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Vivian P. v. State (10/16/2003) sp-5744
Vivian P. v. State (10/16/2003) sp-5744
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
VIVIAN P., )
) Supreme Court No. S-10784
Appellant, )
) Superior Court No.
v. ) 3KO-01-00011 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION ) [No. 5744 - October 16, 2003]
OF FAMILY & YOUTH SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Michael
G. Hotchkin, Assistant Attorney General,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
The superior court terminated Vivian P.'s parental
rights. Vivian appeals the trial court's determination that
Jason is a child in need of aid, that the Department of Health &
Social Services, Division of Family & Youth Services (DFYS) made
reasonable efforts to reunite the family, and that, in the
alternative, DFYS was not required to make reasonable efforts
because the child had been subjected to mental and physical harm.
Because the superior court did not err in terminating Vivian P.'s
parental rights, we affirm its decision.
II. FACTS AND PROCEEDINGS
A. Factual History
Jason B. was born in December 1994 to Vivian P. and
Jason B., Sr.1 The couple had a previous child, Anne. Jason
lived with his mother for about a year until she and Jason B.,
Sr. were both incarcerated in California. For the next four
years, Jason lived with his paternal grandmother.
In 1999 Vivian was released on parole and regained
custody of Jason. She married Mark P. and in 2000 moved the
family to Kodiak, where she gave birth to another child.
Jason, who has attention deficit disorder and
oppositional defiant disorder, began kindergarten at Main
Elementary School in Kodiak. While Jason had some initial
problems adjusting, he started to settle into a school routine.
But on three separate occasions in a nine-month period from
September 2000 to May 2001, Vivian withdrew Jason from school and
voluntarily checked him into North Star Hospital in Anchorage for
child psychiatric care.
After returning to school after his first hospital
commitment, Jason's behavior regressed, and the school assigned a
team of counselors and special educators to help him. Vivian
claimed that Jason was having psychotic episodes, not eating, and
repeatedly vomiting. Neither the school nor any hospital
employees observed Jason exhibiting these problems.
After withdrawing Jason from school and checking him
into the North Star Hospital a second time, Vivian told Dr.
Lillibridge, a pediatric gastroenterologist, that Jason had lost
twenty-five percent of his body weight and was having bouts of
vomiting. Based on the mother's reports, Dr. Lillibridge decided
to surgically place a feeding tube in Jason. Although Dr.
Lillibridge instructed Vivian that the feeding tube was only to
be used for home feedings, when Jason returned to school, Vivian
showed off Jason's feeding tube to four school employees and told
the school officials to use the feeding tube at school. During
this meeting, Jason reportedly looked embarrassed and defeated,
whereas Vivian reportedly seemed happy and excited. During
Jason's third hospital stay, Dr. Lillibridge removed the feeding
tube. Additionally, Jason reported numerous incidents of
physical abuse at home, including being hit with a hanger and
being forced to eat jalapeno peppers as punishment.
B. Procedural History
Due to Jason's repeated school absences, his reports of
being abused, and the insertion of a feeding tube, the school
filed a report of harm with DFYS. Subsequently, DFYS took
emergency custody of Jason while he was at North Star Hospital
for a third time. DFYS filed a petition asking for an
adjudication that Jason was a child in need of aid. In August
2001 Superior Court Judge Donald D. Hopwood found Jason to be a
child in need of aid, ruling that Vivian's conduct had inflicted
serious physical and mental harm. Jason was placed in two
successful foster homes, eventually being sent to his paternal
grandmother who had raised him from the time of the mother's
incarceration until her release.
DFYS filed a petition to terminate Vivian's parental
rights in July 2002. After the adjudication that Jason was a
child in need of aid, but before the termination hearing, Vivian
returned to California without first saying goodbye to her son or
informing DFYS of her plan to leave. Upon checking in with a
parole officer in California, she was re-incarcerated for
violating her parole, as she did not have the proper permission
to travel back to California. Since being incarcerated, Vivian
has not attempted to contact Jason through letters or phone
calls.
