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Rick P. v. State, Office of Children's Services (4/1/2005) sp-5882
Rick P. v. State, Office of Children's Services (4/1/2005) sp-5882
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
RICK P., ) Supreme Court No. S-11461
)
Appellant, ) Superior Court Nos.
) 3KN-99-92 CP
v. ) 3KN-01-54 CP
)
STATE OF ALASKA, OCS, ) O P I N I O N
)
Appellee. ) [No. 5882 - April 1, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Megan R. Webb,
Assistant Attorney General, Anchorage, Gregg
D. Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Rick P. appeals orders terminating his parental rights
over his children Dylan and Diane.1 The superior court found
that Rick shifted households frequently and assaulted his
domestic partners, and that this behavior, among other things,
caused Dylan mental injury sufficient to support terminating
Rick's rights. Rick's main argument on appeal is that his
conduct was not necessarily the cause of Dylan's serious
emotional problems. We reject this as unsupported by the record.
The superior court also found that Rick failed to maintain
contact with his daughter Diane for several years, and that this
constituted abandonment sufficient to support terminating Rick's
rights over her. Rick argues that this was unfair, because for
much of Diane's childhood he was unsure whether he was the
biological father, and was in prison at other times. But there
were periods when Rick was out of prison and he had claimed
paternity in a formal custody pleading; we think under these
circumstances his failure to maintain contact was abandonment.
We therefore affirm the orders terminating Rick's parental rights
over both children.
II. BACKGROUND
Rick did not testify or call any witnesses at trial,
and the facts presented below are undisputed except as noted.
A. Dylan
Dylan was born in January 1995. Rick and Dylan's
mother split up soon after Dylan was born; Rick got fifty-one
percent custody and the mother got forty-nine percent. In August
1999 the predecessor to the Office of Children's Services (OCS)
received a report of harm, to the effect that the mother's
husband had sexually abused Dylan. Around this time, OCS also
received a report that Rick was leaving Dylan with multiple
caregivers (including a friend who had been recently released
from jail), that Rick and his girlfriend engaged in domestic
violence, and that Dylan was seen "playing in cocaine."
This led OCS to remove Dylan in November 1999 from
Rick's custody. He was placed with a foster family. Dylan
stayed with this family between approximately November 1999 and
August 2001. He initially showed disturbing behavior - choking a
cat, killing a pet duck, fondling his foster mother - but over
time became better behaved as he settled in with the foster
family. During this period Dylan's parents stipulated to an
adjudication of Dylan as a child in need of aid under AS
47.10.011(6) (physical harm), (7) (sexual abuse), and (9)
(neglect).
Meanwhile, in December 1999, Rick was arrested and
ultimately convicted for assaulting his girlfriend. He was
incarcerated until April 2000. By the fall of 2000 Rick began
participating in his case plan, and married a woman named Leigh
B. Leigh had prior convictions for assault. Dylan visited with
Rick and Leigh on the weekends, which seemed to go well but also
appeared to be correlated with increased misbehavior upon his
return to school and the foster home.
By August 2001 Rick had completed all the requirements
of his case plan, and Dylan was returned to Rick's home. Rick's
case plan had included anger management and psychological
assessments by Dr. Paul E. Turner and Dr. Jackie Bock. Prior to
Rick's resumption of custody, Dr. Turner found that Rick had
significant parenting deficits, particularly vis-a-vis Dylan's
problems with sexuality and aggression. In his sessions with
Rick, Dr. Turner stressed the importance of providing a secure
home for Dylan when Rick resumed custody, and keeping track of
Dylan's academic program.
Dylan stayed with his father from August 2001 to
December 2002, when OCS removed him. This period was
characterized by a marked increase in Dylan's anger and sexual
misbehavior, including an incident in which Dylan shoved a girl's
head into his crotch. Toward the end of this period, Rick began
shifting households and domestic partners rapidly. In June 2002
Leigh kicked Rick out and he moved in with another woman, Stella.
