.011(6): substantial risk of physical harm
a. The trial court found that Amanda was a child in need of aid
under AS 47.10.011(6), which provides in part that a child may be
found to be in need of aid if 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. Martin first argues
that the trial courts holding was erroneous because he has never
caused physical harm to Amanda in the past. But the trial courts
ruling was specifically directed to the likelihood of future harm
under AS 47.10.011(6); the state is not required to wait to
intervene until a child has suffered actual harm.15 Martin
responds that the finding that he poses a risk of future harm is
erroneous because his violent tendencies are not a condition
created by him. We disagree. We analyze the totality of the
States evidence in assessing the risk of future physical harm to
a child.16 Looking at all of the evidence, it is clear that
Martin has violent tendencies that pose a risk of future harm to
Amanda. Martin kneed Hannah in the abdomen and shot her in the
buttock while she was pregnant, and repeatedly threatened Hannah,
her possessions, and her pets with guns. While in jail, he
continued his threatening and controlling behavior toward Hannah,
and also threatened the social worker. Martin himself admitted
that he entered into confrontations with other prisoners while in
jail, and that his attitude and disciplinary history in jail was
poor, but he argues that he never directed violence at Amanda.
We considered a similar argument in In re J.A.,17 where a parent
argued that the previous violence between the parents had never
placed the child in danger. We rejected that argument, noting
that
[t]he violent behavior of [the parents] need
not have been directed at [the child] to
place him in physical danger. As another
court has acknowledged, [m]any violent acts
could be committed in the childs presence,
but not directed toward the child, in such a
manner as to actually endanger the childs
physical well-being.[18]
Martins reckless use of firearms, including shooting Hannah when
she was pregnant with Amanda, shows that he would pose a
significant risk of harm to Amanda in the future. Finally, and
contrary to Martins argument, it is irrelevant that much of the
testimony comes solely from Hannah, because the trial court found
her to be a credible witness, and we generally defer to the trial
court on the issue of witness credibility.19 We affirm the
finding of the superior court.
b. AS 47.10.011(8): substantial risk of mental harm
Alaska Statute 47.10.011(8) provides in part that a
child may be found in need of aid if conduct by or conditions
created by the parent . . . have . . . (B) placed the child at
substantial risk of mental injury as a result of (i) a pattern of
rejecting, terrorizing, ignoring, isolating, or corrupting
behavior that would, if continued, result in mental injury. The
superior court found that the pattern of domestic violence
described above constituted such terrorizing behavior that would,
if continued, result in mental injury to [Amanda].
Martins arguments regarding this subsection are
essentially the same ones that he raises above: that Hannah is
not a reliable witness, that his acts have never injured Amanda
herself, and that his prior acts have not yet placed Amanda at
risk. The statute itself directs the court to the question of
whether the child would be mentally injured if the behavior is
continued, thereby contemplating an analysis of future harm
similar to that in subsection .011(6). As discussed above, the
trial courts factual findings were amply supported by the record,
and we agree that Martins acts constitute terrorizing behavior.
We have previously held that witnessing domestic violence is
mentally harmful to children.20 There was clear and convincing
evidence that Martins acts toward Hannah create a significant
risk of mental injury to Amanda if continued.
2. Alaska Statute 47.10.088(a)(1)(B): Martin did not make
sufficient progress remedying the conduct or conditions likely to
cause harm.
Alaska Statute 47.10.088(a)(1)(B) requires the trial
court to find by clear and convincing evidence either that the
parent has not remedied his or her harmful conduct or conditions,
or that the parent has failed to make enough progress within a
reasonable time such that there is still a substantial risk of
harm to the child. The superior court found by clear and
convincing evidence that Martin had not remedied his violent
conduct and anger management problems, because Martin compiled an
impressive list of infractions while incarcerated based on his
violent and confrontational behavior, to the point that he [was]
in administrative segregation, and was thus unable even to obtain
treatment for his poor anger management skills. Martin protests
the trial courts finding that he committed infractions while in
prison, arguing that the nature of his infractions was admitted
over hearsay objections. But Martin himself admitted to
disciplinary problems and confrontations while in prison. When
this testimony is taken together with the testimony of Hannah and
the social worker that Martin threatened them while he was in
custody, the evidence is clear and convincing that Martin did not
remedy his behavior and did not make sufficient progress under AS
47.10.088(a)(1)(B).
