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Wendell C. II v. State of Alaska (07/29/2005) sp-5929
Wendell C. II v. State of Alaska (07/29/2005) sp-5929
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
| WENDELL C. II,
| ) |
|
| ) Supreme Court No. S-
11601 |
|
Appellant, | ) |
|
| ) Superior Court
Nos. |
|
v. | ) 2KB-01-16/17/18/19/20
CP |
|
| ) 2KB-02-32
CP |
|
| ) |
|
STATE OF ALASKA, OCS, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
)
VANESSA G., ) Supreme Court No. 11604
)
Appellant, ) Superior Court Nos.
) 2KB-01-16/17/18/19/20 CP
v. ) 2KB-02-32 CP
)
STATE OF ALASKA, OCS, )
) O P I N I O N
Appellee. )
) [No. 5929 - July 29, 2005]
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Richard H. Erlich, Judge.
Appearances: Robert D. Lewis, Lewis &
Thomas, P.C., Nome, for Appellant Wendell C.
II. William B. Oberly, The Law Offices of
William B. Oberly, Anchorage, for Appellant
Vanessa G. Jeffrey P. Stark, Assistant
Attorney General, Anchorage, Scott J.
Nordstrand, Acting Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The issue in these appeals is whether the superior
court improperly considered social science research outside the
record in terminating Wendell C.s and Vanessa G.s parental rights
to their four youngest children.1 We conclude that the superior
courts consideration of the studies did no harm because there is
no reasonable likelihood that exclusion of the studies would have
affected the courts decision to terminate the parents rights.
Consequently, we affirm.
II. FACTS AND PROCEEDINGS
Wendell and Vanessa are appealing the termination of
their parental rights to four of their children, Paula (born
2/16/95), William (born 9/18/96), Donald (born 6/20/01), and
Julius (born 10/9/02).2 All four are Indian children for
purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-
1963.
Wendell and Vanessa have received social services since
1998 because of alcohol abuse and domestic violence. Wendell
testified that he started drinking alcohol when he was seventeen
or eighteen years old, and that the longest he has been sober
since then was for eight months when he was nineteen or twenty.
Wendell has gone to jail at least four times and admits that
alcohol was involved every time. Additionally, there was
testimony that Wendell has assaulted Vanessa and his parents many
times while drunk, and the children have witnessed some of these
incidents.
Both Wendell and Vanessa attended two alcohol
rehabilitation programs in 2002 but relapsed soon after each
program. Vanessa completed another rehabilitation program in
December 2003 but attended only one aftercare session and
apparently resumed drinking. Her landlord testified that after
she completed the program he received numerous complaints about
drinking and fighting at her furnished apartment, that each time
he went to give her warnings he found that she had been drinking,
and that when she moved out, the furnishings were broken and the
apartment was filthy.
Paula, William, and Donald were placed in state care in
April 2002 and have been together in a foster home since July
2003. Julius has been in state care since he was one month old
since November 2002.
In July 2004 the superior court terminated both parents
rights with respect to the four children. In its opinion, the
court cited a number of studies detailing the effect of
alcoholism and domestic violence upon families, and the
developmental needs of children. The studies were not admitted
into evidence; neither the parties nor the expert witnesses who
testified at the termination trial had even mentioned them.3 The
parents appeal, contending that the superior court improperly
relied on the studies.
III. STANDARD OF REVIEW
Whether factual findings are sufficient to satisfy the
child in need of aid (CINA) statutes and rules and the Indian
Child Welfare Act (ICWA) is a question of law that we review de
novo, adopting the rule of law that is most persuasive in light
of precedent, reason, and policy.4 We also apply our independent
judgment when deciding due process claims.5
IV. DISCUSSION
Wendell and Vanessa argue that by citing the social
science studies, the court improperly considered evidence outside
the record.
A court may use extra-record facts to prove a fact or
element in the case by taking judicial notice of that fact.
Alaska Evidence Rule 201(a) defines judicial notice of a fact as
a courts on-the-record declaration of the existence of a fact
normally decided by the trier of fact, without requiring proof of
that fact.6 A fact can be judicially noticed only if it is not
subject to reasonable dispute in that it is either (1) generally
known within this state or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.7 The parties can contest the taking
of judicial notice: Upon timely request, a party is entitled to
be heard as to the propriety of taking judicial notice and the
tenor of the matter noticed. In the absence of proper
notification, the request may be made after judicial notice has
been taken.8
Wendell argues that the studies were not properly the
subject of judicial notice because they were subject to
reasonable dispute. In addition, he and Vanessa assert that even
if the facts were ones that could be judicially noticed, they
were not given an opportunity to challenge the taking of judicial
notice because they first discovered the courts use of the
studies in its memorandum opinion. Lastly, Wendell and Vanessa
contend that the lack of notice violates their rights to due
process.