The court held a termination hearing in August 2002 and
terminated Vivian's parental rights, issuing written findings of
fact and conclusions of law in support of that decision in
November 2002. Vivian now appeals.
III. STANDARD OF REVIEW
We apply the "clearly erroneous" standard of review
when analyzing a trial court's findings of fact regarding the
termination of parental rights.2 "Clear error arises only when
our review of the entire record leaves us with a definite and
firm conviction that the superior court has made a mistake."3
"Whether the superior court's factual findings satisfy applicable
child in need of aid statutes and rules is a question of law that
we review de novo."4
IV. DISCUSSION
In order to terminate a parent's rights and
responsibilities in a child in need of aid (CINA) case, the state
must show by clear and convincing evidence that:
(A) the child has been subjected to
conduct or conditions described in AS
47.10.011; and
(B) 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.[5]
Moreover, the state must prove by a preponderance of
the evidence that DFYS has made reasonable efforts to reunite the
family or that reasonable efforts were not necessary because a
parent had "subjected the child to circumstances that pose a
substantial risk to the child's health or safety; these
circumstances include abandonment, sexual abuse, torture, chronic
mental injury, or chronic physical harm."6
Vivian appeals the trial court's determination
that Jason is a child in need
of aid, that DFYS made reasonable efforts to reunite the family,
and that, in the alternative, DFYS was not required to make
reasonable efforts because Vivian subjected Jason to chronic
mental injury and physical harm.
A. Clear and Convincing Evidence Supports the Trial
Court's Determination that Jason Is a Child In Need of
Aid.
The trial court determined based on clear and
convincing evidence that Jason was a child in need of aid. Laila
Gonzales, Jason's second foster parent; Mary Gray, a DFYS social
worker; and Dr. Welby Jensen, a psychiatrist in Kodiak, testified
that Jason told them that he was hit with hangers and belts and
that he was forced to eat jalapeno peppers as a form of
punishment. Moreover, Ms. Gray, a sixteen-year employee of DFYS,
testified that, in her expert opinion, Jason's reports of these
incidents were consistent and not likely to be fabrications.
Physical marks on Jason supported his claims. Dr. Daniel
Mardones, a child and pre-teen psychiatrist at North Star
Hospital in Anchorage, testified that Vivian probably suffered
from Munchausen's Syndrome By Proxy, a mental health disease
marked by a pattern of false reports that Jason showed signs of
illness. Dr. Jensen stated that his observations of Vivian's and
Jason's conduct were consistent with Dr. Mardones's diagnosis.
Dr. Mardones also testified that Jason suffers from post-
traumatic stress syndrome because of the alleged physical abuse
and the feeding tube incident. No doctor disputed this
testimony. Vivian's claims regarding Jason's psychotic behavior
and eating problems were not verified by anyone, including her
own witnesses, and were deemed by the superior court to be
unreliable. On the contrary, many witnesses claimed that Jason
was eating well and that his behavior had improved upon enrolling
in school in Kodiak.
Joanna McFarlin, who works with students who have
counseling issues at East and Main Elementary Schools in Kodiak;
Jennifer Eubank, a special education teacher; and Patricia Gibbs,
a school administrator and Jason's initial foster parent,
testified that Vivian was callous toward Jason's feelings when
she showed a room of four school officials Jason's feeding tube
and insisted, despite the doctor's orders to the contrary, that
the feeding tube be used at school. During this meeting,
testimony indicated that Vivian seemed happy and excited with the
feeding tube and Jason looked stunned and defeated. In
particular, Ms. McFarlin testified:
[Jason] . . . walked in really like he was in
pain and his lips were dry and kind of caked
and [Vivian] looked - she smiled at all of us
and she looked happy and she explained that -
she had him sit down and she lifted up his
shirt and she showed us that he had a feeding
tube and she looked - I mean the only word
that comes to my mind is gleeful and [Jason]
looked like he was in pain and he looked
embarrassed.