In determining under AS 47.10.088(a)(1)(B) whether a
parent has remedied his or her conduct, we also consider factors
relating to the best interests of the child.21 Martin argues that
he was not given reasonable time to control his problems, did
well until visitation with Amanda was cut off, and will be in
jail for a sufficient length of time to be substantially improved
when he is released. The guardian ad litem responds that a
decade is not a reasonable period of time to remedy his behavior
based on Amandas age or needs.22 We agree. Amanda was not yet
two years old at the time of trial, and her need for permanency
must reasonably limit the length of time accorded to Martin to
remedy his behavior. The legislature has found that children
under six years of age suffer tremendously when their bonding
processes are interrupted, such that 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.23 By the time the trial ended in April 2002,
Amanda had been in foster care for eighteen months, three months
more than the upper limit set in AS 47.10.088(d)(1)24 for the
final disposition of a childs CINA placement. We affirm the
trial courts finding that Martin had not remedied his conduct
within a reasonable time.
3. Alaska Statute 47.10.088(a)(2): DFYS made reasonable efforts
to provide family support services to Martin.
1. Alaska Statute 47.10.088(a)(2) requires the court to find by
a preponderance of the evidence that DFYS has made reasonable
efforts to assist the parent in remedying harmful conduct or
conditions, as required by AS 47.10.086. The superior court
found that DFYS did all it could reasonably do until its efforts
were excused by Martins long sentence. Martin argues that DFYSs
efforts were unreasonable because it delivered only the first
case plan to him, a case worker met with him in person only once,
and later case plans required further classes and good behavior
even after he had been placed in maximum security. But we agree
with the trial court that DFYS drew up a suitable case plan,
including parenting classes and drug monitoring, and implemented
it through telephonic contact until March 2001 when Martins
maximum security status which resulted from Martins own actions
while in prison precluded him from taking further classes.
DFYS also made reasonable efforts to provide Martin with
visitation until it became clear that the visitation was harmful
to Amanda. While Martin is in prison, the Department of
Corrections rather than DFYS has primary responsibility for
providing services to him;25 after Martin was sentenced, the
superior court was empowered to find that DFYS was not required
to make efforts under AS 47.10.086(c)(10) because Martin was
incarcerated and . . . unavailable to care for the child during a
significant period of the childs minority. The superior court
made this finding. The superior court did not err in finding
that DFYS complied with the reasonable efforts requirement.
4. Alaska Child in Need of Aid Rule 18(c)(2)(C) and AS
47.10.088(c): Termination of Martins parental rights was in
Amandas best interests.
1. The superior court found by a preponderance of the evidence
under Alaska Child in Need of Aid Rule 18(c)(2)(C) that
termination of parental rights was in Amandas best interests.
Martin disagrees and argues that it would be in the childs best
interests instead to be gradually transitioned back into the care
of her mother so that she could be raised by immediate family.
But the question whether it would be in Amandas best interests if
Martins rights were terminated is different from the question
where Amandas permanent placement should be. The court found
that Martin is an untreated violent offender with little prospect
at present of learning to control his behavior, Amanda does not
know him, and at nearly two years old, she was of an age at which
it was important not to disrupt the bonding that had occurred
between her and her foster parents. These findings met AS
47.10.088(c)s requirement that the court . . . consider the best
interests of the child.
B. The Trial Court Properly Denied Martins Request To Stay the
Termination Proceedings Pending Investigation of Placement of
Amanda with Martins Relatives Under AS 47.14.100(e).
A. Martin claims that the trial court erred when it refused to
stay his termination trial pending placement of Amanda with his
relatives in Washington under AS 47.14.100(e), and in the
alternative asks that Amanda be placed with his relatives whether
his parental rights are terminated or not. The existence of
relatives with whom Amanda might have been placed, a factor
affecting DFYS foster placements under Title 47.14 of the Alaska
Statutes, is unrelated to whether Martins parental rights should
have been terminated, a decision governed by AS 47.10.26
Therefore there was no reason to stay his termination trial
pending the outcome of that investigation. Moreover, we have
recently held that [i]n reaching its termination decision, the
superior court was not required to revisit its earlier placement
decision[,] and its termination order superseded all earlier
placement orders.27 If Martin or his relatives wished to
challenge the placement of Amanda with a foster family, they
could have done so by asking for internal DFYS review or by
bringing the matter specifically to the superior court on its own
merits;28 but the superior courts termination order now renders
earlier issues of placement moot.29 The superior court properly
denied Martins stay request.