Because we conclude that there is no reasonable
likelihood that the superior courts decision to terminate
parental rights would have been different absent the social
science studies cited in the opinion, we affirm the superior
courts decision without deciding whether or how Rule 201 should
apply to this case.9 We hasten to add that even if the superior
courts reliance on these studies was not covered by Rule 201 at
all,10 still the better practice would be to inform the parties in
advance of the studies the court intends to rely on, so as to
give the parties an opportunity to challenge this research.11
Under the CINA statutes and rules and ICWA, a trial
court must make several findings before it may terminate parental
rights. The superior court cited to the challenged materials in
making two of these findings: (1) that clear and convincing
evidence shows that the parents have not remedied the conditions
or conduct placing the children at risk, or have failed to make
sufficient progress in a reasonable period of time such that the
children remain at a substantial risk of harm;12 and (2) that a
preponderance of the evidence shows that the department has made
active but unsuccessful efforts to provide services to prevent
the breakup of the family.13 We consider the evidence in the
record supporting each of these findings below.
A. Clear and Convincing Evidence Establishes that the
Parents Have Not Remedied the Conduct and Conditions
Within a Reasonable Time.
The parents challenge the superior courts finding that
the parents failed to remedy their conduct within a reasonable
time under AS 47.10.088(a)(1)(B).14 They point to the superior
courts citation of social science data suggesting that alcoholic
parents who abuse each other also tend to abuse their children;
that attempts to recover from alcoholism are often unsuccessful;
and that young children tend to have pressing emotional needs
that cannot be put off. Although the superior court provided
numerous citations to this research, we think there was no
reasonable likelihood that these references changed any part of
the result. This is because the superior court made so many
other specific findings, based on admissible evidence, that were
sufficient to establish the parents failure to take steps to
recover from alcoholism in time to meet the needs of their
troubled children.
First, the superior court found that the parents drink
and engage in domestic violence with each other, and that this
behavior alone has had an impact on the children, irrespective of
any potential for physical abuse of the children. The effects on
the children include attachment disorders that clearly preclude a
lengthy, contingent return to parental custody. For example, the
superior court found that Julius is at risk for fetal alcohol
spectrum disorder, that he has attachment problems and is
attached only to his foster mother; that Daniel is at risk for
attachment problems; that William was affected by the family
violence, noting testimony that his relationship with his parents
was confusing and that he saw Paula as his protector; and that
Paula was similar to William, noting testimony that her problems
had become more severe (e.g., she was striking out and
emotionally shutting down). The superior court further found
that these emotional problems became less severe as some of the
children entered foster care and began bonding with foster
parents. We believe these findings are primarily what led the
superior court to conclude that the children cannot wait for
their parents to recover from their alcoholism, and we think
there is no reasonable likelihood that this conclusion would have
been different absent the social science citations.
Second, the superior court found, citing testimony by
specialists familiar with the parents treatment history, that
both parents would need to undertake lengthy treatment for
alcoholism (e.g., of one to two years in Vanessas case), and that
success did not seem likely in either case. It is clear to us
that this conclusion was also based on the trial evidence, and
that it would not have been different had the superior court not
consulted the academic articles.
Third, these findings are sufficient to sustain the
legal conclusion that the parents failed to remedy their conduct
in a reasonable time. The superior court found (in a part of its
opinion that the parents do not challenge) that the children were
children in need of aid under (among other provisions) AS
47.10.011(10), which permits a CINA adjudication where the
parents use of alcohol has substantially impaired their ability
to parent and resulted in a substantial risk of harm to the
children. The findings recited above establish a failure to
remedy this conduct in a reasonable time: the parents would have
to engage in a treatment procedure of one to two years, the
prospects for success were poor, and the childrens attachment
problems made it imperative to eliminate contingencies in their
relationships with their care givers. These circumstances
suffice to establish a failure to remedy conduct, in light of the
low likelihood of returning the child to the parent within a
reasonable time based on the childs age or needs.15
B. A Preponderance of the Evidence Supports that the
Department Made Active but Unsuccessful Efforts To
Reunify Wendell and Vanessa with Their Children.
Wendell argues that no evidence in the record supports
the superior courts finding that there were active efforts to
provide remedial programs designed to prevent the break-up of the
family and he contests the use of another social science study in
this portion of the courts opinion.