Lola Ann Lind, a case manager at Providence Kodiak
Island Mental Health Center, testified that when she visited
Vivian's home, Vivian seemed to show more affection for her cat
than for Jason. Janet Brenteson, a DFYS social worker, also
testified that Vivian seemed unattached to Jason, as Vivian did
not react warmly when she saw Jason after he had been placed in a
foster home.
In support of its ruling, the trial court found that
Jason had suffered multiple incidents of being hit with hangers
and belts, that Vivian force-fed him, and that he was forced by
his stepfather to eat jalapeno peppers as a form of punishment.
The court also found that Vivian likely suffers from Munchausen's
Disorder by Proxy. According to the trial court, Vivian, as a
result of this disorder, manufactured claims that Jason was
suffering psychotic episodes, encountering serious bouts of
vomiting, and losing up to twenty-five percent of his body
weight. The court noted that no other person who observed Jason
on a regular basis agreed with Vivian's assessment of Jason's
lack of well-being. According to the superior court, a
pediatrician, relying on Vivian's reports and assessment,
inserted a feeding tube into Jason, which was later removed
because it was deemed unnecessary. The superior court held that
as a result of the physical abuse and the insertion of the
feeding tube, Jason suffered from post-traumatic stress syndrome.
Moreover, the court found that Vivian withdrew Jason
from school and checked him into a children's psychiatric
hospital three times during a nine-month period. It also found
that Vivian exhibited little attachment to Jason, seemed more
interested in her cat, and seemed oblivious or indifferent to her
son's feelings when she spoke to others about him in his presence
and callously showed off his feeding tube. Vivian, the court
found, left Alaska without saying goodbye to Jason when he was in
foster care. The record supports the trial court's factual
determinations.
The trial court concluded that Jason was a child in
need of aid because of Vivian's incarceration, her failure to
obtain necessary treatment for Jason, physical harm and threat of
continued physical harm caused to Jason by Vivian, mental injury
and the threat of continued mental injury caused to Jason by
Vivian, and the risk that Jason would be harmed or injured due to
Vivian's mental illness.7 The trial court found the evidence to
be so overwhelming that it determined beyond a reasonable doubt
that Jason was a child in need of aid. We agree that these
factual findings satisfied the CINA statutes.
B. DFYS Did Not Make Reasonable Efforts To Reunite
Vivian and Jason.
Vivian argues that the court erred in determining that
DFYS made reasonable efforts to reunite Vivian and Jason. The
superior court found that the state had engaged in reasonable
efforts to assist Vivian in being reunited with her child because
before DFYS removed Jason from Vivian's home, "service providers
normally involved by DFYS attempted to correct the situation and
provide assistance" and Vivian "did not avail herself of those
services." The superior court also found that "efforts to assist
[Vivian] continued after DFYS became involved, and [Vivian] still
did not utilize the offered services or change her behavior."
In making this finding, the superior court implied that
DFYS did not have to make reunification efforts because services
were provided by school personnel before commencement of the CINA
proceeding:
Before the DFYS folks became involved
directly in this, there were huge efforts
made by many other service providers, the
same ones that the department would refer
people to and utilize and in fact did after
they became involved to correct the
situation. . . . I can't require the
department to simply cover the same ground
that was done before and did not succeed
although services were offered.
But under AS 47.10.086(a), DFYS must make reasonable
efforts to reunite the family. Furthermore, in A.M. v. State, we
noted that "[w]e have never suggested that the scope of the
State's duty to make active remedial efforts should be affected
by a parent's motivation or prognosis before remedial efforts
have commenced."8 And there is good reason to require that
reasonable efforts be made after DFYS's intervention. Prior to
DFYS's intervention, a parent is unaware that failure to take
advantage of services provided could lead to the loss of parental
rights. After DFYS intervention, that parent is aware of the
consequences of non-compliance and may have more incentive to
take advantage of services offered to improve the home.