V. CONCLUSION
Because the superior court properly terminated Martins
parental rights under AS 47.10.088, and because placement issues
were irrelevant to the termination proceeding, we AFFIRM the
decision of the superior court.
_______________________________
1 Pseudonyms have been used throughout this opinion to
protect the identity of the parties.
2 Lyman v. State, 824 P.2d 703, 705 (Alaska 1992);
Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 952
(Alaska 1990).
3 V.S.B. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 45 P.3d 1198, 1203 (Alaska 2002).
4 In re J.L.F. & K.W.F., 828 P.2d 166, 170 n.12 (Alaska
1992), superseded on other grounds by statute, ch. 99, 1, SLA
1998.
5 In re Friedman, 23 P.3d 620, 625 (Alaska 2001) (We
ordinarily will not disturb findings of fact made upon
conflicting evidence.).
6 V.S.B., 45 P.3d at 1203.
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 R.J.M. v. State, 946 P.2d 855, 861 (Alaska 1997)
(quoting J.L.F., 828 P.2d at 170), both of these cases superseded
on other grounds by statute, ch. 99, 1, SLA 1998).
9 AS 47.10.088(a)(1)(A).
10 AS 47.10.088(a)(1)(B).
11 AS 47.10.088(a)(2) (citing AS 47.10.086).
12 Alaska Child in Need of Aid Rule 18(c)(2)(C); see also
AS 47.10.088(c).
13 Martin additionally challenges the trial courts
termination of his parental rights on the basis of AS
47.10.080(o). Because we affirm the trial courts holding
terminating parental rights under AS 47.10.088, it is not
necessary to reach the issue of whether Martins parental rights
were also properly terminated under AS 47.10.080(o).
14 The trial court found that Amanda was a child in need
of aid on three grounds: AS 47.10.011(2) (one parent
incarcerated, the other parent absent or created conditions
causing child to be in need of aid, and incarcerated parent has
not made adequate arrangements for the child), AS 47.10.011(6)
(child has suffered or is at substantial risk of suffering
substantial physical harm as result of parents conduct), and AS
47.10.011(8) (child has suffered or is at substantial risk of
suffering mental injury as result of parents conduct). Martin
challenges all three bases for the trial courts child in need of
aid finding. Because we affirm the trial courts holding that
Amanda was a child in need of aid on the bases of AS 47.10.011(6)
and (8), it is not necessary to reach the third issue of whether
she was also a child in need of aid on the basis of AS
47.10.011(2).
15 See O.R. v. State, Dept of Health & Soc. Servs., 968
P.2d 93, 98 (Alaska 1998) (holding that state is not required to
wait for actual harm to child before intervening on the basis of
AS 47.10.011(6) due to parental neglect).
16 In re J.A., 962 P.2d 173, 178-79 (Alaska 1998).
17 962 P.2d 173 (Alaska 1998).
18 Id. at 178 (quoting Lane v. Jefferson County Child
Welfare Unit, 564 S.W.2d 130, 132 (Tex. Civ. App. 1978),
overruled on other grounds by In re B.B. and P.P., 971 S.W.2d 160
(Tex. Civ. App. 1998)).
19 See, e.g., Erica A. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 66 P.3d 1, 8 (Alaska
2003).
20 J.A., 962 P.2d at 178; Borchgrevink v. Borchgrevink,
941 P.2d 132, 140 (Alaska 1997).
21 AS 47.10.088(b).
22 AS 47.10.088(b) provides that in making a determination
about whether a parent has remedied the conduct or conditions
placing the child at substantial risk of harm, 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 childs age or needs.
23 AS 47.05.065(5).
24 AS 47.10.088(d) provides in relevant part that the
department shall petition for termination of a parents rights to
a child, without making further reasonable efforts, when a child
is under the jurisdiction of the court under AS 47.10.010 and
47.10.011, and (1) the child has been in foster care for at least
15 of the most recent 22 months.
25 A.M. v. State, 945 P.2d 296, 305-06 (Alaska 1997),
superseded on other grounds by statute, ch. 99, 1, SLA 1998.
26 See, e.g., Erica A. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 66 P.3d 1, 10 (Alaska
2003) (holding that failure of DFYS to place child with relative
does not entitle parent to reversal of termination order).
27 Id.
28 Adoption of L.E.K.M., 70 P.3d 1097, 1101 & n.12 (Alaska
2003); Erica A., 66 P.3d at 10; In re W.E.G. & J.R.G., 710 P.2d
410, 413 (Alaska 1985).
29 Erica A., 66 P.3d at 10.