In November 2002 Rick and Dylan apparently became somewhat
vagrant, shifting multiple times between Stella's house and
Leigh's house, with a brief stay in the house of a woman Rick
claimed was his sister. Domestic violence and absenteeism
remained a problem in these households. Leigh got a domestic
violence restraining order against Rick, and claimed that Rick
was never at home. Stella claimed that she was Dylan's primary
caregiver. There were physical fights between Stella and Rick,
which Dylan seems to have witnessed. During this period, Dylan
attempted to run away to his foster family. Dylan testified (and
the superior court found) that Rick slapped Dylan at one point
during this period, leaving marks serious enough for a church
pastor to call the police to investigate (the investigation did
not result in a prosecution, and during the investigation Dylan
denied having been slapped, a denial Rick relies on in this
appeal to argue that the slap did not in fact in occur). Dylan
testified that Rick disciplined him by hitting him with a
spatula, by making him eat soap, and by making him drink vinegar.
Participation in counseling also declined during this
period: Dylan began missing sessions with Dr. Bock, and Rick
missed seven of seventeen home family sessions. Dylan and Rick
would return to counseling sporadically in response to specific
incidents. Rick then dropped the family out-of-home-based
services. Toward the end of the period of Rick's custody over
Dylan, in fall 2002, Dr. Turner evaluated Dylan and Rick. He
diagnosed Dylan as having "Reactive Attachment Disorder, Major
Depression, and Oppositional Defiant features. [Dylan] was also
sexually reactive." Dr. Turner concluded that this was caused by
Dylan's chaotic, violent home life, and recommended foster care.
During this period, Dylan also failed to show up for a remedial
summer reading program in which he was enrolled.
Rick's custody ended in December 2002. On December 12
no one picked up Dylan from the school bus stop. The next day
OCS removed Dylan from Rick's care. OCS returned Dylan to the
foster home where he had been placed before, and Dylan
immediately called these foster parents his mom and dad. The
foster parents noticed that Dylan was dirty by the time he got to
them; he had also been dirty and badly clothed during one of his
recent visits to Dr. Bock. Rick visited Dylan until March 2003,
when he was convicted of assaulting Stella. Rick was
incarcerated from March 2003 to February 2004, a month before the
termination trial began. Dylan is doing well with the foster
family.
B. Diane
Diane was born in May 1998. Her father is Rick (though
his paternity was not definitively established until much later),
and her mother is another woman, not Dylan's mother.
Rick and the mother apparently separated before Diane
was born. Rick met Diane for the first time at a birthday party
for another child. He took her home to his house for several
nights, and unsuccessfully petitioned a court to issue a
protective order to save "my child" (his words) from the mother,
whom Rick accused of abusing the child. In August 2001 the state
developed a case plan that called for Rick to visit Diane to get
to know her, but it appears Rick did not sign the case plan and
did not attempt to visit Diane. OCS took emergency custody from
the mother in October 2001, at which point Rick again
unsuccessfully sought custody, even though he also denied
paternity. OCS then returned Diane to her mother.
In January 2002 a paternity test confirmed Rick was the
father. OCS took custody of Diane for good in August 2002, based
on serious neglect and physical abuse by the mother. It appears
the first supervised visitation with Rick began five months later
in January 2003. The visits went poorly, with Diane rejecting
Rick. The visits lasted less than three months because Rick was
incarcerated in March 2003.
These supervised visits in early 2003 appear to be the
only contact Rick ever had with Diane, the four-day birthday
party interlude aside. According to Rick's attorney, these
visits "were, outside of a one-week prior period of time, . . .
the only time [Rick] ever got to see his daughter." OCS sent an
updated case plan to Rick in prison in January 2004, but he
replied by saying OCS should not send him any more forms and
should contact his attorney.2 Rick was released in February
2004, and made no attempt to contact OCS in the month between his
release and the termination trial.