Consequently, to the extent that it relied on services
offered and refused prior to DFYS's involvement with the parent
to reach its conclusion that reasonable efforts had been made,
the trial court erred.9
C. While DFYS Needed the Court's Approval Before
Ceasing Reasonable Efforts, the Court Did Not Err in
Determining Reasonable Efforts To Be Unnecessary.
In the alternative, the superior court ruled that DFYS
was excused from the requirement to make reasonable efforts.
Alaska Statute 47.10.086(c)(1) provides that "reasonable efforts
. . . are not required if the court has found by a preponderance
of the evidence that the parent . . . has subjected the child to
circumstances that pose a substantial risk to the child's health
or safety." According to the statute, "these circumstances
include abandonment, sexual abuse, torture, chronic mental
injury, or chronic physical harm." Alaska Statute
47.10.086(c)(1) incorporates into Alaska law the federal Adoption
and Safe Families Act of 1997 (ASFA), which is designed to
eliminate remedial requirements in extreme circumstances.10 At
the termination hearing, Judge Hopwood determined that Vivian and
Mark P. "continuously physically and mentally abused [Jason]
during their nine months together in Kodiak." The superior court,
therefore, concluded that "[Vivian] subjected [Jason] to . . .
chronic mental injury or chronic physical harm," making
reasonable efforts unnecessary.
Vivian argues that the court's determination at the
termination hearing that reasonable efforts were unnecessary was
erroneous because AS 47.10.086 anticipates a hearing at which the
court decides whether reasonable efforts are required. "The
plain language of the statute requires notice and an opportunity
to be heard before the state can stop making reasonable efforts."
But Vivian never raised this objection at trial. At the
beginning of the termination trial, the state argued that the
"reasonable efforts requirement . . . can be dispensed with if we
simply show that the parent has subjected the child to
circumstances . . . [that] include chronic mental injury or
chronic physical harm," and "the court can see . . . this
requirement by reading 47.10.086(c)(1) and (c)(7)." Vivian's
attorney did not object to this argument, instead responding, "I
don't dispute the statutory outline that the state . . . [has]
made today." Vivian's attorney acknowledged that "[t]he court
did make findings last year that physical harm had in fact
occurred at the hands of [Vivian]" and conceded that the court
"may determine that reasonable efforts are not required but it
also may determine that reasonable efforts were required."
Despite conceding that the court could find reasonable efforts to
be unnecessary, Vivian asked the court "to find that reasonable
efforts were necessary and that they were not made." To which
the court responded: "How would I do that if from the August
2001 findings and conclusions there's already been a
determination that [Jason] suffered substantial physical harm as
a result of abusive and neglectful conduct by the mother?" By
conceding that the court could find reasonable efforts to be
unnecessary, Vivian failed to preserve this issue for appeal. We
will not address an issue on appeal that was not raised at trial.11
But we agree with Vivian's observation that the
statutory framework prevents DFYS from deciding on its own, prior
to a hearing or order by the court, that reasonable efforts are
unnecessary and can be dispensed with pursuant to AS
47.10.086(c)(1). The statutory language instructs the court, and
not DFYS, to make the determination regarding the need for
reasonable efforts: "The court may determine that reasonable
efforts . . . are not required . . . ."12 The statute further
requires a court to hold a permanency hearing thirty days after
determining that reasonable efforts are not necessary: "If the
court determines . . . that reasonable efforts under (a) of this
section are not required to be provided, the court shall hold a
permanency hearing for the child within 30 days after the
determination."13 The cessation of reasonable efforts should only
occur when a court determines those efforts to be unnecessary.