Wendell argued before the superior court that the
department should have considered alternatives other than that he
needed to quit drinking alcohol to reunify his family, such as
developing a safety net for the children when he and Vanessa were
drinking. The superior court discounted Wendells safety net
argument by pointing out that his testimony was replete with
statements that he agreed he needed to stop drinking in order to
retain custody of his children, and by noting that Wendell
presented no evidence that a safety net approach would work. The
superior court then quoted a social science study indicating that
maternal alcoholism may result in negative impacts on the mother-
child relationship, apparently to support a conclusion that the
feasibility of a safety net approach may be difficult to prove.
We conclude that this study is a harmless side note that has
nothing to do with the courts determination that Wendell was
provided with active efforts in the form of alcohol treatment
programs. In light of the harm to the children that had already
resulted from alcoholism (as recounted above), we also believe
that the departments decision to make Wendells abstinence a
precondition to reunification was reasonable, and that the
superior court did not err in finding that efforts based on this
precondition were sufficiently active efforts to reunify the
family within the meaning of the statute.
Vanessa also argues that the record does not support
the active efforts finding because when she was progressing
through her third treatment program, the department did not
support her but instead changed her case plan goal from
reunification to adoption. The active efforts finding in her
case is supported by the two alcohol treatment programs provided
to Vanessa in 2002. Although she completed both programs, she
relapsed soon after each one. At that point, the department
sought permanency for the children. We agree with the superior
court that the department engaged in sufficiently active efforts
by helping place Vanessa in two alcohol treatment programs
essential to reunifying her with her children. After two
relapses, it was not required to do more, even if its change of
course was abrupt.
V. CONCLUSION
We AFFIRM the superior courts decision to terminate
Wendells and Vanessas parental rights over Paula, William,
Donald, and Julius.
_______________________________
1 We use pseudonyms to protect the privacy of the
parties.
2 Vanessa also has two older children for whom Wendell is
the Indian custodian. Although these children also are in state
care, the superior court declined to terminate Vanessas and
Wendells parental rights as to them, and they are not involved in
this appeal.
3 The superior court distributed one of the articles to
the parties.
4 E.g., Stanley B. v. State, DFYS, 93 P.3d 403, 405
(Alaska 2004) (internal quotation marks omitted).
5 Carvalho v. Carvalho, 838 P.2d 259, 261 n.4 (Alaska
1992).
6 Alaska R. Evid. 201(a). See Commentary to Alaska R.
Evid. 201(a) (Rule 201 restricts only the power of the court to
declare on the record, without resort to formal proof, that a
particular fact exists, i.e., that something is actually true,
where the fact involved is one that would otherwise be decided by
the trier of fact upon submission of proof by the parties. No
other practice falls within the scope of this Rule.).
7 Alaska R. Evid. 201(b).
8 Alaska R. Evid. 203(a).
9 See Alderman v. Iditarod Properties, Inc., 104 P.3d
136, 142 (Alaska 2004) (The admission of evidence, even if
erroneous, is harmless when there is no reasonable likelihood
that the admitted evidence had an appreciable effect on the
courts decision.); see also Concerned Citizens of S. Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 451 (error in
taking of judicial notice was harmless). Specifically, we do not
decide whether the facts noticed based on these social science
materials were facts of a type normally decided by the trier of
fact under Rule 201(a); if so, whether the facts could be
properly noticed under Rule 201(b); and if so, whether a prior
warning to the parties was required under Rule 201(d).
10 See Commentary to Alaska R. Evid. 201(a) (One aspect
not covered by Rule 201 involves assumptions made by the court in
its determinations of policy; e.g., that a particular change in
the law would probably do more harm than good.).
11 Cf. 1 Joseph M. McLaughlin et al., Weinsteins Federal
Evidence 201.51[2], at 201-87 (2d ed. 1987) (Judges should
proceed cautiously in taking judicial notice of legislative
facts, by giving the parties an opportunity to present rebutting
information in advance of the courts reliance on the fact.).
12 AS 47.10.088(a)(1)(B); CINA Rule 18(c)(1)(A).
13 25 U.S.C. 1912(d); CINA Rule 18(c)(2)(B).
14 AS 47.10.088(a)(1)(B) says that parental rights cannot
be terminated unless the superior court finds that the parent:
(i) has not remedied the conduct or
conditions in the home that place the child
at substantial risk of harm; or
(ii) has failed, within a reasonable time, to
remedy the conduct or conditions in the home
that place the child in substantial risk so
that returning the child to the parent would
place the child at substantial risk of
physical or mental injury.
In making this determination, the court may consider the
likelihood of returning the child to the parent within a
reasonable time based on the childs age or needs. AS
47.10.088(b)(1).
15 AS 47.10.088(b)(1); see also Sherry R. v. State, Dept
of Health & Soc. Servs., Div. of Family & Youth Servs., 74 P.3d
896, 902-03 (Alaska 2003).