C. Proceedings and Decision of the Superior Court
OCS filed termination petitions in April 2003 (Dylan)
and December 2003 (Diane). By stipulation, both children had
previously been adjudicated as children in need of aid. In both
cases the mothers ultimately did not contest termination of their
rights.
Rick's termination trial lasted four days, and was
devoted almost exclusively to issues related to Dylan. OCS's
witnesses included Dylan, Dr. Bock, Dr. Turner, the foster
mother, and OCS case workers. Rick did not testify himself, and
did not present any other witnesses.
Superior Court Judge Harold M. Brown issued separate
orders terminating Rick's rights to both children. In Dylan's
case, the termination was based on a finding of neglect, mental
abuse, and physical abuse. In Diane's case, the termination was
based on a finding of abandonment and neglect.
III. DISCUSSION
A. Statutory Scheme, Claims of Error, Standard of Review
To terminate parental rights, the department must
establish by clear and convincing evidence that the child "has
been subjected" to one of the eleven conditions enumerated in AS
47.10.011 that establish that a child is a "child in need of
aid."3 As described more below, one of these conditions is where
the parent is responsible for a "mental injury" to the child.4
Another condition occurs where a parent or guardian has
"abandoned" the child.5
A second relevant prerequisite to termination is a
finding (also by clear and convincing evidence) that the parent
has either (i) "not remedied the conduct or conditions in the
home that place the child at substantial risk of harm," or (ii)
"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."6
Rick challenges the superior court's order on the
ground that both these prerequisites were not properly
established with respect to either child - i.e., that there was
not clear and convincing evidence that the children were in need
of aid, and that he failed to remedy these harmful conduct or
conditions.
To the extent Rick's challenges are to the superior
court's factual findings, our review is for clear error.7
Whether particular facts are sufficient to support termination is
a question of law that we review de novo.8
B. Rick's Rights over Dylan Were Properly Terminated.
1. The superior court properly found that Dylan was a
child in need of aid.
The superior court found by clear and convincing
evidence that Dylan was a child in need of aid based on its
finding that Rick was responsible for mentally injuring Dylan
under AS 47.10.011(8). We think this was not erroneous.
Alaska Statute 47.10.011(8) says that a child is in
need of aid where, among other things, "conduct by or conditions
created by the parent . . . have (A) resulted in mental injury to
the child." Rick seems to concede that Dylan has suffered the
requisite mental injury, manifested by Dylan's aggressive,
sexually inappropriate behavior. Instead, Rick's argument is that
OCS failed to prove the cause of these injuries. Specifically,
Rick argues that the cause could have been the stepfather's early
sexual abuse of Dylan, rather than anything that Rick did while
he had custody. As proof, Rick notes that Dylan continued to
behave badly during Dylan's first placement in a foster home,
before he was returned to Rick's care. Rick also cites testimony
by Dr. Bock that childhood sexual abuse would usually leave
permanent scars. On this basis, Rick argues that the state
failed to carry its burden of proving that he caused the mental
injury by clear and convincing evidence.
We reject this argument, which is essentially an
argument that the superior court's factual findings were clearly
erroneous. Judge Brown based his "mental injury" finding on the
testimony of Dr. Turner and Dr. Bock, two clinical psychologists
who worked with Dylan and Rick over the years. Although Dr. Bock
agreed on cross-examination that any victim of sex abuse "may
well need periodic counseling," she and Dr. Turner were quite
clear that they thought Rick was, at a minimum, a major factor in
Dylan's emotional problems. Dr. Bock testified:
Any child, I think, that's involved in
[Rick's] home will run into problems with
using aggression and violence as a means of
problem-solving, they will lack appropriate
social skills, they will lack a stable home
and safety, they'll lack consistent parenting
by a set of parents, they will develop
difficulties or continue difficulties with
trust, autonomy and security, thus possible
atypical attachment patterns. They are
likely to have poor physical and sexual
boundaries. They are very unlikely to have
appropriate adult role models, either male or
female, and they will also be exposed to
illegal behavior.
