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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stanley B. v. State, DFYS (04/09/2004) sp-5793
This has been WITHDRAWN - see Opinion # 5811
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
STANLEY B., )
) Supreme Court No. S-10978
Appellant, )
) Superior Court No. 4FA-00-89
CP,
v. ) 4FA-00-90 CP
)
STATE OF ALASKA, DFYS, ) O P I N I O N
)
Appellee. ) [No. 5793 - April 9,
2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Michelle McComb, Law Offices of
Michelle McComb, Fairbanks, for Appellant.
R. Poke Haffner, Assistant Attorney General,
Fairbanks, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
This appeal arises from the termination of Stanley B.'s
parental rights to his two children, Sean B. and Sarah B.1 The
Division of Family and Youth Services (DFYS) petitioned to
terminate Stanley's parental rights because of his current
incarceration and his history of criminal activity and substance
abuse. At the termination trial, the superior court under
authority of AS 47.10.080(o) and AS 47.10.088 terminated
Stanley's rights to his children. Stanley appeals the superior
court's findings that Sean and Sarah were children in need of
aid, that DFYS had made reasonable efforts to provide family
support services, and that termination served the children's best
interests. He also argues that he received ineffective
assistance of counsel at the trial. We affirm in all respects.
II. FACTS AND PROCEEDINGS
Stanley B. and Belinda F. are the parents of Sean B.
(born in January 1996) and Sarah B. (born in December 1997).
Stanley was arrested for theft by receiving in 1999 and
incarcerated. Soon after his arrest, Stanley was released to a
third-party custodian and then to a rescue mission. After his
arrest, Belinda cared for the children until she was arrested on
a drug-related charge. The children were placed with family
friends; when the family friends refused to continue to provide
care, the children were taken into state custody. The state
assumed custody of the children on June 23, 2000. At that time,
there was a warrant out for Stanley's arrest because he had
violated the terms of his release. He was eventually caught and
reincarcerated. The superior court entered an order on July 20,
2000 giving DFYS temporary custody of the children. On August 24
the parties stipulated that the children were children in need of
aid under AS 47.10.011(6) and (10); the superior court entered
findings and orders of adjudication to that effect on August 29,
2000.
Stanley remained in jail until May 2001, when he was
released to a halfway house. After violating the conditions of
his parole by attempting to smuggle marijuana into Fairbanks
Correctional Center, he was reincarcerated until September 17,
2001. The superior court conducted a permanency hearing on
October 19, 2001 and approved DFYS's permanency plan of
reunification with the father or adoption if reunification proved
unattainable. Stanley was rearrested two months later when he
and Belinda committed a robbery that he characterized as "a drug
deal gone bad." He was given a six-year sentence to serve. DFYS
filed a Petition for Termination of Parental Rights on January
22, 2002. Belinda relinquished her parental rights to Sean and
Sarah in May 2002. The superior court terminated her parental
rights on July 17, 2002.
DFYS's September 2000 case plan directed Stanley to
provide the names and addresses of any person he wished the
division to consider for placement of the children. Stanley
provided the names of several relatives and friends. DFYS denied
all of Stanley's initial placement preferences. The children
were placed with a preadoptive family in September 2002. The
termination trial took place on January 7, 2003. Superior Court
Judge Charles R. Pengilly entered his written findings and orders
terminating Stanley's parental rights on January 29, 2003.
Stanley appeals.
III. DISCUSSION
A. Standard of Review
We apply the clearly erroneous standard when reviewing
the factual findings that support the termination of parental
rights.2 We determine that a finding is clearly erroneous "when
a review of the entire record leaves us `with a definite and firm
conviction that the superior court has made a mistake.' "3
Whether the factual findings are sufficient to satisfy the child
in need of aid (CINA) statutes and rules is a question of law
that we review de novo.4 Under this standard, we " `adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy.' "5
B. The Superior Court Did Not Clearly Err in Finding
that Sean and Sarah Were Children in Need of Aid.
Except as provided in AS 47.10.080(o), a superior court
may terminate parental rights if it finds by clear and convincing
evidence that the child is a child in need of aid under AS
47.10.011,6 and that the parent has failed to remedy the conduct
or conditions in the home that place the child at substantial
risk of harm, or has failed to remedy the conduct or conditions
within a reasonable period of time.7 The court must also find by
a preponderance of the evidence that DFYS has made reasonable
efforts to provide family support services,8 and that termination
serves the best interests of the child.9 Per AS 47.10.080(o), a
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 if it finds by clear and
convincing evidence that: (1) the period of incarceration that
the parent is scheduled to serve during the child's minority is
significant; (2) there is no other parent who will 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. If these conditions are met, the superior court
is authorized to terminate parental rights.10 Under either
provision - AS 47.10.088 or AS 47.10.080(o) - the termination
order is entered under the authority of AS 47.10.080(c)(3).