Consequently, DFYS can not unilaterally determine that reasonable
efforts are unnecessary, waiting until the termination
proceedings to argue that they are excused.14
But the fact that DFYS is precluded from determining on
its own that reasonable efforts are unnecessary under AS
47.10.086(c)(1) does not preclude the court from determining
after commencement of a termination trial that the reasonable
efforts requirement is excused. Indeed, we decided on appeal in
J.S. v. State that unification efforts were excused. In that
case, a sexually abusive father appealed the termination of his
parental rights, claiming that the state did not meet the Indian
Child Welfare Act's requirement for active remedial efforts.15
The superior court had "found that it was uncontroverted that the
state failed to offer any type of active remedial or
rehabilitative services to Jack."16 Consequently, "[t]he superior
court held the record open for sixty days in order to allow the
state to develop and offer a treatment plan to Jack."17 In
reviewing the superior court's ruling on remedial efforts, we
concluded that remedial efforts were unnecessary because ASFA
excused them due to sexual assault.18 We reasoned that "the
enactment of [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."19 We further explained that "[t]his provision
of the federal act has been adopted in Alaska as AS
47.10.086(c)(1)," which eliminates the remedial requirements in
cases involving chronic physical and mental abuse in addition to
sexual abuse.20 Thus, we concluded that the superior court did
not err in terminating the father's parental rights because
rehabilitative efforts are not necessary in AS 47.10.086(c)(1)
cases.
At the adjudication hearing in this case, the superior
court found beyond a reasonable doubt that Jason was a child in
need of aid because, in part, the physical harm he suffered "is
substantial and likely would continue to be substantial . . .
[and] [t]he mental injury exists now, and he remains at an
extraordinary risk of continuing mental injury." Had DFYS asked
the superior court at the adjudication hearing to determine that
reasonable efforts were not necessary because Jason had been
subjected to chronic mental injury or physical harm, the court
could have found reasonable efforts to be unnecessary. The
evidence in the record supports the superior court's alternative
conclusion at the termination hearing that reasonable efforts
were unnecessary, and we affirm its decision.
V. CONCLUSION
Because the trial court did not err in finding Jason to
be a child in need of aid, and because the trial court did not
err in finding reasonable efforts to be unnecessary, we AFFIRM
the decision to terminate Vivian P.'s parental rights.
_______________________________
1 Pseudonyms are used to protect the parties' privacy.
2 S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002).
3 Id.
4 Id. at 1122-23.
5 AS 47.10.088.
6 AS 47.10.086(c)(1); AS 47.10.088(a)(2).
7 AS 47.10.011(2), (4), (6), (8), (11).
8 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds
by In re S.A., 912 P.2d 1235, 1239 (Alaska 1996) (emphasis
added).
9 The only evidence which suggests that DFYS made reasonable
efforts after its intervention comes from Mary Gray, a DFYS
social worker, who testified that "prior to DFYS intervention
those services were - were being made available and they were not
taken advantage of at that time either. And certainly for the
last 15 months they have been in a formal way [provided] by DFYS
administratively as well as through the court." However, the
trial court apparently did not rely on her testimony when making
its findings of reasonable efforts, instead erroneously taking
into account "all of the efforts that were done even before the
state became involved." A preponderance of the evidence does not
show that DFYS made reasonable efforts to reunite the family.
10 J.S. v. State, 50 P.3d 388, 392 & n.13 (Alaska 2002).
11 Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska
2001).
12 AS 47.10.086(c).
13 AS 47.10.086(d)(1).
14 As a matter of policy, requiring DFYS to seek from the court
a determination that reasonable efforts are excused will help to
prevent post-hoc justifications for failing to provide reasonable
efforts. DFYS must first ask a superior court for a reasonable
efforts hearing before ceasing to make such efforts.
15 50 P.3d 388, 389, 391 (Alaska 2002).
16 Id. at 390.
17 Id.
18 Id. at 391-92.
19 Id. at 392.
20 Id. at 392 n.13; AS 47.10.086(c)(1).