They will be exposed, likely, to adult
sexuality which is age-inappropriate. They
will not have an opportunity to learn
appropriate, age-appropriate, social skills,
sexual behavior. Thus, their long-term
relationships in terms of intimacy and
generativity will be impaired.
Similarly, Dr. Turner said it was "extremely important" for Dylan
to live in a family free from violence and with a stable set of
caregivers. He also said that a "whole lot" of Dylan's emotional
disturbance was attributable to the instability and violence in
Rick's households:
He wasn't supervised. He was exhibiting
behaviors that you see with children who have
multiple caregivers. They tend to get real
chaotic in their behavior and a little
unpredictable. That he had - he has a
negative view of women and relationships with
women, in part because - because of his
father's modeling.
I felt that some of his opposition
behavior - I felt a whole lot of his
oppositional behavior and the behaviors that
were being seen with aggression and sexual
activity were what had been modeled for him
and there wasn't parenting specific to those
specific problems. And I had concerns about
[Rick's] ability to do so.
On the basis of this testimony, the superior court found that
Dylan's "sexual and aggressive behaviors were believed to be the
result of poor role modeling in the home." The superior court
also found that Dylan's problems "would increase with poor
supervision and monitoring, neglect, changing caregivers,
conflict, and change in residence" - these being the central
problems with Rick's custody of Dylan. These are findings of
fact, and the evidence above shows that they are not clearly
erroneous.
The superior court also found that Dylan was a child in
need of aid based on other subsections of AS 47.10.011 (such as
physical injury), but our determination that the mental injury
finding was not erroneous makes it unnecessary to consider Rick's
challenges to these other findings.
2. Rick failed to remedy the conduct placing Dylan at
substantial risk of harm.
Judge Brown found that Rick failed to remedy the
conduct placing Dylan at substantial risk of harm. This finding
was based on "the continued chaos in [Rick's] relationships,
repetitive assaultive and sexually inappropriate behaviors, and
chronic neglect of the child."
Rick's first challenge to this finding is that he
attended various counseling sessions, and that this constitutes a
remedy of his conduct. But this argument does not speak to
whether he had succeeded at controlling his anger, which was the
root cause of all the violence and chaos that produced Dylan's
mental injuries. The superior court finding cited above shows
Judge Brown's view that Rick had not succeeded at controlling his
anger. There was sufficient evidence to support this, including
Rick's assault of his girlfriend Stella in 2003 after several
years of counseling. We believe this behavior is a legally
adequate basis to conclude that he had not remedied the conduct
that led to Dylan's mental injuries.
Rick's second argument is that things were not so bad
for Dylan while he lived with Rick. Specifically, he argues that
Dylan was not present during any physical assaults of Rick's
spouses, and that he and Dylan lived mainly with only two of
Rick's girlfriends. But the discussion in the preceding section
establishes that things were bad indeed - i.e., the conditions
were sufficient to make Dylan a child in need of aid. Rick's
attempt to minimize the conduct that led to the adjudication is
not an independent argument about whether he ever remedied that
conduct.
We therefore conclude that the superior court did not
err in its finding that Rick failed to remedy the conduct that
led to Dylan's mental injuries.
C. Rick's Rights over Diane Were Properly Terminated.
Rick also challenges Judge Brown's findings that Diane
was a child in need of aid and that Rick failed to remedy the
conduct or conditions that harmed Diane.
1. The superior court properly found that Diane was a
child in need of aid.
Judge Brown found that Diane was a child in need of aid
based on abandonment, AS 47.10.011(1), and based on neglect, AS
47.10.011(9). We conclude that Judge Brown did not err in
finding that Rick abandoned Diane, which makes it unnecessary to
consider Rick's challenges to the neglect finding.