1. Alaska Statute 47.10.080(o)
The superior court found that termination of Stanley's
parental rights was authorized under AS 47.10.080(o). It noted
that "[n]o party disputes that [Stanley's six-year] incarceration
is significant for purposes of AS 47.10.080(o)(1)." It found
that the termination of Belinda's parental rights satisfied AS
47.10.080(o)(2). Additionally, it found that Stanley had the
burden to make adequate provisions for care of the child, despite
the fact that his children were in DFYS custody when he most
recently returned to jail. The court found that Stanley failed
to meet the burden of making adequate provisions.
Stanley disputes the superior court's interpretation of
AS 47.10.080(o), arguing that he had no authority to make
adequate provisions for care of his children because they were in
DFYS custody at the time of his November 2001 arrest and
subsequent incarceration.
The superior court correctly interpreted AS
47.10.080(o)(3). The statute obligates the incarcerated parent -
not the state - to arrange for the children's care. Stanley's
burden was not relieved by the fact that his children were in
DFYS custody when he returned to jail. As the state argues, "the
statute is not intended to give parents whose children are
already in state custody when they are incarcerated an advantage
over parents whose children are in their own custody when they
are incarcerated." Although the state should not disadvantage an
incarcerated parent by blocking his efforts to make "adequate"
provisions for his children, it is not obligated to make those
provisions for him.
Stanley provided DFYS with the names of several
relatives and friends with whom he wanted the children placed.
The superior court found that DFYS had made "more than reasonable
efforts" to consider Stanley's stated preferences. Having
reviewed the record, we agree. Because none of Stanley's
placement options was facially "adequate," the conditions for
termination under AS 47.10.080(o) were met.
2. Alaska Statute 47.10.011
The superior court also found that Sean and Sarah were
children in need of aid under AS 47.10.011(2) and (10). Alaska
Statute 47.10.011(2) states that a court may find a child to be a
child in need of aid if it finds by a preponderance of the
evidence that "a parent, guardian, or custodian is incarcerated,
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, and the incarcerated parent has not made
adequate arrangements for the child." The superior court found
the evidence that supported termination of parental rights under
AS 47.10.080(o) (the significant period of Stanley's
incarceration, the mother's unavailability, and the unsuitability
of Stanley's placement proposals) sufficient to determine that
Sean and Sarah were children in need of aid for purposes of AS
47.10.011(2). Its finding was not clearly erroneous.
Alaska Statute 47.10.011(10) authorizes a court to find
a child to be a child in need of aid if it finds by a
preponderance of the evidence that
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; 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.
The superior court found that Stanley "has a
significant addiction to substances including alcohol and
cocaine, and that addiction impairs his ability to parent his
children, in part because it induces him to repeatedly indulge in
criminal behavior which results in his incarceration and
unavailability to them." The court pointed out that Stanley "has
never completed a substance abuse treatment program and the
likelihood of his spontaneous recovery without serious treatment
is low."
Stanley testified at trial that he used cocaine and
marijuana prior to his November 2001 arrest. He was
reincarcerated in July 2000 when he violated his parole by
attempting to smuggle marijuana into Fairbanks Correctional
Center. His Stipulation to Adjudication and Disposition of Child
in Need of Aid, which he personally signed in August 2000, states
that he "needs to deal with his substance abuse problem." He
admitted at trial that he continues to need drug treatment.
A preponderance of the evidence indicates that Stanley
B's drug addictions are at least partially responsible for his
current and past incarcerations, and that his frequent and
prolonged absences while incarcerated substantially impair his
ability to parent Sean and Sarah. There is also evidence that
those absences are harmful to the children. Thus the superior
court did not clearly err in finding that Sean and Sarah were
children in need of aid under AS 47.10.011(10).
C. The Superior Court Did Not Clearly Err by Finding
that Stanley Had Not Remedied the Conduct or Conditions
in the Home that Place Sean and Sarah at Substantial
Risk of Harm.
To satisfy AS 47.10.088(a)(1)(B)(i), a court must find
that the parent has not remedied the conduct or conditions in the
home that place the child at substantial risk of harm. The
superior court found that Stanley's repeated incarcerations and
substance abuse placed his children at substantial risk of harm.
It also found that Stanley had never completed a substance abuse
treatment program and that he was not likely to recover without
serious treatment. Stanley testified at the termination trial
that he continues to need drug treatment. The court's findings
were sufficient to satisfy AS 47.10.088(a)(1)(B)(i).