Alaska Statute 47.10.011(1) authorizes an adjudication
where "a parent or guardian has 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." The mother relinquished her
parental rights to Diane and seriously neglected her, so the
prerequisite related to "the other parent" is met. The remaining
requirement is in AS 47.10.013(a), which provides:
For purposes of this chapter, the court
may find abandonment of a child if a parent
or guardian has shown a conscious disregard
of parental responsibilities toward the child
by failing to provide reasonable support,
maintain regular contact, or provide normal
supervision, considering the child's age and
need for care by an adult.
The statute goes on to list certain instances that are also
included within the definition of abandonment; among these is
where the parent has "without justifiable cause . . . made only
minimal efforts to support and communicate with the child."9 In
G.C. v. State, Department of Health & Social Services, Division
of Family & Youth Services, we interpreted section .013 to impose
a two-part test: (1) there must be parental conduct evidencing a
"willful disregard" for parental obligations, leading to (2) the
destruction of the parent-child relationship.10 Rick does not
challenge the destruction of any parent-child relationship,
presumably because of the uncontested evidence that Diane was
unfamiliar with Rick and overtly rejected his affection; this
contrasted with her attachment to her foster mother and was
obviously based at least partially on Rick's absences from her
life.
Instead, Rick's arguments focus on whether his conduct
evidenced a "willful disregard" for his parental obligations.
Judge Brown found that Rick abandoned Diane by failing to
maintain contact in the periods before and after the supervised
visits of early 2003. But Rick argues that it was unreasonable
to expect him to visit or care for Diane during much of this
time, because his paternity was not confirmed until January 2002,
and because he was incarcerated between March 2003 and February
2004.
We reject Rick's arguments because there is undisputed
evidence that he had good reason to believe Diane was his
daughter dating back at least to May 2001, well before he went to
prison. It was at that time that Rick referred to Diane as "my
child" in court papers; he also sought custody on this basis on
several occasions before January 2002. This does not show that
Rick was sure of his paternity before the January 2002 paternity
test, but it does indicate he thought his paternity was at least
a likely possibility; in fact, OCS thought the likelihood was
high enough to give Rick a case plan to visit Diane in August
2001. This means that Rick knew Diane might well be his child,
was growing up without him, potentially in the same conditions of
neglect that led to his petition for a protective order after the
birthday party. Under these circumstances, we think it is fair
to say that Rick's failure to visit Diane during this period
constitutes a "conscious disregard" of parental obligations, and
a lack of effort to communicate with Diane "without justifiable
cause."11
We therefore think Rick's conduct in the period before
his incarceration was sufficient to sustain the abandonment
finding, but we note that the evidence also shows Rick's "willful
disregard" of his parental obligations in the period during and
after his prison sentence. Rick failed to contact OCS in the
month after he was released from prison in February 2004, and he
reacted negatively to OCS's case plan while in prison. Although a
parent may insist that OCS communicate through the parent's
lawyer, the tone of Rick's response ("I think you and your office
has caused me enough stress and abuse by kidnaping my son.")
makes it clear that Rick was not interested in participating in
the case plan, and by extension, not interested in visiting his
daughter.
Finally, we reject an argument Rick makes based on AS
47.10.080(o). This statute authorizes courts to terminate
parental rights where the parent "is scheduled" to be
incarcerated for "significant" periods of time and the parent has
not provided for any other caregiver. Rick points out that this
statute requires findings that were not made here, such as
whether Rick's period of incarceration was "significant." But
the statute is merely an additional, independent authority OCS
may rely on to terminate rights in cases where the parent's
incarceration itself is likely to injure the child in the future;
it does not supplant AS 47.10.088(a)(1)(A) and 47.10.011(1)
(abandonment) as grounds for terminating the rights of a parent
who has been previously incarcerated, and who has willfully
disregard parental obligations either before, during, or after
that incarceration.
Based on the foregoing, we conclude that termination of
Rick's rights to Diane was properly based on abandonment under AS
47.10.011(1).
2. Rick failed to remedy his abandonment of Diane.
Judge Brown found that Rick failed to remedy his
abandonment of Diane based on "the child's rejection and fear of
her father which the child demonstrated during visits." Rick
argues that this finding was erroneous, because Diane's rejection
of Rick "may well have been based on unrelated problems that had
occurred in her mother's household." It is plausible to assume
that Diane's abuse at the hands of her mother may have
contributed to her distrust of Rick, but it defies common sense
to suppose that the rejection was not also based in major part on
Rick's absence from her life. For example, Diane seems to have
bonded quite well with her foster mother. Rick's argument is
speculative, and does not establish that Judge Brown clearly
erred in his determination that Rick was to blame for Diane's
rejection.
An additional issue, not raised by Rick, is whether
Judge Brown's findings constitute a finding that Rick "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" within the
meaning of the failure-to-remedy provision.12 Specifically, the
question is whether Judge Brown's findings establish that
reuniting Diane with Rick would place the child at substantial
risk of a "mental injury."
Our cases indicate that a parent's willingness to
resume parental duties does not "remedy" abandonment if this
change of heart comes too late for the parent to bond with the
child during the critical early phase of the child's life.13 In
M.W. v. State, Department of Health & Social Services, the father
said he was ready to resume a role in his daughter's life, and
argued that under these circumstances there was no failure to
remedy the conduct that put the child at risk of harm.14 We
rejected this argument. We noted expert testimony in the record
in that case that it was important for a child to bond with its
parent in the "early months" of its life; we also noted
legislative findings indicating "the importance of expediting the
placement process for children under six years of age."15 On this
basis, we concluded that the "parent's attempt to resolve
abandonment by reappearing does not remedy the conduct unless the
attempt occurs within a reasonable amount of time."16
We believe the assumption underlying this decision is
that, where a young child has lived without the parent for a
significant period of time, that in and of itself may be
sufficient evidence to establish that reunification would put the
child at "substantial risk of . . . mental injury" within the
meaning of AS 47.10.088(a)(1)(B)(ii). Here, there is no expert
testimony about the importance of early bonding, but it was clear
that Rick spent almost no time with Diane in the five years of
her life preceding the termination trial. There was also
compelling evidence of Diane's "rejection and fear of her father"
during the brief supervised visits that did occur We believe
this rejecting behavior indicates the mental injury clearly
enough to establish Rick's failure "within a reasonable time" to
remedy the conduct that led to Diane's mental injury, even
assuming Rick were ready to assume custody or visitation of Diane
today. We therefore find no error in Judge Brown's failure-to-
remedy finding.
IV. CONCLUSION
We AFFIRM the judgments of the superior court.
_______________________________
1 Pseudonyms have been used to protect the privacy of the
parties.
2 According to the caseworker who received the note and
appeared to read from it at trial, Rick said, "I do not wish to
receive any type of forms or letters from you. Please contact me
through my [attorney] . . . . I think you and your office has
caused me enough stress and abuse by kidnaping my son."
According to court papers submitted by Rick's attorney, the case
plan covered Diane as well Dylan.
3 AS 47.10.088(a)(1)(A). Where as here the parents have
previously stipulated that a child should be adjudicated as being
in need of aid, OCS still has the burden of proving in the
subsequent termination proceeding that the children were in need
of aid by the "clear and convincing" standard. See D.M. v.
State, Div. of Family & Youth Servs., 995 P.2d 205, 208 (Alaska
2000).
4 AS 47.10.011(8)(A).
5 AS 47.10.011(1).
6 AS 47.10.088(a)(1)(B).
7 E.g., G.C. v. State, Dep't of Health & Soc. Servs.,
Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003).
8 Id.
9 AS 47.10.013(a)(2).
10 67 P.3d 648, 651-52 (Alaska 2003).
11 AS 47.10.013(a) & (a)(2).
12 AS 47.10.088(a)(1)(B)(ii).
13 See M.W. v. State, Dep't of Health & Soc. Servs., 20
P.3d 1141 (Alaska 2001).
14 Id. at 1145.
15 Id. (footnote omitted).
16 Id.