D. The Superior Court Did Not Clearly Err in Finding that
DFYS Had Made Reasonable Efforts To Provide Family Support
Services.
Before a court may terminate parental rights under AS
47.10.088, it must find by a preponderance of the evidence that
DFYS has made reasonable efforts to provide family support
services.11 Family reunification efforts are not required where
the conditions set forth in AS 47.10.080(o) are met.12 Likewise,
under AS 47.10.086(c)(10), the court may, for similar reasons,
dispense with the reasonable efforts finding.13 Stanley was
sentenced to six years of incarceration. Because this qualifies
as a significant period of his children's minority within the
meaning of AS 47.10.086(c)(10), the court was authorized to
dispense with the requirement of providing services to him.
Nevertheless, the superior court found that DFYS has
made reasonable efforts to provide family support services to
Stanley. After Stanley's September 17, 2001 release, DFYS had no
real opportunity to provide him any services in the brief time he
was out of custody before he committed his new offense and was
rearrested on November 28, 2001. DFYS arranged visitation
between Stanley and his children during the new incarceration
until the superior court ordered otherwise. While Stanley is
incarcerated, the Department of Corrections (DOC) rather than
DFYS has primary responsibility for providing services to him.14
Stanley testified that he receives substance abuse treatment and
parenting classes from DOC. The superior court did not clearly
err in finding that DFYS's reunification efforts, when considered
in their entirety, satisfy AS 47.10.086.15
E. The Superior Court Did Not Clearly Err in Finding that
Termination of Parental Rights Served the Best Interests
of Sean and Sarah.
A superior court must consider the best interests of
the children before it may terminate parental rights.16 Here the
superior court's findings state: "It is in the best interests of
these children to terminate the parental rights of their father.
Their need for a stable home and a permanent placement is
critical."
These findings are not clearly erroneous. Stanley's
inability to demonstrate that he can maintain sobriety outside
jail and his repeated incarcerations indicate that he is not a
reliable parent. A temporary placement, until Stanley is
released from prison, would not satisfy the children's immediate
need for permanency and stability. Given their ages, the
children risk long-term harm if permanent placement is not made
immediately.
F. Stanley Did Not Receive Ineffective Assistance of
Counsel During Termination Proceedings.
Stanley argues that he received ineffective assistance
of counsel at the termination trial. He claims that various
failures on the part of his attorney amount to a denial of his
due process right to effective assistance of counsel.
A parent has a due process right to effective
assistance of counsel in a termination of parental rights
proceeding.17 Whether this right was violated is a question of
law we consider de novo.18 The test is two-pronged: first, we
must find that the counsel's conduct either generally throughout
the trial or in one or more specific instances did not conform to
the standard of competence; second, the parent must show that the
lack of competency contributed to the conviction.19 We do not
need to address the first prong, because Stanley has not
demonstrated how any of the alleged errors actually harmed him.
He therefore has not satisfied the second prong of the test. We
consequently conclude that the contention of ineffective
assistance of counsel is without merit.
IV. CONCLUSION
We AFFIRM the superior court's decision terminating
Stanley's parental rights to Sean and Sarah.
_______________________________
1 This opinion uses pseudonyms for all family members.
2 Frank E. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003).
3 G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003) (quoting S.H.
v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 42 P.3d 1119, 1122 (Alaska 2002)).
4 Frank E., 77 P.3d at 717.
5 Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
6 AS 47.10.088(a)(1)(A).
7 AS 47.10.088(a)(1)(B).
8 AS 47.10.088(a)(2).
9 AS 47.10.088(c).
10 AS 47.10.080(c)(3).
11 AS 47.10.088(a)(2).
12 Cf. Frank E. v. State, Dep't of Health & Soc. Servs., Div.
of Family & Youth Servs., 77 P.3d 715, 722-23 (Alaska 2003)
(Matthews, J., concurring).
13 AS 47.10.086(c)(10) provides:
The court may determine that reasonable
efforts of the type described in (a) of this
section are not required if the court has
found by a preponderance of the evidence that
the parent or guardian is incarcerated and is
unavailable to care for the child during a
significant period of the child's minority,
considering the child's age and need for care
by an adult.
(Emphasis added.)
14 Martin N. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003); T.F. v.
State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 26 P.3d 1089, 1096 (Alaska 2001).
15 Frank E., 77 P.3d at 720 (stating that we examine state's
reunification efforts in their entirety to determine whether they
were reasonable).
16 AS 47.10.088(c).
17 S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 61 P.3d 6, 10 (Alaska 2002).
18 Id.
19 V. F. v. State, 666 P.2d 42, 46 (Alaska 1983).